California has enacted two new pieces of legislation which took effect on January 1 2018 and are intended to improve job opportunities, for women in particular. This continues a nationwide trend towards the adoption of laws aimed at combating workplace gender inequities. The first bill, SB-63, expands the California Family Rights Act to provide up to 12 weeks' unpaid parental leave for employees of companies with as few as 20 employees. The second bill, AB-168, prohibits employers from seeking or relying on a job applicant's salary history information when deciding whether to offer employment and what salary to offer. It also requires employers to provide the pay scale for a position to an applicant, on request.
The California Family Rights Act, California's existing family leave law, generally tracks the federal Family and Medical Leave Act by requiring employers of 50 or more employees within a 75-mile radius to grant up to 12 weeks' family care and medical leave in any 12-month period. SB-63 broadens protections under the California Family Rights Act to employers with at least 20 employees within a 75-mile radius. Thus, employers with 20 or more employees must grant an employee up to 12 weeks' unpaid parental leave in order to bond with a new child within one year of the child's birth and must continue to provide group health coverage during that leave. Such parental leave is protected and employers are prohibited from firing, refusing to hire or otherwise discriminating against employees who take advantage of their leave. The new law took effect on January 1 2018 and is expected to have expanded parental leave rights to 2.7 million workers who were previously ineligible for protected leave because they work for small employers.
SB-63 follows a 2016 California law increasing the compensation employees may receive from the state for paid family leave. It also joins several similar laws passed in other US jurisdictions aimed at expanding parental leave rights:
- In July 2017 the state of Washington passed a law providing eligible employees up to 12 weeks' paid leave after the birth or adoption of a child. When the law becomes effective in 2020, employees will be paid up to 90% of their ordinary wages.
- In December 2016 Washington DC enacted similar legislation, granting eight weeks' paid leave to new parents, beginning in 2020.
- In April 2016 New York passed legislation granting up to eight weeks' paid leave at up to 50% of the employee's salary beginning in 2018, which will gradually increase to 12 weeks' paid leave at up to two-thirds of their salary by 2021.
Meanwhile, other states have looked to introduce paid parental leave bills. Further, legislatures in Massachusetts and other states with existing unpaid parental leave laws – including Connecticut, Oregon and Vermont – have considered enacting paid parental leave.
California has also enacted a law aimed at strengthening equal pay protections. AB-168 amends the California Labour Code to prohibit employers from "rely[ing] on the salary history information of an applicant for employment as a factor in determining whether to offer employment to an applicant or what salary to offer an applicant" or "seek[ing] salary history information, including compensation and benefits, about an applicant for employment". These restrictions do not apply to job applicants who "voluntarily and without prompting" disclose their salary history to a prospective employer or to salary history information that is publicly disclosed under a federal or state law, such as the California Public Records Act or the federal Freedom of Information Act. AB-168 further mandates that "[a]n employer, upon reasonable request, shall provide the pay scale for a position to an applicant applying for employment". AB-168 took effect on January 1 2018.
California's new legislation follows laws already in place in Oregon and Puerto Rico, as well as those already passed in Delaware, Massachusetts, New York City, San Francisco and Philadelphia which are due to take effect within the next year. There is reason to believe that more states will adopt similar laws in the near future; in 2017 alone, lawmakers in more than two dozen states proposed legislation that would prohibit employers from asking candidates about their salary histories.
Expanded parental leave
This will require many smaller employers to navigate the complexities associated with administering protected leave policies. As a result, companies which suspect that they may be covered by the new law should determine whether they are and, if so, adopt procedures and policies to address the new employee entitlements. Supervisors and human resources personnel should also receive further training about employees' rights to parental leave and the prohibition on discriminating against such employees.
Prohibition on considering salary history
Employers should conduct a thorough review of their recruitment procedures, train employees responsible for recruitment and determine whether standard interview questionnaires and job interview scripts should be revised. Employers may also consider creating alternative questions for job candidates that would provide them with the information they may want to know before setting a salary (eg, asking a candidate what salary he or she expects to earn).
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