On October 12, 2017, California Governor Jerry Brown signed several bills regulating a wide range of employer actions, everything from the labeling of cleaning fluids to the employment application process. While compliance with all of these new laws is important, four are of particular importance as they directly impact the information employers can seek from potential applicants, the training that must be provided to current employees, and protected leaves.
AB 168 and AB 1008 restrict the information employers can obtain from potential job applicants. AB 168 makes it unlawful for California employers to either obtain or rely upon an applicant’s salary history to determine whether to offer an applicant a job or what salary to offer an applicant. The law, however, does not prohibit a job applicant from voluntarily and without prompting disclosing to a prospective employer his or her salary history. If a job applicant voluntarily discloses information in this way, then the employer is permitted to rely upon that history in determining the salary for that applicant.
AB 1008 imposes a statewide “ban-the-box” law. Specifically, this law prohibits California employers with five or more employees from (1) including on any application for employment any question that seeks the disclosure of an applicant’s conviction history or (2) inquiring into or considering an applicant’s conviction history prior to providing that applicant with a conditional offer of employment. The law also provides that employers who intend to deny an applicant a position of employment based upon that applicant’s conviction history must make an individualized assessment as to whether the applicant’s prior criminal history has a detrimental impact on the prospective employment. Employers must also provide applicants with notice of a preliminary decision to deny employment based on the individualized assessment and allow applicants the opportunity to challenge the accuracy of their conviction history. Prior to the signing of AB 1008, many local jurisdictions had enacted similar ordinances prohibiting the use of an applicant’s prior conviction history in the initial application process. With passage of AB 1008, this prohibition is now statewide.
SB 63 is important because it extends certain family leave protections to employees working for smaller California employers. Pursuant to the Family Medical Leave Act and the California Family Rights Act, employers must provide employees with protected medical leave as well as maternity and paternity leave. These laws, however, only apply to employers with 50 or more employees. SB 63 provides that employers with 20 or more employees must provide up to 12 weeks of protected maternity and paternity leave to their employees. In order to be entitled to these protections, the employee must have more than 12 months of service and have worked at least 1,250 hours of service with the employer during the previous 12-month period.
Finally, SB 396 expands California employers’ training obligations. Under the California Fair Employment and Housing Act employers with 50 or more employees are required to provide certain training and education to their employees regarding sexual harassment. SB 396 mandates that this training also cover harassment based on gender identity, gender expression, and sexual orientation. The law also requires employers to display a poster regarding transgender rights.
California employers regardless of size need to be aware of these new laws and be prepared for their implementation. For many employers, this will involve significant changes not only to their employee handbooks, but to their job applications as well. Failure to do so could result in significant liability and legal fees.