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Recap of 2018 California Employment Law Changes

california employment lawCalifornia Employment Law Changes Enacted by the 2017 California Legislature

The California Legislature once again enacted numerous labor and employment laws addressing discrimination, harassment, compensation, hiring, and parental leave. A snapshot of each of these laws and their effective dates are summarized below. Employers with operations in California should understand how these laws change their policies, procedures and employee notification processes.

Hiring Practices and Enforcement

AB 168 bars employers from requesting, orally or in writing, the pay history of job applicants (either directly or through an agent, such as a third-party recruiter). Also, employers may not rely on salary history information as a factor in determining whether to hire the applicant or how much to pay the applicant. Applicants may voluntarily and without prompting disclose their salary history to a prospective employer. Effective January 1, 2018

Ban the Box

AB 1008 prohibits employers with at least five employees from asking, orally or in writing, job applicants about criminal conviction histories until a conditional offer of employment has been made. There are limited exemptions for certain positions, such as those where a criminal background check is required by federal, state or local law. AB 1008 also prohibits California employers from considering, distributing or disseminating information about certain types of arrests or convictions while conducting a background check following a conditional offer of employment. Once an employer has made a conditional offer of employment, it may seek certain criminal history information. However, before denying employment because of a criminal conviction, AB 1008 outlines several  specific steps that must be followed. Employers in Los Angeles and San Francisco are also required to comply with the local “Fair Chance” ordinances, which have additional requirements. Effective January 1, 2018

Workplace Harassment

SB 396, the Transgender Work Opportunity Act, requires California employers with 50 or more employees to expand the two hours of sexual harassment prevention training such employers are already required to provide under the Fair Employment and Housing Act to supervisors every two years (or within six months after an employee becomes a supervisor) to include training on gender identity, gender expression and sexual orientation harassment. Effective January 1, 2018

Retaliation and Discrimination 

SB 306 authorizes the Division of Labor Standards Enforcement (DLSE) to investigate an employer – “with or without receiving a complaint” – when the Labor Commissioner suspects retaliation or discrimination against a worker during a wage claim or other investigation. The Labor Commissioner will also be allowed to seek injunctive relief (that the employee be reinstated pending resolution of the claim) upon a mere finding of “reasonable cause” that a violation of the law has occurred. That injunctive relief, however, would not prohibit an employer from disciplining or firing an employee for conduct that is unrelated to the retaliation claim. Effective January 1, 2018

Expansion of Fair Pay Act

AB 46 extends California’s Fair Pay Act to cover public employers. The Fair Pay Act prohibits wage discrimination on the basis of gender, race and ethnicity and previously only covered private employers. Effective January 1, 2018

Gender Discrimination

AB 1556 revises California’s Fair Employment and Housing Act by deleting gender-specific personal pronouns (such as “female,” “she” and “her”) in California’s anti-discrimination, anti-harassment, pregnancy disability and family/medical leave laws and replacing them with gender-neutral terms such as “the person” or “the employee.” Effective January 1, 2018

Worksite Immigration Protections

AB 450, or Immigrant Worker Protection Act, provides workers with protection from immigration enforcement while on the job and imposes varying fines from $2,000 to $10,000 for violating its provisions. Per AB 450, employers cannot give federal immigration enforcement agents access to non-public areas of a business without a judicial warrant, nor can they provide enforcement agents access to employee records without a subpoena or judicial warrant. Effective January 1, 2018

Parental Leave for Small Employers

SB 63, the New Parental Leave Act (NPLA), requires small businesses with 20 or more employees to provide eligible employees up to 12 weeks of unpaid, job-protected leave to bond with a new child. New Parental Leave must be taken within one year of the child’s birth, adoption or foster care placement. Effective January 1, 2018

Prohibited Discrimination Against Veterans

AB 1710 expands the current protections for members of the armed services by prohibiting discrimination in all “terms, conditions, or privileges” of employment. This legislation conforms state law to the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) by protecting service members in civil jobs from hostile work environments. Effective January 1, 2018

Whistleblower Protections for Health Care Facilities

Section 1278.5 of California’s Health and Safety Code prohibits a health facility from discriminating or retaliating against a patient, employee, member of the medical staff or any other health care worker of the health facility because that person has presented a grievance, complaint or report to the facility, as specified, or has initiated, participated or cooperated in an investigation or administrative proceeding related to the quality of care, services, or conditions at the facility, as specified. AB 1102 amends Section 1278.5 to increase the maximum fine for a person who willfully violates the aforementioned provisions from $20,000 to $75,000. Effective January 1, 2018

workplace discrimination

Google Accused Of Workplace Discrimination Against White Conservative Men

Workplace Discrimination Case

The engineer who was fired by Google after he criticized its diversity policies last August claims in a lawsuit that he and others at the internet giant faced harassment and workplace discrimination due to their conservative political views. This latest lawsuit against Google comes on the heels of a lawsuit brought against the company in December citing violations of the California Equal Pay Act. That suit alleges that Google discriminates against its women employees by systematically paying them lower compensation than their male peers for performing substantially similar work under similar working conditions. 

Damore v. Google, LLC. (Cal. Sup. Ct., Santa Clara Cty.)

On January 8, former Google engineer James Damore, who famously circulated a memo about Google’s so-called “ideological echo chamber,” and a fellow former Google employee filed a discrimination class action complaint against Google on behalf of all employees of Google discriminated against “due to their perceived conservative political views,” “their male gender,” and/or “their Caucasian race.” 

The other ex-Googler named as a plaintiff is David Gudeman, who says he was an engineer for three years until he was wrongfully terminated in December 2016. The two men claim they were “ostracized, belittled and punished for their heterodox political views, and for the added sin of their birth circumstances of being Caucasians and/or males.”

The complaint alleges the following:

  • that employees who deviated from the “majority view” at Google regarding issues such as “‘diversity’ hiring policies, ‘bias sensitivity,’ or ‘social justice,’” were singled out, mistreated, and systematically punished and terminated from Google.
  • that the company’s “open hostility” to conservative thought leads to discrimination in hiring, promotion, and termination decisions on the basis of race and gender because of the “extreme” lengths Google allegedly goes to in taking race and/or gender into consideration as determinative hiring factors, to the detriment of white males.
  • that several of Google’s diversity initiatives, including, among other things, a “Diversity and Inclusion Summit” and a “diversity training class,” as evidence of bias against conservative white men.
  • “Google’s current method of increasing diversity resulted in what is known as reverse discrimination, because Caucasian and Asian males were not being selected for jobs and promotions due solely to their status as non-females or non-favored minorities.”

Damore’s Attorney

workplace discrimination

Damore’s attorney is Harmeet Dhillon, a civil rights lawyer who has taken on cases that push back against the Bay Area’s progressive tendencies. As part of a press conference, Dhillon, a California representative for the Republican National Committee, elaborated more on the very lengthy complaint and argued that her current clients are far from alone. Dhillon suggested that she had spoken with “dozens” of employees at Google to formulate the lawsuit and that she expects there will be “future lawsuits” to explore, as well.

California Employment Law

Protected classes called out in both state and federal statutes, such as sex, religion, race, etc. are broadly defined. As such, every person can face discrimination, and it is just as unlawful if targeted against white men as it would be against any other group. As long as an employee is negatively impacted because of his or her membership in a protected class, that counts as discrimination and could form the basis for a lawsuit. Further, California law also bans private employers from discriminating against workers due to their political views, affiliations, or activities.

If you are living in Los Angeles, San Francisco, Sacramento, or San Diego and feel you have been a victim of workplace discrimination, contact Kingsley & Kingsley to speak with one of our experienced lawyers.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)

sexual harassment arbitration

Ending Arbitration of Sexual Harassment

sexual harassment arbitrationAllegations of sexual harassment and misconduct against movie producers, actors, business leaders, and politicians are on the rise across the country.  So much so, a bipartisan group in Congress is blaming the increased use of nonpublic arbitration for keeping allegations quiet. Senators Kirsten Gillibrand, D-NY and Lindsey Graham, R-SC are leading a group of legislators seeking passage of a bill intended to prohibit sexual harassment and gender discrimination cases from being resolved privately in arbitration. The bill, Ending Forced Arbitration of Sexual Harassment, would prohibit businesses from enforcing predispute arbitration agreements of sexual harassment and discrimination claims covered under Title VII of the Civil Rights Act of 1964.


Sexual Harassment

Sexual harassment can occur when a supervisor demands sexual favors from a subordinate in return for positive job treatment (or threats of negative consequences if the employee refuses to comply). Sexual harassment need not only be based on this type of quid pro quo activity however.

Any unwelcome conduct of a sexual nature which is so severe and pervasive that it creates a hostile work environment is also considered illegal harassment. In addition, it is not just a supervisor who can create a hostile environment – co-workers and even customers can create this atmosphere through inappropriate touching, obscene talk or gestures, graffiti, etc. This type of harassment can be perpetrated by females upon males as well as vice versa, and even among members of the same sex.

A “predispute arbitration agreement” is defined by the proposed bill as “any agreement to arbitrate a dispute that had not yet arisen at the time of the making of the agreement.” SB 2203 (Gillibrand) targets arbitration agreements that an employee might be asked to sign as a condition of getting hired or remaining employed.  The bill does not seek to eliminate predispute arbitration agreements in connection with other types of discrimination claims.

California Employers
SB 2203 does not address class action waivers, i.e. requiring that claims be asserted individually and not on a class basis. While class action waivers can exist outside the context of arbitration, they are not addressed in the bill. The bill also does not address the use of confidentiality agreements following the settlement of sexual harassment claims.

SB 2203 has just begun its journey in the U.S. Congress and it remains to be seen how it will be received. In the meantime, make sure you have anti-harassment policies in place and that you communicate them to employees in as many ways as possible to include handbooks, policy manuals, intranet sites, etc. And while recent media coverage has focused on sexual harassment, your policies should be broad enough to address harassment of any kind, including conduct based on individuals’ race, color, nationality, religion, disability and the like. Lastly, some employees may be unsure about what constitutes “harassment.” Your policies should describe what types of behavior or actions can constitute harassment, and that in no uncertain terms won’t be tolerated in any way.

California Employees

It is important for employees to know that they must make it clear that any conduct of a sexual nature is unwelcome. In other words, offended employees should tell the offender to stop. If the behavior continues, it should be reported to a supervisor or the human resources department in writing. Employees may be tempted to ignore the harassment, hoping it will not continue, but this frequently only makes the situation worse. And, staying quiet about it can potentially impact the employee’s legal rights here in California as well as in other states.

The labor and employment lawyers at Kingsley & Kingsley are well-versed in representing employees throughout California who have been the victim of sexual harassment. Our lawyers represent employees in civil litigation in state and federal courts, and in mediations and administrative hearings before boards and commissions such as the California Department of Fair Employment and Housing (DFEH) and the Equal Employment Opportunity Commission (EEOC).

Proving sexual harassment can be challenging, but with the right legal team, it can be done. If you have been a victim of sexual harassment, there are a variety of ways that the qualified lawyers at Kingsley & Kingsley can assist you. Take advantage of a free initial consultation to discuss your specific case by calling the toll free number (888) 500-8469 or by clicking here to contact us regarding your case.


New Regulations Protect Transgender Employees in California

FEHC Amends Regulations on Sex Discrimination

The California Fair Employment and Housing Council (“FEHC”) recently adopted amendments to the existing regulation on sex discrimination, which include transgender identity and expression. Some changes are language or definition related:

  • “Gender at birth” has even changed to “gender assigned at birth.”
  • “Opposite sex” has been replaced with “different sex.”
  • The definition of “gender identity” has been expanded.
  • A definition for “transitioning” has been added. 

Additional revisions or additions to FEHC regulations cover employment topics of job applications, employee restrooms, fringe benefits, reference to employees using their preferred gender and name.

transgender employees


Employment Applications 

An employer may not require that applicants identify themselves on the basis of sex. However, this information may be requested on a voluntary basis. An employee’s misidentification of gender on an application is not a fraudulent misrepresentation, unless sex is a Bona Fide Occupational Qualification (BFOQ). Also, an employer may not discriminate based on an applicant’s failure to select a gender on an application form.


Employees must be permitted to use facilities that correspond to their gender identity or gender expression. An employer may not require medical proof prior to allowing use of the facility of the employee’s choice, but may make a confidential and reasonable inquiry of an employee to ensure appropriate access. All single occupancy facilities under the employer’s control must use gender neutral signage, such as Restroom, Unisex, Gender Neutral, or All Gender Restroom. Per the FEHC, facilities subject to the above rules include locker rooms, dressing rooms, dormitories, and other similar facilities. 

Fringe Benefits

It is unlawful for an employer to condition the availability of fringe benefits upon an employee’s sex, including gender identity and gender expression. Except whereas otherwise required by state law, an employer or other covered entity shall not require unequal employee contributions by similarly situated male and female employees to fringe benefit plans based on the sex of the employee, nor shall different amounts of basic benefits be established under fringe benefit plans for similarly situated male and female employees. It shall be unlawful for an employer or other covered entity to have a pension or retirement plan that establishes different optional or compulsory retirement ages based on the sex of the employee.

Preferred Name and Pronoun

An employer must use the employee’s preferred gender, name, and/or pronoun, including gender neutral pronouns if the employee so requests. Employers may be liable under the Fair Employment and Housing Act for failure to do so. However, employers may use the gender and legal name indicated on government issued identification when necessary to meet a legally mandated obligation. Fringe Benefits. Employers may not condition the availability of fringe benefits on sex, including gender identity or gender expression. Practical Implications Employers should take steps now to ensure that their applications, policies, procedures and facilities are legally current. Employers are encouraged to consult with counsel to ensure compliance with all applicable laws.

Questions about the California Fair Employment and Housing Regulations?

An experienced California employment lawyer can quickly answer your questions about the Fair Employment and Housing Council. To discuss new regulations, or any of California’s discrimination laws, feel free to contact leading California employment lawyers at Kingsley & Kingsley. Call toll-free at (888) 500-8469 or click here to contact us via email.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)

fair employment posters

Updated Employment Posters from California Department of Fair Employment and Housing

fair employment postersThe California Department of Fair Employment and Housing (DFEH) has been busy in 2017, releasing updated posters covering Employment Discrimination, Family Care and Medical Leave (CFRA Leave), Pregnancy Disability Leave, Sexual Harassment, Pregnancy Discrimination, and Workplace Harassment. DFEH has organized the posters on their website, categorized by the poster/brochure audience or intent (i.e. those that are required versus those designed for employment, housing, business establishments, or hate/violence).

Required Posters  

DFEH has placed all required posters and brochures on a single webpage in multiple languages. Even with the numerous updates, DFEH points out the absence of changes in some posting obligations. Employers may post any version of the Workplace Discrimination poster (titled: California Law Prohibits Workplace Discrimination and Harassment / DFEH-E07P-ENG / formerly DFEH-162) from December 2014 to the present. Also, employers may post any version of the CFRA/Pregnancy Disability Leave notice (DFEH-100-21) from July 2015 to the present. Lastly, employers may post any version of the Rights and Obligations as a Pregnant Employee notice (DFEH-100-20) from April 2016 to the present.

All California employers are required to display the following poster:

Most California employers also must display two other posters:

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employee notice domestic violence

California Employers Must Notify Employees of Rights Regarding Domestic Violence, Stalking and Sexual Assault

employee notice domestic violenceEmployee Rights to Deal With Domestic Violence, Sexual Assault and Stalking

Per the Labor Commissioner’s Office, California employers with 25 or more employees are required to provide to new employees upon hire, and to current employees upon request, notice regarding the rights of victims of domestic violence, sexual assault and stalking. The new law was effective July 1, 2017 and is intended to provide covered California employees with information about their rights to:

  • Take off time to procure medical attention or services from a domestic violence shelter, program or rape crisis center.
  • Take off time to obtain psychological counseling for issues related to domestic violence, sexual assault or stalking.
  • Use vacation or personal leave to receive safety planning assistance.
  • Take time off to secure a restraining order or other court order to protect the employee and the employee’s children from domestic violence, sexual assault and stalking.
  • Request and receive a reasonable accommodation to assist them in keeping safe from domestic violence, sexual assault and stalking at work (such as installing locks or changing a shift).
  • Take time off for the above reasons, even if you don’t have paid leave.
  • Be free from retaliation for being a victim of these issues or asserting the right to time off or reasonable accommodation for these reasons.

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