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US – Recent employment law developments in California

Written by
FordHarrison LLP, nationwide U.S. law firm with a singular focus on HR law.
A number of new employment laws came into effect in California on 1 January 2018. These new laws cover a wide range of areas in employment, including leave of absence, the job application process and background checks and are expected to have a significant impact on employers operating in California. This article provides a brief overview of them.

Expansion of parental leave protections to small employers (SB 63)

Previously, California restricted unpaid ‘baby-bonding’ leave to employers with at least 50 employees within a 75-mile radius. The new law now extends ‘baby-bonding’ leave to small employers. Employers with at least 20 employees within a 75-mile radius now must provide eligible employees with at least 12 weeks of parental leave within one year of the child’s birth, adoption or foster care placement.

Salary history ban (AB 168)

All employers, regardless of size or location, are now prohibited from seeking salary history information from a job applicant, and, upon reasonable request, must provide the pay scale for a position. Similarly, the new law prohibits employers from relying on an applicant’s salary history. The new law is meant to support the state’s recent amendments to the California Equal Pay Act, which places the burden on employers to justify any pay discrepancies among substantially similar positions between gender, race or ethnicity.

Consideration of applicants’ criminal backgrounds (AB 1008)

California has now expanded its ‘ban the box’ law (removing requirements to disclose conviction history from job application processes). For all employers with five or more employees, the new law, among other things:

  • Prohibits employers from inquiring into the applicant’s conviction history until a conditional offer of employment has been made.
  • Requires the employer to conduct an individualised assessment demonstrating that the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job.
  • Requires the employer to provide notice to the applicant, including a copy of any conviction history report, and a five-business day period to dispute the accuracy of report.
  • Requires the employer to notify the applicant of any final decision, among other disclosures. That said, the law narrowly excludes from coverage positions for which a state or local agency is required by law to conduct a criminal background check; law enforcement positions; farm labour contractors; and positions for which federal, state or local laws require employers to check criminal history.


Immigrant Worker Protection Act (AB 450)

This law prohibits, subject to certain exceptions, employers from allowing immigration agents to access non-public areas of the workplace without a judicial warrant, as well as access to employee records without a subpoena or court order. The new law also requires, among other things, an employer to provide notice of an immigration agency’s inspection of I-9 forms (confirming an employee’s identity and authorisation to work) or other records within 72 hours, and provide a copy of the inspection notice and any results to affected employees and their authorised representatives.

Additions to Harassment Training (SB 396)

As part of already mandated biennial harassment training for supervisors, all employers with 50 or more employees must include in their training practical examples to address harassment based on gender identity, gender expression and sexual orientation.

We advise clients to take legal advice and have their employment policies and practices reviewed to ensure compliance with the new laws in California.