October 15, 2017 was the deadline for Governor Brown to decide whether to approve or veto several employment bills that were passed by the California Legislature in 2017. The laws signed by Governor Brown are summarized below and will become effective January 1, 2018.
AB 450 (Immigration Worksite Enforcement Actions):
AB 450 prohibits employers from allowing federal immigration enforcement agents to access non-public areas of the workspace without a judicial warrant or subpoena. It further requires employers to provide notice to employees when their I-9 or other employment records are inspected within 72 hours of the inspection. Penalties for violating these provisions of the new law are: $2,000-$5,000 for the first violation and $5,000-$10,000 for any subsequent violations. This bill also prohibits employers from re-verifying the employment eligibility of a current employee in a manner not specifically required by federal law. Employers violating this provision of the new law are subject to penalties of up to $10,000.
SB 306 (Suspected Retaliation – Labor Commissioner Investigations):
SB 306 allows the Labor Commissioner to investigate suspected instances of retaliation and to seek injunctive relief even where no employee complaint has been filed. That injunctive relief, however, would not prohibit an employer from disciplining or firing an employee for conduct that is unrelated to the retaliation claim.
AB 168 (Salary Inquiries):
AB 168 prohibits employers from inquiring about an applicant’s prior salary history. The employer may consider prior salary information that the applicant voluntarily discloses without prompting by the employer in determining the applicant’s salary, but employers cannot rely on that information in determining whether to offer employment to an applicant or to justify a pay disparity. AB 168 also requires employers to provide the position’s pay scale to a job applicant upon reasonable request.
AB 1008 (Ban the Box):
AB 1008 prohibits employers employing at least 5 employees from including criminal history questions on employment applications and inquiring into an applicant’s criminal history until a conditional offer of employment is made. If, after providing the conditional offer, the employer intends to deny the applicant the position because of the applicant’s conviction history, the employer must assess whether the applicant’s conviction history has a direct and adverse relationship with the duties of the job. The employer must give written notice to the applicant if the employer is denying the applicant the position because of his or her conviction history and must give the applicant an opportunity to respond to the notice. This bill does not apply to certain specified employers, including employers who are required by state, federal, or local law to conduct criminal background checks or to restrict employment based on criminal history.
AB 46 (Gender Pay Equality):
AB 46 provides that California’s Equal Pay Act, which prohibits employers from paying employees of different genders, races, or ethnicities different amounts for substantially similar work, applies to public employers as well as private employers. However, public employers, unlike private employers, are not subject to a misdemeanor for violating the California Equal Pay Act.
AB 1701 (Contractor Liability):
AB 1701 provides that a direct contractor is liable for specified debt owed to a wage claimant or to a third party on the wage claimant’s behalf that is incurred by the direct contractor’s subcontractor. The direct contractor’s liability extends only to unpaid wages or other benefits, including interest.
SB 63 (Expansion of Parental Leave Rights):
SB 63 extends the California Family Rights Act’s protections to smaller employers (employers with at least 20 employees). Employers employing at least 20 employees must allow employees to take 12 weeks of parental leave to bond with a new child within one year of the child’s birth, adoption, or foster care placement. Employers must maintain health care coverage for employees who take this leave.
SB 396 (Expansion of Harassment Training):
SB 396 requires employers to include information on harassment based on gender identity, gender expression, and sexual orientation as a component of the biennial sexual harassment training already required under the Fair Employment and Housing Act for employers with 50 or more employees. This bill also requires employers to post a poster developed by the Department of Fair Employment and Housing regarding transgender rights.
The Governor vetoed a handful of employment bills, including a bill that would have required employers to report information concerning gender pay gap differentials to the Secretary of State and a bill that would have required school districts and community colleges to provide six weeks of paid leave for pregnancy and/or childbirth.
Employers doing business in California should review these new laws and should contact legal counsel before January 1, 2018 to make sure they are in compliance.