Pay equity, parental leave, and criminal history are hot topics that have been grabbing attention for some time, and employers in California now need to prepare for three newly signed laws addressing those issues.
The new laws include restrictions on employers asking applicants questions related to salary history and criminal history and impose new parental leave requirements on small employers.
Governor Edmund G. Brown, Jr., recently signed Assembly Bill (AB) 168, which prohibits all employers in both the public and private sectors from seeking salary history information about applicants. The law also will require employers to provide the pay scale for a position to applicants upon reasonable request. The law takes effect January 1, 2018.
Teresa W. Ghali, a contributor to California Employment Law Letter and attorney with Carothers DiSante & Freudenberger LLP in San Francisco, explains that the new law means employers can’t inquire about or consider information regarding an applicant’s salary history in determining whether to offer employment or the amount to pay the applicant.
“Notably, applicants can still volunteer prior salary history if they want to, but employers cannot prompt them to offer this information,” Ghali says, adding that the law allows employers to consider volunteered information in determining employees’ compensation.
“This new law is intended to combat the continuation of historical pay gaps existing along gender and/or racial lines,” Ghali says. “Other states, including Massachusetts and Oregon, have enacted similar laws recently . . . as part of widespread efforts across the country to promote pay equity.”
Even though the new law allows employers to consider salary information an applicant volunteers, employers have to be careful, says Cathleen S. Yonahara, an editor of California Employment Law Letter and attorney with Freeland Cooper & Foreman LLP in San Francisco. “Be mindful that, in accordance with California’s Equal Pay Act, an employer may not rely on prior salary alone to justify any disparity in compensation” between employees of different sexes, races, or ethnicities who perform substantially similar work, she says.
The new parental leave law, Senate Bill (SB) 63, requires employers with as few as 20 employees to provide eligible employees with 12 weeks of job-protected leave to bond with a new child, Yonahara says. The new law will take effect January 1, 2018.
Under the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act, private employers with 50 or more employees currently are required to provide eligible employees with 12 weeks of unpaid, job-protected leave to bond with a new child. Public employers, regardless of size, also are covered under those laws. SB 63 will extend the leave requirement to smaller employers.
To be eligible for family leave under SB 63, an employee must (1) have more than 12 months of service with the employer, (2) have at least 1,250 hours of service with the employer during the previous 12-month period, and (3) work at a site at which the employer employs at least 20 employees within 75 miles.
The new law requires covered employers to permit eligible employees to take leave within one year of the child’s birth, adoption, or foster care placement. If both parents are eligible for parental leave, they will be limited to a combined 12 weeks of leave, and the employer can—but isn’t required to—grant simultaneous leave to both employees.
Ban the box
AB 1008, which will take effect January 1, 2018, prohibits most public and private employers with at least five employees from asking applicants questions about criminal convictions until a conditional offer of employment has been made. If an employer wants to deny someone a job based on criminal history, it must make an individualized assessment and offer the applicant a chance to respond.
“No matter how severe the offense, there is no conviction which will automatically disqualify a candidate,” Yonahara says. “An employer will have to conduct an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job.”
The assessment will require the employer to show that it considered the nature and gravity of the offense, the nature of the job sought, and the amount of time that has passed since the offense, Yonahara says.
“The employer should document that individualized assessment process,” Yonahara says. “This is certainly a new type of requirement that will be imposed on employers.”