California

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

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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san francisco lactation ordinance

San Francisco Mayor Signs Workplace Lactation Ordinance

Nursing Mothers Get Increased Protections Starting January 1, 2018  workplace lactation

On June 30, 2017, San Francisco Mayor Ed Lee signed the “Lactation in the Workplace Ordinance”, increasing protections for nursing mothers working in San Francisco. Particulars of the ordinance follow:

When:  The ordinance will take effect on January 1, 2018.

Who:  The ordinance applies to anyone employed within the geographical boundaries of the City of San Francisco, and includes part-time employees. Conversely, the ordinance applies to employers with employees who are working in San Francisco.

What:  The ordinance requires businesses to provide employees with breaks and a designated location for lactation. Employers must also notify employees of their right to an accommodation for lactation. The ordinance also requires newly constructed or renovated buildings designated for certain uses to include lactation rooms, and amends the San Francisco building code to specify technical specifications of lactation rooms.

Lactation Breaks – The ordinance does not define a specific period of time for a “lactation break,” but expressly provides that the break should run concurrently with any break time that the employer already provides to the employee, if possible. Continue reading

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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employment law unpaid wages

Employment Laws Hidden in California’s Budget Bill

California’s latest budget bill (trailer bill SB 96) contains various changes to the state’s employment laws. employment law unpaid wages

Senate Bill 96 passed the Senate on June 15, 2017 and was officially enrolled on June 20, 2017. The bill is currently on Governor Brown’s desk with more than 30 tenets covering changes in the Departments of Veteran’s Affairs, Elections and Finance. It also contains numerous changes to Labor Standards Enforcement, Public Works Enforcement and OSHA Violations. Below we highlight changes to key employment laws contained in SB 96 as described in various legislative analyses.

Labor Standards Enforcement

Senate Bill 96 specifies that the statute of limitations on workers recovering unpaid wages and other penalties looks back from the date that an employer is notified of a Bureau of Field Enforcement investigation, to preserve the ability to recover unpaid wages and penalties that would have moved beyond the statute of limitations by the time a citation is issued. SB 96 also stipulates the following:

  • Allows certain workers in the car wash, farm labor, and garment manufacturing industries to recover unpaid wages and other damages from existing state special funds, and allow the Division of Labor Standards Enforcement (DLSE) to subsequently recover the unpaid wages and damages from employers to reimburse those special funds. 
  • Extends the time the Retaliation Complaints Investigation unit at the Department of Industrial Relations has to investigate a retaliation complaint from 60 days to one year.
  • Extends the time for employers to comply with DLSE’s determination on a retaliation complaint investigation from 10 days to 30 days.
  • Requires an employer to pay for DLSE’s legal costs when DLSE prevails in an action to enforce its determination on a retaliation complaint investigation.
  • Clarifies that workers may not be retaliated against for reporting a work-rated fatality, injury, or illness, or other activities protected by the federal Occupational Safety and Health Act.

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OSHA Delays July 1 Start to Electronic Workplace Injury Recordkeeping Rule

On May 17, the Labor Department announced that employers do not have to file workplace injury and illness information online with OSHA by the July 1 filing deadline.  OSHA workplace injury reporting

The U.S. Department of Labor Occupational Safety and Health Administration (OSHA) last week suspended a recent rule change requiring companies to electronically report their workplace injury and illness records. As we reported (here), on May 11, 2016, OSHA issued a final rule requiring certain employers to submit workplace injury and illness information electronically. The rule, which took effect at the beginning of 2017, had obligated covered employers to send in their summary data electronically no later than July 1. The information being collected was not due to change, just the method of reporting since employers already submit workplace safety information to OSHA. The new rule will make workplace safety data publicly available on OSHA’s website so that interested parties can search and download the data.

Proposed Reporting Requirements

Employers should be reminded that the electronic recordkeeping rule would not have created new obligations in terms of reporting. Those employers covered by the new rule would have been asked to simply use data from their OSHA Forms 300, 300A, and 301 when using the electronic reporting method. The biggest impact, however, would be OSHA having the ability to electronically post workplace injury and illness data on its website from all workplaces with 20 or more employees.  Submission was to be phased in based on employer establishment size and industry.

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