Keeping up to date on new HR laws for 2018

In this new year, there are significant requirements that employers must respond to. Be sure to institute the minimum wage increases for 2018 effecting State and Federal taxes. Minimum wage increases are determined on the number of employees. Here are two great links to help you keep track of state and city minimum wage increases,

As usual, our California clients will not be surprised that the state continues to lead the way in new employment law initiatives and compliance requirements. Unless specified otherwise, changes are effective on January 1, 2018.

The following is a summary of the most significant new laws that will affect California employers in the upcoming year.

1. New Parent Leave Act for small employers

Employers with 50 or more employees are already familiar with the obligation to provide baby bonding leave under the California Family Rights Act ("the CFRA"). Senate Bill 63 amends Section 12945.6 of the Government Code to expand the "baby bonding" protections of the CFRA to smaller employers.

Employees who have at least 1,250 hours of service with the employer during the previous 12‐month period and who work at a worksite in which the employer employs 20 to 49 employees within 75 miles will be permitted to take up to 12 weeks of unpaid parental leave to bond with a new child.

2. Restriction on obtaining salary history

Under AB 168, employers and their agents are not permitted to directly or indirectly seek or inquire into a job applicant’s salary history, compensation or benefits. Employers cannot use such information in determining whether to extend a job offer or in deciding what salary to offer the applicant. In addition, employers must disclose pay scales for a position upon request from an applicant.

3. "Ban the Box" expanded statewide – restrictions on considering criminal history when making employment decisions

Under AB 1008, the new statewide law, employers may not ask applicants for employment, either in writing or orally, about their conviction history until a conditional offer of employment is made. After an offer of employment is made conditioned on a background check, the employer may inquire into conviction history and conduct a background check. If that background check reveals a criminal conviction, and if the employer intends to deny the applicant the position at least in part because of any conviction, the employer must engage in an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that would justify denying the applicant the position.

4. Gender Recognition Act

California recently enacted new legislation (SB1709) that simplifies the process for a person to change their legal gender to female, male, or nonbinary depending on their gender identity. This makes California the first state to recognize nonbinary as a gender.

5. Harassment prevention training regarding gender identity, gender expression, and sexual orientation

California also expanded its sexual harassment prevention training requirements to address issues of gender identity. Under SB 396, the prevention training requirement has been expanded to include training regarding gender identity, gender expression, and sexual orientation. In addition, the Department of Fair Employment and Housing will develop a poster regarding transgender rights, which must be posted in a prominent and accessible location in the workplace.

6. The Labor Commissioner may investigate an Employer suspected of retaliation or discrimination without a complaint

Under current California law, the Labor Commissioner is empowered to investigate and report complaints of retaliation or discrimination that arise from the Commissioner's other investigations into a specific employer. The former law, which is revised by SB 306, granted the Labor Commissioner this power to investigate retaliation or discrimination only if an employee or other person made a complaint. Going forward, the Labor Commissioner will not need a complaint to investigate retaliation or discrimination relating to an existing investigation.

7. Human Trafficking poster

Senate Bill No. 225 amends California Code Section 52.6. This bill expands the list of businesses and establishments that are required to post a notice that contains information related to slavery and human trafficking.

8. Immigrant Worker Protection Act

AB 450, the Immigrant Worker Protection Act, is meant to protect workers from immigration enforcement through workplace raids. Pursuant to this law, an employer or someone acting on behalf of the employer, must require a judicial warrant before consenting to an immigration enforcement agent entering nonpublic areas of a place of labor (with certain exceptions) and require a subpoena or court order before an immigration enforcement agent can access, review or obtain employee records (with certain exceptions). These are just a few of the requirements.

Proposed 2018 HR Resolutions

As a result of these new laws, and just as good HR practice, we recommend the following steps:
  • Make sure your personnel policies and handbooks are up to date (including the lists of categories protected from discrimination and the leave sections).
  • Ensure your payroll procedures and documentation are up to date. A wage and hour audit could be helpful if you are not sure that your managers are dealing with overtime and leave issues correctly.
  • Make sure your HR staff has up to date training on implementing the myriad leave requirements in CA.
  • Sexual harassment sections in employee policies and handbooks should prohibit not just harassment, but also vulgar language, sexual innuendo, sexual propositions, threats, and bullying.
  • Make sure you are prepared to be proactive when faced with harassment complaints. Respond to complaints of bullying, crude behavior, and mistreatment that aren't necessarily "because of sex" as you would to a sexual harassment complaint. This means you need to conduct (or have someone qualified conduct) a prompt, fair, and thorough investigation and, where necessary, take steps reasonably calculated to stop the behavior.