EMPLOYMENT LAW UPDATES FOR 2018 AND BEYOND

The following article regards some California employment laws that took effect in 2018 and recent amendments thereto, as well as some laws that will take effect in the near future that may affect your business. We advise you to review the contours of these laws carefully and alter your policies accordingly. We are available to assist you should you have any questions or concerns.

SALARY INFORMATION

Employers are prohibited from asking salary information of an applicant. Employers are also prohibited from relying on salary history as a factor in determining salary for a new employee, unless the employee disclosed his or her salary history voluntarily and without prompting. In addition, an employer is required to provide the pay scale for a position upon an applicant's reasonable request.

On July 18, 2018, Governor Brown signed legislation amending the law to define "pay scale" to mean a salary or hourly wage range and to define "reasonable request" to mean a request made after an initial interview with the employer. Moreover, the amended law clarifies that an employer may ask an applicant regarding his or her salary expectations for the position.

EMPLOYERS BANNED FROM ASKING CRIMINAL HISTORY ON APPLICATIONS

Employers, state agencies, and public utilities with five or more workers are banned from including, on an application, any questions about an applicant's conviction history. Employers are not to consider a person's criminal background until the applicant has received an offer. An employer may not take back the offer until it has made an individualized assessment of whether the applicant's conviction history has a direct and adverse relationship with the specific duties of the job, and the employer must consider certain specified topics when making that assessment. An employer who makes a preliminary decision to deny employment based on that individualized assessment must provide the applicant written notification of the decision, containing certain specified information. The applicant has five business days to respond to that notification before the employer may make a final decision. If the applicant notifies the employer in writing that he or she disputes the accuracy of the conviction history and is obtaining evidence to support that assertion, the applicant gets an additional five business days to respond to the notice.

WORK SITE IMMIGRATION ENFORCEMENT AND PROTECTIONS

Workers are protected from immigration enforcement while on the job. An employer or someone acting on behalf of an employer is not allowed to let an immigration agent enter non-public areas of a work place unless the agent has a warrant. Moreover, an employer is required to notify its employees of an upcoming inspection to be conducted by an immigration agency within 72 hours of receiving the federal notice of inspection. Public and private employers can face fines up to $10,000 for each violation.

MINIMUM WAGE

As of January 1, 2018, the state minimum wage increased to $10.50 per hour for employers with 25 or fewer workers, and $11 per hour for employers with 26 or more employees. On January 1, 2019, the state minimum wage will increase to $11 per hour for employers with 25 or less employees and $12 per hour for employers with 26 or more employees. Keep in mind that certain cities set their own minimum wages, which may exceed the state minimum wage.

MANDATORY MANAGEMENT TRAINING AND POSTING ON GENDER IDENTITY, GENDER EXPRESSION, AND SEXUAL ORIENTATION HARASSMENT

Pursuant to the Transgender Work Opportunity Act, effective January 1, 2018, employers with 50 or more employees are required to include, as a component of their mandatory, biennial anti‑sexual harassment training, training on gender identity, gender expression, and sexual orientation harassment.

Further, employers must prominently display a poster regarding transgender rights in the workplace, which can be found on the website of the Department of Fair Employment and Housing (DFEH).

Additionally, California employers should be aware of the following poster requirements:

1. All California employers must either display the poster, or distribute the brochure, titled "The Facts about Sexual Harassment," revised April 2017. Both the poster and brochure were updated to reflect the minimum information that employers are required to provide under California Government Code section 12950(b). Because the content was revised, all employers must utilize the revised materials.

2. All California employers must have a compliant version of the Workplace Discrimination poster titled "California Law Prohibits Workplace Discrimination and Harassment." Only the design was changed, so any version from December 2014 to the present is compliant.

3. If the employer has five or more employees, it must also display the "Rights and Obligations as a Pregnant Employee" notice. Any version from April 2016 to the present is compliant. Note that employers are also required to give an employee a copy of this notice as soon as practicable after being notified of her pregnancy.

4. If the employer has 50 or more employees, it must also display the "CFRA/Pregnancy Disability Leave" notice. Any version from July 2015 is compliant.

EXPANSION OF PARENTAL BABY BONDING LEAVE PROTECTIONS

Prior law requires larger employers to provide protected parental bonding leaves to eligible employees. The New Parent Leave Act ("NPLA"), expands such protection to smaller employers. The NPLA requires that employers with 20 or more employees (1) provide up to 12 weeks of unpaid, job-protected parental leave (leave to bond with a new child within one year of the child's birth, adoption, or foster-care placement) to employees who request such leave if the employee has more than 12 months of service, at least 1,250 hours of service during the previous 12‑month period, and works at a worksite in which the employer employs at least 20 employees within 75 miles; (2) maintain group health‑plan coverage for such an employee during the parental leave (the employer may recover costs if the employee fails to return from leave and the failure is for a reason other than continuation, recurrence, or onset of a serious health condition or other circumstances beyond the control of the employee); (3) on or before commencement of the leave, provide the employee with a guarantee of employment in the same or a comparable position upon the termination of the leave; and (4) allow the employee to use accrued vacation, paid sick time, or other accrued paid time off, or other paid or unpaid time off negotiated with the employer, during the leave. The NPLA also prohibits discrimination, retaliation, and interference related to rights under the Act. The right to leave under the NPLA is in addition to any rights an employee has to a Pregnancy Disability Leave, which rights apply to employers with five or more employees.

GENERAL CONTRACTORS MAY BE HELD LIABLE FOR THE WAGE AND HOUR VIOLATIONS OF THEIR SUBCONTRACTORS

General contractors are directly liable to pay wages, fringe benefits, or other benefit payments or contributions owed by their subcontractors. The law applies to contracts entered into after January 1, 2018, for the erection, construction, alteration, or repair of a building, structure, or other work between direct contractors and subcontractors. Notably, the law does not require employees to exhaust their remedies against the employing subcontractor before proceeding against the general contractor. Under the law, general contractors are not liable for penalties or liquidated damages. Also, the law permits general contractors to verify wages actually owed. Upon request, subcontractors must provide payroll records containing information sufficient to inform the direct contractor of the wages owed. If a subcontractor fails to provide the requested information, a general contractor may withhold the disputed wages. Only certain parties are authorized to pursue enforcement of this law: (1) the Labor Commissioner, (2) a third party owed fringe or benefit payments, or (3) a joint labor‑management cooperation committee.

Right to Receive Wage Records

On September 17, 2018, Governor Brown approved Senate Bill 1252, which clarifies that an employee's right to inspect certain wage records pursuant to Labor Code Section 226 also means that the employee has a right to receive those records.

PRIVATE ATTORNEY GENERAL ACT RELIEF

On September 19, 2018, Governor Brown approved Assembly Bill 1654, which bars employees in the construction industry who are subject to a collective bargaining agreement with certain provisions, including a grievance and binding arbitration procedure, from bringing claims under the Private Attorneys General Act until the agreement expires or January 1, 2028, whichever is earlier.

CA Paid Family Leave Extended

On September 27, 2018, Governor Brown approved Senate Bill 1123, which, on and after January 1, 2021, expands the scope of the family temporary disability insurance program to include time off to participate in a qualifying exigency related to the covered active duty or call to covered active duty of the individual's spouse, domestic partner, child, or parent in the armed forces of the United States. The bill would, when an employee for the first time requests leave because of a qualifying exigency arising out of the covered active duty or call to covered active duty, or notification of an impending call or order to covered active duty, of the employee's spouse, domestic partner, child, or parent in the armed forces of the United States, authorize the Employment Development Department to require the employee to provide a copy of the covered active duty orders or other documentation issued by the military that indicates that the employee's spouse, domestic partner, child, or parent is in the armed forces of the United States, is on covered active duty or call to covered active duty, and the dates of the covered active duty service.

Human Trafficking Awareness Training

On September 27, 2018, Governor Brown approved Senate Bill 970, which requires that employees who are likely to interact or come into contact with victims of human trafficking (e.g., receptionists, housekeepers, and drivers) go through 20 minutes of classroom or other interactive training regarding human trafficking awareness.

LACTATION ACCOMODATION

On September 30, 2018, Governor Brown approved Assembly Bill 1976, which requires employers to make reasonable efforts to provide employees with the use of a location other than a bathroom to express breast milk.

Restrictions On Confidentiality Of Sexual Harassment/Discrimination Settlements

On September 30, 2018, Governor Brown approved Senate Bill 820, which prohibits a provision in a settlement agreement entered on or after January 1, 2019 that prevents the disclosure of factual information relating to certain claims of sexual assault, sexual harassment, or harassment or discrimination based on sex, that are filed in a civil or administrative action. Any such provision will be void as a matter of law and against public policy. In addition, a court may consider the pleadings and other papers in the record, or any other findings of the court, in determining the factual foundation of the causes of action specified in these provisions. An exception will apply for a provision that shields the identity of the person bringing the claim and all facts that could lead to the discovery of his or her identity, if the provision is included in the settlement agreement at the request of the person bringing the claim. This exception will not apply if any party is a government agency or public official.

Restrictions Regarding Preventing Future Testimony

On September 30, 2018, Governor Brown approved Assembly Bill 3109, which makes a provision in a contract or settlement agreement void and unenforceable if it waives a party's right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or sexual harassment.

New Requirements For Sexual Harassment Training

On September 30, 2018, Governor Brown approved Senate Bill 1343, which changes the requirements for workplace sexual harassment prevention training. The changes include the following:

  • Training required by small businesses: Employers with at least 5 employees are now required to provide training to their employees.
  • Training is no longer limited to supervisory employees: Employers are now required to provide sexual harassment prevention training to all employees, including non-supervisory employees. The training for non-supervisory employees must entail one hour of classroom or other interactive training and education regarding sexual harassment; the training for supervisory employees must entail two hours of classroom or other interactive training and education regarding sexual harassment.
  • Training required within six months of job commencement: Employees must undergo training within six months of starting their jobs. Seasonal or temporary employees (or any employees that will be employed less than six months) need to undergo training within 30 days or 100 hours of starting their jobs, whichever comes first.

"Hostile Work Environment" DEFINITION; Release/Non Disparagement Agreements

On September 30, 2018, Governor Brown approved Senate Bill 1300, which decrees that a single incident of harassing conduct is sufficient to create a triable issue of hostile work environment if the conduct interfered with a plaintiff's work performance or otherwise created an intimidating, hostile, or offensive work environment.

The law also makes it unlawful for an employer to require an individual to sign a release or non-disparagement agreement that purports to deny the individual the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment, in exchange for a raise, bonus, or continued employment. An agreement or document in violation of the foregoing is contrary to public policy and unenforceable. An exception applies if the employee is represented by counsel, and the release and/or non-disparagement provision appears in a negotiated settlement agreement.

Boards OF PUBLIC CORPORATIONS Are Required To Include Women

On September 30, 2018, Governor Brown approved Senate Bill 826, which requires that, by the end of 2019, all California publicly-held corporations, and foreign publicly-held corporations with their principal executive offices located in California, have a minimum of one female on their board of directors; and by the end of 2021, a minimum of 2 female directors if the corporation has 5 total directors, or 3 female directors if the corporation has 6 or more total directors. Failure to comply will result in fines ($100,000 for the first violation and $300,000 for subsequent violations). The law defines "female" as an individual who self-identifies her gender as a woman, without regard to the individual's designated sex at birth.

Sexual Harassment Claims

On September 30, 2018, Governor Brown approved Senate Bill 224, which creates a cause of action for sexual harassment where: (1) the plaintiff proves there is a business, service, or professional relationship between plaintiff and defendant, or defendant holds himself or herself out as being able to help plaintiff establish a business, service, or professional relationship with the defendant or a third party; (2) defendant has made sexual advances, solicitations, sexual requests, demands for sexual compliance, or other verbal, visual, or physical conduct of a sexual or hostile nature based on gender that were unwelcome and pervasive or severe; and (3) the plaintiff suffered or will suffer economic loss or personal injury. The law specifically includes investors, elected officials, lobbyists, directors, and producers among those listed persons who may be liable to a plaintiff for sexual harassment. Listed persons previously included, and will continue to include, attorneys, holders of a master's degree in social work, real estate agents, and real estate appraisers.

Talent AgencY SEXUAL HARASSMENT RequireMENTS

On September 30, 2018, Governor Brown approved Assembly Bill 2338, which requires that, prior to the issuance of a permit to employ a minor in the entertainment industry, an age-eligible minor and the minor's parent or legal guardian must receive and complete training in sexual harassment prevention, retaliation, and reporting resources. A talent agency must request and retain a copy of the minor's entertainment work permit prior to representing or sending a minor artist on an audition, meeting, or interview for engagement of the minor's services. Failure to comply will result in a $100 fine for each violation.