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New Employment Laws Affecting California Employers items 1-5

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The materials contained herein are for information purposes only and not for the purpose of providing legal advice. For advice about a particular problem or situation, please contact an attorney.

Effective January 1, 2018

There are eleven (11) significant developments in California employment law which require your attention:

1 – Minimum Wage & Minimum Salary Threshold Increased. Effective January 1, 2018, California’s state minimum wage increased for employers with twenty-six (26) or more employees from $10.50 to $11 per hour. The state minimum wage remains $10.50 per hour for employers with twenty-five (25) or fewer employees.

In 2017, California created a “minimum salary threshold,” the minimum base salaried employees can be paid to be exempt from California’s overtime laws.

The minimum salary threshold for employers with twenty-five (25) or fewer employees remains unchanged at $43,680 per year ($21 per hour based on a 40-hour workweek and 2080 hours worked per year), but increased to $45,760 per year ($22 per hour) for employers with twenty-six (26) or more employees

The minimum wage and minimum salary threshold will continue to increase:

≤25 Employees ≥ 26 Employees
Date Rate Min. Salary Rate Min. Salary
1/1/2018 $10.50 $43,680 $11 $45,760
1/1/2019 $11 $45,760 $12 $49,920
1/1/2020 $12 $49,920 $13 $54,080
1/1/2021 $13 $54,080 $14 $58,240
1/1/2022 $14 $58,240 $15 $62,400
1/1/2023 $15 $62,400

Starting in January 2024, further increases will be made using a formula linked to the US Bureau of Labor Statistics non-seasonally adjusted Consumer Price Index.

Note: Any scheduled annual increase can be rejected by the California state legislature.

Local Minimum Wage Increased: Some cities, including Berkley, Los Angeles, Oakland, San Diego, San Francisco, and San Jose have higher city-wide minimum wages.

Berkeley’s minimum wage will increase from $13.75 per hour on October 1, 2018 to $15.00 per hour.

Los Angeles’ minimum wage is $10.50 per hour. It will increase annually thru 2021, based upon employer size:

≤ 25 Employees ≥ 26 Employees
7/1/2018 $12.00 $13.25
7/1/2019 $13.25 $14.25
7/1/2020 $14.25 $15.00
7/1/2021 $15.00 $15.00

San Diego’s minimum wage will remain at $11.50 per hour in 2018. Starting on January 1, 2019, the minimum wage will increase with the Consumer Price Index.

San Francisco’s minimum wage will increase from $14.00 per hour on July 1, 2018 to $15.00 per hour. Increases will be linked to the consumer price index.

San Jose’s minimum wage increased from $12 per hour to 13.50 per hour on January 1, 2018. On January 1, 2019, it will increase to $15 per hour on January 1, 2019.

Immediate Action Required: Review your job descriptions, employee locations, and payroll to ensure compliance with applicable local and state wage laws.

2 – Inquiring About Applicant’s Pay At Previous Jobs No Longer Permitted. Effective January 1, 2017, California’s Equal Pay Act was amended to prohibit employers from using prior pay history, “within itself from justifying any disparity in compensation.” The 2017 change seeks to address concerns that salary history institutionalizes prior discriminatory pay practices.

As of January 1, 2018, California employers are prohibited from inquiring about applicant’s prior pay history. Employer must also, upon the reasonable request of an applicant, provide applicants with the pay scale for the position for which they have applied. Violation of the new law is a misdemeanor. The new law, however, does not prohibit an applicant from voluntarily and without prompting disclosing their salary history, and does not prohibit employers from considering or otherwise relying on voluntarily disclosed wage history in determining the wages offered.

Immediate Action Required: Job applications, and other hiring documents, should be reviewed to ensure compliance with the new law. Employers should train personnel to ask prospective hires what they would like to earn, and prepare to advise the prospective hire of the pay scale which the position pays.

3 – Pre-Hiring Inquiries of Prior Criminal Convictions Not Permitted (aka the “Ban the Box” Law). Since January 1, 2014, it has been unlawful for employers to ask about, seek, or utilize as a condition of employment information about criminal convictions that have been expunged (judicially set aside), or about arrests or detentions that did not result in a conviction, or to ask about an applicant’s referral to or participation in a pre-trial or post-trial diversion program. Employers violating the law face civil penalties and even misdemeanor criminal charges if the inquiry was intentional. Effective January 1, 2017, these prohibitions were expanded to include juvenile arrests, criminal records and criminal convictions.

Effective January 1, 2018, employers with five (5) or more employees, may no longer:

  • Include on any application for employment any question that seeks the disclosure of an applicant’s conviction history;
  • Inquire into or consider the conviction history of an applicant until that applicant has received a conditional offer.

Post-Offer background checks are permitted. However, employers may not disseminate information related to an applicant’s arrests, diversions, and convictions.

When a decision not to hire based on an applicant’s history of convictions, the decision must be supported by a direct and adverse relationship between the applicant’s criminal conviction history with the specific duties of the job. For example, prior convictions for theft would be a basis to deny an offer of employment as a cashier.

However, the new law also requires that the employer provide the applicant with a written notice of its decision not to hire, which includes specific reasons why the prior conviction makes the applicant ineligible for the job. The notice must include a copy of the criminal history background check.

Applicants must then be given five (5) business days to respond to the employer’s notification before the employer makes its final not to hire decision. If the applicant notifies the employer in writing that s/he disputes the accuracy of the conviction history, the applicant will have an additional five (5) days to obtain evidence to support that assertion.

Employers must consider any information submitted by the applicant before making a final not to hire decision. Employers who deny employment must then notify the applicant in writing of its final decision to deny employment, providing specific reasons.

Immediate Action Required: Review current employment applications, and other pre-hire forms to ensure compliance with the new law. Provide training to all personnel performing pre-hire interviews and hiring to educate them on the new law. Offers of employment should be made conditional on successfully passing a background check. Do not perform background checks prior to an offer of employment, and give yourself time to obtain and review the results prior to the employee starting work. Consult with an employment attorney to ensure compliance when denying an applicant based upon prior criminal history.

4 – New State Limitations On Immigration Worksite Enforcement. Effective January 1, 2018, and unless otherwise required by federal law, it is unlawful for a California employer to permit an immigration enforcement agent to enter the nonpublic areas of a place of work without a warrant, or consent to an immigration enforcement agent accessing, reviewing, or otherwise obtaining employee records without a subpoena or court order.

California employers are also required to provide employees written notice of any request by immigration officers of a notice to inspect I-9 documents and forms. The Labor Commissioner has been charged with creating a form for employer notice of such requests by July 1, 2018.

Both the Labor Commissioner and the California Attorney General have been given enforcement authority, with the penalty for failure to comply ranging from $2,000 to $5,000 for the first violation, and $5,000 to $10,00 for each subsequent violation.

Employers are also prohibited from re-verifying the employment eligibility of a current employee when not required by specified federal law. Penalties for unauthorized re-verification of eligibility to work in California range up to $10,000 per incident.

Recommended Action: Immediately consult with the employment attorney when faced with any of these immigration issues.

5 – Gender Neutral Terms, “Nonbinary” Gender Identity, New Sexual Harassment Training Requirements. California has enacted several laws to address the discrimination to the transgender community.

Effective March 1, 2017, all California businesses that serve or are open to the public and maintain toilet facilities available to the public free of charge, are required to put up signs identifying those single-user toilet facilities as all-gender.

Effective January 1, 2018, California employers are required to revise all written state leave policies so that they are gender neutral. Gender natural documents do not contain references to “female” or “male” and do not contain gender specific personal pronouns.

Starting in 2005, California law requires that California employers with fifty (50) or more employees provide supervisors with two (2) hours of sexual harassment training every two years. New supervisory employees must complete the training within six (6) months of starting their new position. Effective January 1, 2018, the training must include abusive conduct commonly known as “bullying”. The training should also include explanations of the meaning of gender expression, gender identity, transgender, transitioning, sex, sex stereotype, and the use of preferred names and pronouns.

Effective September 1, 2018, the Gender Recognition Act permits individuals to obtain a new birth certificate under which they can identify their gender as either male, female or nonbinary. Effective January 1, 2019 state driver’s license and state identification cards can be obtained listing gender as nonbinary.

Immediate Action Required: Put up “All Gender Assessable Signs” as required. Review and revise Employee Handbooks, Forms, and Notices and make all appropriate grammatical changes. Significantly, an employee may request to be addressed using a specific gender (changing she/her hers to he/him/his, or vice versa). The employee may also ask to be addressed using nonbinary or gender neutral pronouns by using the singular they/them/their or ze/hir/hirs. While not generally accepted in common language, employers are reminded that language evolves to fit the needs of its speakers, and reasonable accommodation of such requests can avoid litigation. Should you have questions, contact an employment attorney.

 

 

New Free Tool To Help Draft Job Descriptions The Law Offices of Douglas M. Wade, PLC has been working with MinuteCreator, Inc. to provide a new tool to help employers draft job descriptions. The tool lets employers search The Bureau of Labor Statistics Standard Occupation Classifications for a job title, and then using the Occupational Information Network (O*Net) lists matching job titles. Users can then click on the search results to preview the job description, and then download the full job deception in MS Word (.docx) file format.

The new free tool can be accessed via this link, or by going to MinuteCreator.biz and clicking on the Job Description Maker link.

Should you have questions about these or any other workplace law, please contact me at doug@dmwadelaw.com.

The materials contained herein are for informational purposes only and not for the purpose of providing legal advice. For advice about a particular problem or situation, please contact an attorney.

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