New California Employment Laws for 2018 - What Food Processors Need to Know

New California Employment Laws for 2018
Effective January 1, 2018, California food producers need to be compliant with a number of new workplace restrictions that were passed by the state legislature and signed into law by Governor Jerry Brown. The more significant employment-related bills include:

California "Bans the Box"
"Ban the box" laws seek to restrict when an employer may consider criminal conviction history information concerning applicants for employment. Assembly Bill 1008 (McCarty) applies to public and private employers with five or more employees. The new law prohibits an employer from including on any application, before the employer makes a conditional offer of employment, any question that seeks the disclosure of the applicant’s conviction history. For many California food producers, this will necessitate revising initial employment applications to remove "boxes" or questions that ask applicants to disclose criminal convictions. The new law also prohibits an employer from "inquiring into or considering" the conviction history of the applicant until after a conditional offer of employment has been made.

Under AB 1008, if an employer decides to deny employment to the applicant solely or in part because of the applicant’s conviction history, the employer must embark on a very detailed and specified process to make an "individualized assessment" about the applicant, including notifying them in writing of the decision to deny employment and providing them with an opportunity to respond. The law details specific provisions that must be followed in this process, so you should consult closely with employment law counsel in ensuring compliance with these new requirements.

California Bans "Salary History" Inquiries
Governor Brown also signed Assembly Bill 168 (Eggman), a bill that prohibits public and private employers from seeking or relying upon the salary history of applicants for employment.

AB 168 makes it unlawful for an employer to seek salary history information, orally or in writing, personally or through an agent, about an applicant for employment. In addition, the new law prohibits an employer from relying on the salary history information of an applicant as a factor in determining whether to offer employment to an applicant or what salary to offer an applicant. However, AB 168 specifies that it does not prohibit an applicant from "voluntarily and without prompting" disclosing salary history information to a prospective employer. If the applicant does so, the employer may rely on that information in determining the salary for that applicant.

AB 168 also requires an employer, upon reasonable request, to provide the pay scale information to an applicant applying for employment. Therefore, if an applicant inquires as to how much a specific position pays, the employer is required to provide the pay scale for that position.

California Jumps Into the Immigration Fray – And Employers Are Put Right In The Middle
California employers, especially those with a large immigrant workforce (including many food producers) need to be aware of new laws related to how employers interact with federal immigration authorities. Assembly Bill 450 (Chiu), among other things, prohibits employers from voluntary consenting to Immigration and Customs Enforcement (ICE) access to the worksite without a judicial warrant, requires employers to provide their workers with notice of certain immigration enforcement actions, and imposes new statutory penalties for violations of the law.

Under current federal immigration law, when federal immigration authorities show up at a worksite to engage in enforcement activity, an employer may allow authorities to access nonpublic portions of the worksite by either requiring a judicial warrant or voluntarily consenting to access. AB 450 essentially removes the ability of employers to "voluntarily consent" to ICE access in this manner. AB 450 similarly prohibits granting access to employment records without a subpoena or judicial warrant.

AB 450 also enacted a number of new notification requirements applicable to California employers. First, employers must provide current employees with a notice of any inspection of I-9 forms or other employment records within 72 hours of receiving notice of the inspection. In addition, employers must provide affected employees (and their representative) a copy of the notice that provides the inspection results within 72 hours of receiving it, as well as written notice of the obligations of the employer and the affected employee arising from the results of the inspection.

AB 450 also prohibits an employer from re-verifying the employment eligibility of a current employee at a time or in a manner not required by federal law.

California Enacts Job-Protected Parental Leave for Smaller Employers
Governor Brown also signed Senate Bill 63 (Jackson) – titled the "New Parent Leave Act" – to provide up to 12 weeks of job-protected parental leave for employers with between 20 and 49 employees. SB 63 makes it unlawful for a covered employer to refuse to allow a covered 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. It is important to note that this leave is not for the entire panoply of employee and family member "serious health conditions" for which leave is available under CFRA and the FMLA. Rather, leave under this new law is limited to the "parental leave" purposes described above.

Mandated Sexual Harassment Training Must Now Include Gender Identity, Gender Expression, and Sexual Orientation

Under current law, employers with 50 or more employees are required to provide at least two hours of training regarding sexual harassment to all supervisory employees every two years. Senate Bill 396 (Lara) now provides that, as a component of that training, a covered employer shall also provide training on harassment based on gender identity, gender expression, and sexual orientation. In addition, SB 396 requires employers to display a poster (developed by the Department of Fair Employment and Housing) regarding transgender rights in a prominent and accessible location in the workplace.

Reminder – CA Minimum Wage Increased 1/1/2018
Finally, although this is not the result of a bill passed this year (but instead legislation enacted several years ago), California food producers should remember that California’s minimum wage increased this year as well. Effective January 1, 2018, the minimum wage for employers with 26 employees or more increased to $11 per hour, and to $10.50 for employers with 25 or fewer employees.

This article provides only a general overview about these new California laws. It is not intended to be, and should not be construed as legal advice for any particular fact situation. If you have any questions about these new laws, or how they may affect your organization, please contact an employment attorney.
This article was written by Benjamin M. Ebbink, Of Counsel Fisher & Phillips LLP, Sacramento.

California League Of Food Producers