California employers, especially small employers, will be challenged to keep up with a slew of new laws going into effect Jan. 1.
Those include a minimum wage increase, wage liability for construction general contractors, and how to deal with Immigration and Customs Enforcement (ICE) in the workplace, but of all the changes coming, a number of laws dealing with gender equality, identification and retaliation will have the most wide-sweeping impact on employers, said Mark S. Spring, partner at Carothers, DiSante and Freudenberger LLP which specializes in California labor and employment law, with offices in San Francisco and Sacramento.
The sheer amount of the new laws is unfair to employers, Spring said.
“It’s hard enough for our firm with 45 attorneys to keep up with the changes. How are small employers supposed to keep up with this stuff? I really wish there was a better way to inform people,” he said.
One of the new laws, the Fair Pay Act Expansion, AB 46, extends the prohibition against wage discrimination on the basis of gender, race and ethnicity to public employers. The existing law only covers private employers.
“The landscape has changed. Employers will have to be very, very careful and much more sensitive,” Spring said. Another bill, SB 306, broadly expands the ability of the state labor commissioner to pursue discrimination complaints in the workplace.
This law allows the commissioner to obtain a court order prohibiting an employer from firing or disciplining an employee, before completing its investigation or determining retaliation or discrimination has occurred against a worker.
“Previously, the commissioner had to prove irreparable harm before obtaining a court order. Now, they can seek it during the investigation,” Spring said. “The standard has been lowered. It will be interesting to see how aggressively the commissioner will utilize these tools.”
Even without the law, Spring said his firm expects to see more discrimination lawsuits going forward in 2018 because of the attention to sexual harassment claims in the news has made it more acceptable to come forward with a claim.
“I’m definitely shocked at how prevalent it is. Even someone like me practicing for 25 years and seeing it. We expect to see more complaints filed, and to see a lot more attention paid by employers when complaints are made,” he said.
Currently, California employers with 50 or more employees must provide supervisors with two hours of sexual harassment prevention training every two years. Beginning Jan. 1, under SB 396, the two-hour harassment training must include components of harassment based on gender identity, gender expression, and sexual orientation, and include specific examples of such harassment. This part of the training must be presented by trainers with knowledge and expertise in these areas.
The bill also requires employers to display a poster on transgender rights developed by the Department of Fair Employment and Housing.
Under another bill, SB 295, sexual harassment prevention training must also be provided to receive a farm labor contractor’s license. Training must be conducted or interpreted into a language understood by the employee, and the Labor Commissioner must receive a list of harassment prevention training materials used and the number of employees trained.
Two changes affecting the job application process also will have a big impact on employers, Springer said.
Under AB 168 employers cannot ask about a job applicant’s salary history, compensation or benefits, either directly or through an agent, such as a third-party recruiter.
Being able to determine an applicant’s salary requirements and history has “been a longstanding part of the hiring process. It’s a big change and may be a challenge for smaller employers not aware of the changes,” Spring said.
The law also requires an employer to provide a job applicant, upon request, with the pay scale for the position.
AB 1008 or “Ban the Box” expands on an existing state law prohibiting employers in California with five or more employees from asking an applicant to disclose prior criminal conviction information until the applicant is determined to be qualified for the position and is given an offer.
This law is among the strongest and most expansive in the nation, according to CalCahmber, an HR expert and business advocate.
Another bill, AB 450, provides workers with protection from immigration enforcement while on the job.
The law requires employers to refuse to give federal Immigration and Customs Enforcement (ICE) agents access to non-public areas of a businesses or employee records without a warrant or subpoena.
Previously, a warrant or subpoena were not necessary.
Fines for employers not complying could be as much as $10,000 by the California Labor Commissioner, and could weigh heavily on smaller company’s whose managers or HR departments may not be aware of the law.
“It’s putting employers in an unenviable position as a third party between the federal government and private parties,” Spring said. “I think it’s an unfair law that will be challenged.”
Construction contractors are also facing challenges with AB 1701, which increases liability for unpaid wages.
For certain private construction contracts entered into after Jan. 1, the law imposes liability onto the general contractor for any unpaid wages, benefits or contributions that a subcontractor owes to a laborer under the contract. Previously, the general contractor was not liable.
“It will have a huge impact. It’s an additional risk for direct contractors when they don’t have control over what subcontractors pay their workers. It’s a major shift,” Spring said.
Cynthia Sweeney covers health care, hospitality, residential real estate, education, employment and business insurance. Reach her at Cynthia.Sweeney@busjrnl.com or call 707-521-4259.