Mar 30, 2017
California Employment Law Update
Mar 30, 2017
By Beth Arnese
Employment laws in California are constantly changing. Even if you do not practice in the employment law arena, it is a good idea to keep up with the latest changes. A few of the more significant new state and local laws include the following:
California Fair Pay Act Expands to Include Race and Ethnicity
The California legislature has expanded the Fair Pay Act to include protections on grounds of race and ethnicity. The language of the new law prohibits employers from paying “employees at wage rates less than the rates paid to employees of another race or ethnicity for substantially similar work when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.” Note that this language mirrors that of the gender-related protections of the California Fair Pay Act.
In addition, AB 1676 now prohibits employers from relying on an employee’s prior salary to justify salary gaps among similarly-situated employees. The Legislature is concerned that allowing employers to justify a salary gap based on prior salary would adversely affect female candidates who may have had a lower prior salary for various reasons. Employers can inquire about prior salary history, but they may not rely on it entirely to justify a wage difference between employees of different genders or different ethnicities who perform substantially similar work.
As my law firm recommended previously when the law applied only to pay differences between men and women, it is critical for employers to document the legitimate reasons for salary gaps between similarly-situated employees who perform substantially similar work. Before you can do that, of course, you need to understand whether there are any pay gaps in your company. Smaller companies who are making this determination on their own should err on the side of finding a pay gap and documenting the reasons for it. Larger companies or companies with more resources may want to consider hiring a third-party auditor to conduct company-wide reviews of their payroll.
State Disability and Paid Family Leave Increases
California's State Disability Insurance (SDI) and Paid Family Leave (PFL) programs currently provide only 55% of wage levels for six weeks to allow workers to bond with a child or provide care for a sick relative. AB 908 revises the formula for determining benefits available for both SDI and PFL and raises the weekly benefit amount for periods of disability commencing on January 1, 2018, to either 60% or 70% depending on income. Effective January 1, 2018, AB 908 also removes the seven-day waiting period for these benefits.
Although these new provisions do not directly affect employers, they are helpful to understand when dealing with an employee on leave. Companies in San Francisco should also be aware that employers with 50 or more employees are required to provide supplemental compensation to employees who use California paid family leave (PFL) benefits for new child bonding. This new requirement, the Paid Parental Leave Ordinance, went into effect on January 1, 2017.
Ban the Box Expands
California Labor Code section 432.7 currently prohibits most employers from asking a job applicant to disclose information about an arrest or detention that did not result in a conviction. Employers are also banned from using such information as a factor in connection with employment decisions.
AB 1843 expands this prohibition to include any information concerning or relating to an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while the person was under the jurisdiction of a juvenile court.
This latest law reflects the trend of limiting an employer’s ability to find out about a person’s criminal history at the time the person is applying for a job. However, it is worth noting that employers in California may consider a criminal conviction if it is relevant to the job. For example, an employer could ask about drug convictions for job applicants who, if hired, would have access to drugs and medication.
San Francisco employers face even more stringent laws about criminal background checks. The Fair Chance Ordinance prohibits San Francisco employers with at least 20 employees from inquiring about a job applicant’s criminal history on an employment application, including “checking the box” to indicate criminal convictions or other criminal justice system involvement when they apply for a job. Los Angeles also recently adopted a similar law, the Los Angeles Fair Chance Initiative for Hiring.
The laws surrounding an employer’s obligations in this area can be complex, and we are frequently called upon to counsel our clients about what they can and cannot do when it comes to a job applicant’s or an employee’s criminal history.
Single-User Restroom Labeling Required
Beginning on March 1, 2017, business establishments must identify all single-user toilet facilities as "all-gender." The new law authorizes inspectors, building officials, and other officials to inspect for compliance with these provisions.
Notification of Rights for Victims of Domestic Violence, Sexual Assault, or Stalking
Existing California law requires employers with 25 or more employees to provide protected leave for victims of domestic violence, sexual assault, or stalking so that they can take time off from work for specific reasons related to their situation of domestic violence, sexual assault, or stalking (1). Such reasons include seeking medical attention for injuries caused by domestic violence, sexual assault, or stalking; obtaining services from a domestic violence shelter, program, or rape crisis center; obtaining psychological counseling related to an experience of domestic violence, sexual assault, or stalking; or to participate in safety planning and other actions to increase the employee’s safety from future domestic violence, sexual assault, or stalking.
AB 2337 requires such employers to provide notice of these rights in writing to all new employees and to existing employees upon request. This bill requires the Labor Commission, on or before July 1, 2017, to develop a form for employers to use for such notification purposes. Employers are not required to comply with this notification requirement until the Labor Commission posts this form on its website.
(1) “Protected leave” is an employment law term that generally means that an employer (a) cannot terminate and/or retaliate against an employee as a result of the employee requesting or taking the leave; and (b) must maintain the employee’s position or a similar position to which the employee may return at the conclusion of the leave.
Beth Arnese is an employment and privacy law attorney with the Maier Law Group. She has extensive experience providing advice and counsel, privacy compliance, workplace complaint investigation, and litigation services to clients throughout the Bay Area. Beth has over eleven years of experience as a civil defense attorney, litigating employment and commercial law matters in both in the public and private sector. She has handled several cases from their inception through appeal in both state and federal court. Beth also has a strong track record of winning cases through a successful motion practice. Beth was recognized as a “Rising Star” by Northern California Super Lawyers in 2013 & 2015.