California courts and Legislature greatly expanded protections for public and private workers in 2017, handing down decisions and passing laws regarding wages, discrimination based on criminal and salary histories, immigration enforcement and harassment training, among other things.
 
In this two-part series, Best Best & Krieger LLP gives and in-depth look at the new laws and rule changes impacting public and private employers and employees.
 
The following laws were effective Jan. 1, unless otherwise noted:
 
AB 46 – Employers: wage discrimination.
This measure expands California’s Fair Pay Act, which prohibits private employers from paying workers differently based upon their sex, race, or ethnicity, to include public employers and the state Legislature.
 
If a wage gap does exist between employees of a different sex, race or ethnicity performing substantially similar work, an employer must demonstrate a non-discriminatory reason for the disparity.
 
As the law states, any wage variances must be based on at least one of the following factors:

• a seniority or merit system,
• measurements of earnings by the quantity or quality of production or
• another “bona fide factor,” such as education, training or experience.

SB 63 – Unlawful employment practice: parental leave.
The New Parent Leave Act creates new family leave requirements to employers with 20 to 49 workers.
 
The law, which is nearly identical to the California Family Rights Act’s baby bonding leave that applies to employers with 50 or more workers, affords eligible employees 12 weeks of unpaid, job-protected leave to bond with a new child within the first year of birth, adoption or foster placement. The law prohibits employers from refusing eligible employees leave and from discriminating against employees who exercise their rights.
 
Employees qualify if: they have worked for the employer for at least 12 months, worked at least 1,250 hours in the last 12-month period and work at a site within a 75-mile radius with at least 20 employees.
 
During leave, employees can utilize accrued vacation pay, paid sick time, or any other paid or unpaid time off, and employers must maintain and pay for coverage under a group health plan.
 
AB 168: Employers: salary information.
To stop wage discrimination that could follow a person from one job to another, this salary-privacy bill prohibits employers from inquiring – either directly or through a third-party recruiter – about an applicant’s past compensation and benefits.
 
Employers must also provide applicants with a wage scale for the applied position upon request.
 
Without prompting, applicants may voluntarily provide their salary history. These salary-disclosure restrictions do not apply to public salary information revealed under the California Public Records Act and Freedom of Information Act.
 
SB 306: Retaliation actions: complaints: administrative review.
Existing California law protects employees from being discharged, discriminated or retaliated against for engaging in protected conduct.
 
SB 306 expands the California Labor Commissioner’s authority to investigate an employer, with or without a filed complaint, if retaliation or discrimination is suspected during the course of another investigation. The bill also authorizes the Labor Commissioner to seek temporary or permanent injunctive relief if “reasonable cause” exists — a burden of proof lowered from an “irreparable harm” finding.
 
If employers fail to comply with the Labor Commissioner’s final order, they could face civil penalties of $100 a day. Employers issued a citation for retaliatory acts may challenge the citation.
 
SB 396: Employment: gender identity, gender expression, and sexual orientation.
California’s Fair Employment Housing Act now requires that mandatory sexual harassment trainings expressly include a discussion of gender identity, gender expression and sexual orientation protections.
 
The law requires employers with 50 or more employees provide supervisors these trainings every two years and must display the Department of Fair Employment and Housing’s transgender rights poster.
 
AB 450: Employment regulation: immigration worksite enforcement actions.
This law goes hand-in-hand with SB 54 – California’s “sanctuary state” law – which prohibits state and local agencies from using recourses to aid Immigration and Customs Enforcement officials, unless a person is convicted of one of 800 crimes.
 
The Immigrant Worker Protection Act, AB 450, pertains specifically to employers. It prevents both public and private employers from cooperating with federal immigration agencies and voluntarily providing agents with access to a non-public workplace and employee records, except where legally required by a warrant or subpoena.
 
The law also prohibits employers from re-verifying an employee’s work eligibility unless required under federal law. Employers can face up to $10,000 fines for violations.
 
The law does not apply to Form I-9 inspections. Beginning July 1, employers are required to post an immigration inspection notice within 72 hours of receiving a notice of inspection.
 
AB 1008: Employment discrimination: conviction history.
All employers with five or more employees are now prohibited from inquiring about an applicant’s criminal past until after a conditional job offer is made. Prior to this law, public employers were already abiding by a “ban the box” initiative preventing such inquiry prior to conditional offer.
 
To deny an applicant employment based on a conviction, employers must conduct an individual assessment to determine whether the conviction has a “direct and adverse relationship with the duties of the job.” If the position is denied because of a conviction history, applicants must be provided with written notice of the preliminary decision and given five days to respond before a final decision is made.
 
AB 1556: Employment discrimination: unlawful employment practices.
The California Fair Employment and Housing Act prevents employers and landlords from discriminating against a person seeking employment or housing on account of race, sex, gender identity or expression, religion, disability, marital status and sexual orientation, among other things.
 
AB 1556 revised these provisions to remove any gender-specific wording — for instance, replacing “female person” and “female employee” with simply “person” and “employee.”
 
AB 1701: Labor-related liabilities: original contractor.
This bill imposes liability onto an original contractor for the wage-and-hour violations of a sub-contractor. It applies to contracts entered after Jan. 1, 2018. This does not apply to work done by state employees or a subdivision of the state.
 
Next in the New Labor & Employment Law Legal Alert Series:
California’s Labor & Employment Changes for 2018 Part II, which will provide an in-depth look at the noteworthy court cases from 2017 that impact public and private employers and their employees.

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