Why it matters

With several new employment-related measures recently signed into law, California employers should start preparing themselves now. Beginning on Jan. 1, 2018, employers with five or more employees in the state are prohibited from inquiring into applicants’ conviction histories prior to making an offer of employment. A.B. 1008 also sets forth a number of requirements about how employers may use conviction history to deny employment. Another law, the New Parent Leave Act, extends unpaid leave to bond with a new child within one year of the child’s birth, adoption or foster care placement to employers with at least 20 workers. Prior to S.B. 63, the leave was triggered only when employers had 50 or more employees. California also joined Oregon, Massachusetts, New York and a number of cities that ban employers from asking applicants for “salary history information,” a term that includes both compensation and benefits. Finally, S.B. 396 expanded the scope of the sexual harassment training that employers with at least 50 employees must provide to supervisors, with an additional mandate that as of Jan. 1, 2018, the training must cover harassment based on gender identity, gender expression and sexual orientation. Employers should take the time to familiarize themselves with all the new laws and coming changes.

Detailed discussion

Employers in California are facing a busy future with several new employment laws set to take effect in the coming months. The following provides an overview of some of the biggest changes.

  • After limiting employers’ ability to ask job applicants about any juvenile court matters last year, the California legislature enacted a broader “Ban the Box” law in 2017 that will take effect on Jan. 1, 2018. A.B. 1008 amended the Fair Employment Housing Act with a new provision that restricts an employer’s ability to make hiring decisions based on an applicant’s conviction records, forbidding consideration of conviction history until a conditional offer of employment has been extended. Applicable to employers with five or more workers, the law contains minimal exemptions (such as positions with criminal justice agencies) and prohibits inquiring about, considering or including on an application questions about conviction history. If an employer decides not to hire an applicant because of a prior conviction, the employer is required to conduct an individualized assessment to determine whether the history has a “direct and adverse relationship with the specific duties of the job that justif[ies] denying the applicant the position,” taking into account the nature and gravity of the criminal offense, the time that has passed, and the nature of the job. Once a preliminary determination has been made that the conviction history disqualifies the applicant from employment, written notice must be provided, giving the applicant five business days to respond and dispute the decision. A second notice must be provided with the final decision not to hire. Applicants can sue for alleged violations of the provision, requesting compensatory damages, attorneys’ fees and costs.
  • The California Family Rights Act required employers with 50 or more workers to provide unpaid leave of up to 12 weeks to bond with a new child within one year of the child’s birth, adoption or foster care placement. Now the New Parent Leave Act has broadened this requirement to employers with 20–49 employees in a 75-mile radius. Pursuant to S.B. 63, workers will be eligible to take leave once they have worked for the employer for at least 12 months and at least 1,250 hours. While an employee is on leave, the employer must continue to pay its share of the employee’s healthcare premiums, although it may recover this money under certain circumstances (if the employee fails to return to work after his or her leave expires, for example). If both parents work for the same company, leave can be limited to a combined total of 12 weeks and the employer can require the leave be taken concurrently. The new law takes effect in January 2018.
  • Joining a growing number of jurisdictions—including Delaware, MassachusettsNew York, Oregon and several cities—California employers are now prohibited from asking job applicants for “salary history information,” defined to include both compensation and benefits. A.B. 168 does permit employers to rely upon information that is shared by the applicant “voluntarily and without prompting,” although the state’s Fair Pay Act bans employers from relying solely on prior salary to justify any disparity in compensation. The new law, which takes effect on Jan. 1, 2018, applies to both public and private employers and also requires employers to provide applicants with the pay scale for a position upon “reasonable request.”
  • Mandatory sexual harassment training for supervisors got a tweak pursuant to S.B. 396. Beginning on Jan. 1, 2018, employers with 50 or more employees must now address harassment based on gender identity, gender expression and sexual orientation as part of the already required two hours of supervisory training that must be conducted every two years or within six months of an individual’s assumption of supervisory duties. The measure also contains an updated poster requirement.

To read A.B. 1008, click here.

To read S.B. 63, click here.

To read A.B. 168, click here.

To read S.B. 396, click here.