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.
New laws in 2018
LGBT RIGHTS FOR LONG-TERM CARE FACILITY RESIDENTS (SB 219)
Under the Lesbian, Gay, Bisexual, and Transgender Long-Term Care Facility Residents’ Bill of Rights, refusing to use a person’s preferred pronoun, requiring identity documents from a resident who wants to use the opposite-sex bathroom or prohibiting any sexual behavior among residents would result in a misdemeanor charge.
The bill also makes it unlawful to deny admission to a long-term care facility because of gender identity or sexual orientation.
EXPANSION OF PARENTAL LEAVE TO SMALL BUSINESSES (SB 63)
This new law requires small businesses with 20 or more employees to provide eligible employees up to 12 weeks of unpaid, job-protected parental leave.
The measure will become law more than two decades after the Clinton administration gave workers at larger businesses with at least 50 employees similar unpaid family leave protections under federal law.
The leave must be taken within one year of the child’s birth, adoption or foster care placement.
During the leave, an employer must maintain and pay for coverage under a group health plan at the same level it would have been had the employee continued working.
Employers can be sued for noncompliance.
BARBERING AND COSMETOLOGY (SB 490)
This allows workers licensed under the Barbering and Cosmetology Act to be paid a commission in addition to a base hourly rate if certain conditions are met.
On Jan. 1 the state minimum wage increases to $10.50 per hour for employers with 25 or fewer employees and to $11 per hour for employers with 26 or more employees.