Below is a guide to help you update your Employee Handbooks for 2018. Please note that depending on your industry, applicable wage orders, employee size, and other specific company demographics, this list is not to be taken as inclusive for all Employee Handbook compliance in 2018. Consult your legal advisor as needed to ensure legal compliance.
Salary History
A.B. 168 prohibits all employers, public and private, from using “salary history Information” as a factor in determining whether to offer employment and what salary to offer to an applicant. An employer cannot seek salary history information about an applicant. Be sure such information is not required on employment applications for 2018.
Employers should revise applicable hiring policies and procedures and interview and screening guidelines, to make clear that the organization does not request salary history and will not use salary history unless otherwise permitted by law. Salary history information includes information about compensation and benefits.
A.B. 168 does not apply to salary history information that is disclosable to the public, such as under the California Public Records Act. The law also requires employers to provide the pay scale for a position upon an applicant’s request.
Employee Behavior in the Workplace
Due to some recent NLRB rulings, be sure your handbooks for 2018:
- Don’t discourage employees from reporting potential legal violations to government agencies.
- Do not contain language that simply tells employees “they need to act professionally and in a positive manner”. (T-Mobile decision ruled unlawful)
Immigration Enforcement
California has enacted strict new measures related to workplace immigration enforcement for 2018 and beyond.
A.B. 450 prohibits employers, and anyone acting on their behalf, from voluntarily consenting to allow an immigration enforcement agent to enter nonpublic areas of a workplace, except if the agent provides a judicial warrant or as otherwise required by federal law. It also prohibits employers and anyone acting on their behalf from providing voluntary consent to an immigration enforcement agent to access, review, or obtain employee records without a subpoena or judicial warrant.
This provision does not prohibit an employer from challenging a subpoena or judicial warrant in a federal court, nor does it apply to inspection of I-9 records or other documents for which the employer has received a Notice of Inspection.
A.B. 450 also imposes several new notification requirements on employers regarding Notice of Inspections, and inspection results to affected employees.
Employers should be familiar with this new legislation as violations of any of the provisions carry civil penalties of $2,000 to $5,000 for a first violation and $5,000 to $10,000 for each subsequent violation.
Ban the Box
A.B. 1008, amends the Fair Employment and Housing Act (“FEHA”) to make it an unlawful employment practice for employers with five or more employees to:
- include on any application for employment any question that seeks the disclosure of an applicant’s conviction history;
- inquire into or consider an applicant’s conviction history before the applicant receives a conditional offer of employment; and
- consider, distribute, or disseminate information related to arrests that did not result in convictions, diversion program participation, and/or convictions that were sealed, dismissed, expunged or eradicated.
The new law exempts from its coverage for positions for which the employer is required by federal, state or local law to check criminal history or to restrict employment based on criminal history.
In addition, the law provides that covered employers may only consider an applicant’s conviction history after the applicant has received a conditional offer of employment.
Covered employers should revise their employment applications to remove “boxes” or questions which seek criminal conviction information from applicants. Employers should adopt procedures to comply with the individualized assessment and “fair chance” process requirements. Finally, employers should review and revise, as necessary, “adverse action” notifications to comply with federal and California fair credit reporting law requirements, as well as local ban-the-box or fair chance ordinance requirements such as in San Francisco and Los Angeles.
New Parental Leave Act
S.B. 63, the Parent Leave Act, amends the California Family Rights Act (“CFRA”) to allow employees who work for an employer with at least 20 employees to take 12 weeks of unpaid leave for new child bonding purposes so long as the employee works at a worksite that employs at least 20 employees within a 75-mile radius.
Covered employers must allow an eligible employee to take up to 12 weeks of job-protected parental leave to bond with a new child within one year of the child’s birth, adoption or foster care placement. An eligible employee is one who has a minimum of 12 months of service plus at least 1,250 hours of service with the employer during the 12-month period preceding the leave.
Before the start of a parental leave, the employer must provide the employee with a guarantee of reinstatement to the same or comparable position following the leave; failure to provide this guarantee will violate the law.
This leave is unpaid, although employees may use accrued vacation, paid sick time, other accrued paid time off, or other paid or unpaid time off negotiated with the employer, and can apply for California Paid Family Leave benefits. Employers must maintain and pay for group health coverage during a parental leave at the level and under the conditions that coverage would have been provided had the employee continued working. The employer can recover coverage costs if the employee fails to return from leave after the leave entitlement period has expired and the failure to return is for a reason other than the continuation, recurrence, or onset of a serious health condition or other circumstances beyond the employee’s control.
The new law does not affect an employee’s right under California law to take up to four months of leave for pregnancy-related disability, in addition to the 12 weeks of parental leave. Also, the new law does not apply to employees who are already subject to the FMLA and CFRA.
Employers with 20 or more employees within a 75-mile radius of the worksite, need to update handbooks and personnel policies, and create leave request forms and notices with respect to the new leave rights, reinstatement guarantee, and other requirements.
Retaliation
S.B. 306 allows the Labor Commissioner to initiate an investigation of employers, with or without a complaint being filed, when it suspects the employer discharged or otherwise discriminated against an individual in violation of any law under the Labor Commissioner’s jurisdiction. It is not necessary for the employee to file a complaint for them to investigate.
Employers need to carefully analyze and make well-reasoned disciplinary decisions and that they document thoroughly the reason(s) for those decisions. Employers should be aware that litigating retaliation and whistleblower claims, and opposing petitions for injunctive relief related to these claims, will be more difficult now. Employers will also face a heavy burden when challenging citations under the new law.
Anti-Harassment Training
S.B. 396 requires that the mandated anti-harassment training now include content regarding harassment based on gender identity, gender expression, and sexual orientation. This training must include “practical examples inclusive of harassment” and must be “presented by trainers or educators with knowledge and expertise” in these areas.
The new law also requires employers with five or more employees to post a new workplace notice, to be developed by the Department of Fair Employment and Housing, regarding transgender rights.
In addition, S.B. 295, requires employers that use farm labor contractors comply with existing requirements to conduct sexual harassment training for certain employees in the language understood by the employee.
Rest Breaks
The courts clarified that even though rest breaks are compensable (paid) time employers must relieve their employees of all duties and relinquish any control over how employees spend their break time. Therefore, be sure your handbooks do not state that employees must remain on site during their 10-15 rest breaks. In addition, if the rest period is interrupted for any reason, an employer can either provide another rest period to replace the interrupted one, or pay the premium pay for the missed rest break.
Reasonable Accommodations
California has expanded reasonable accommodations for individuals who identify as transgender. Employers should make sure to update its handbook to include policies on reasonable accommodations in the workplace and show compliance with these laws.
Smoke Free Workplace
Handbooks for 2018 should be revised to include “vaping devices” and e-cigarettes as banned in the workplace under the same restrictions as regular cigarettes.
Fair Pay
In addition to last year’s law to address gender wage inequality, California’s Fair Pay Act now prohibits an employer from paying employee wage rates that are less than those paid to employees of another race or ethnicity for substantially similar work.
Additional Leave Laws in 2018
It is important for employee handbook policies to reflect the latest leave laws, especially those on the state and municipal level, such as paid sick leave, safe leave, organ donor leave, or leave to serve in the military or National Guard.
Eileen has practiced HR for over 30 years and has served in both large companies and boutique companies, including Disney, Hasbro, and Umpqua Bank. She currently serves on the board of directors for the EDD/EAC as well as the NCHRA. A Bay Area native, Eileen enjoys visiting Lake Tahoe, reading, and spending time with her family.