Employers take note: a new slate of employment laws were signed into California law this month, with some taking effect as soon as January 1, 2018. Read on below to see how a few of these new developments may affect your business.
AB 450: Employers Prohibited from Consenting to ICE Searches
Signed by Governor Brown on October 5th, AB 450 prohibits California employers from voluntarily consenting to federal Immigration and Customs Enforcement (ICE) officers’ requests to search a workplace. Like other searches conducted by government officials, workplace searches conducted to enforce federal immigration law require either a judicial warrant or consent to search. AB 450 will remove the latter option, prohibiting employers from consenting to a search of any non-public premises or employee records and forcing immigration officials to pursue a judicial warrant in each case.
As part of a broader effort to make California a “Sanctuary State,” AB 450 is intended to frustrate the Trump administration’s more robust enforcement of federal immigration law. However, in AB 450’s effort to protect undocumented workers and their employers from the hazards of immigration enforcement, the law puts employers in a tight spot between opposing state and federal interests.
A first-time violation will penalize an employer with a $2,000 to $5,000 civil penalty, which increases to a $5,000 to $10,000 penalty for each subsequent violation. It is also a violation when someone acting on behalf of the employer consents to a search, so employers will need to carefully train their employees on how to deal with a visit from ICE officers.
The new law will also impose new notice requirements on employers. Employers will be required to give their employees and their employees’ collective bargaining representative notice within 72 hours upon receiving notice of an inspection of I-9 forms. Employers must also furnish employees with a copy of such notices of inspection on request and must provide employees and their representative a copy of any notice of inspection results within 72 hours of receipt by the employer. The penalty for violation is again $2,000 to $5,000 for a first offense and $5,000 to $10,000 for each violation thereafter.
AB 450 goes into effect on January 1, 2018. In the meantime, California employers should consider consulting with an attorney and developing a staff training program, where necessary, to prepare supervisors for dealing with ICE agents in a way that complies with the new law.
AB 168: Employers Prohibited from Inquiring into Applicants’ Salary History
On October 12, Governor Brown signed AB 168, which prohibits all California employers—private and public—from asking about or using a job applicant’s prior salary information when deciding whether to hire and how much salary to offer.
The law does not prohibit consideration of prior salary when an applicant voluntarily and without prompting discloses prior salary information to a prospective employer. Nevertheless, employers are still forbidden from using prior salary information alone to justify a disparity in compensation under the California Fair Pay Act.
AB 168 will also require that, upon request by an applicant for employment, an employer must provide the pay scale for a position.
AB 168 goes into effect January 1, 2018. California employers should prepare for the change in the law by reviewing their employment applications to remove any newly-prohibited questions and by training their hiring staff to be sensitive to the new prohibitions. Employers should also consider defining pay scales for their positions, to the extent necessary.
AB 1008: Restriction on Employers’ Consideration of Applicant’s Criminal Background
On October 14th, Governor Brown signed AB 1008, the statewide “ban-the-box” provision, into California law. Following similar provisions established in Los Angeles, San Francisco, and elsewhere, the statewide “ban-the-box” law will restrict the ability of employers to ask about, consider, or reject applicants based on past criminal background.
Under the new law, employers with five or more employees will be prohibited from asking about an applicant’s prior criminal background on their initial employment application and throughout the entire hiring process until a conditional offer has been made to the applicant. If an employer intends to deny employment based on an applicant’s conviction history, the employer must make an “individualized assessment” stating that the applicant’s conviction history has a “direct and adverse relationship with the duties of the job that justify denying the applicant the position.” Upon such a finding, the new law requires employers to provide the applicant written notice of such a finding and an opportunity to respond to or challenge it. Employers must consider any such response and, if still intending to reject the applicant, must provide a second written notice describing the outcome and any remaining recourse the applicant may have to challenge it.
Exceptions to the law are few; it only excludes positions for which a state or local agency is required to conduct a conviction history background check, positions with criminal justice agencies, positions for farm labor contractor work, and positions where an employer or agent thereof is required by local, state, or federal law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history.
AB 1008 likewise goes into effect January 1, 2018. California employers will need to revise their hiring policies, employment applications, and other aspects of their hiring process to avoid being penalized under the Fair Employment and Housing Act.
If you have any questions about the details of any of these new California employment laws, are unsure how any of them will affect your business, or would like assistance in crafting policies and procedures that will comply with these new requirements, please feel free to consult with one of Murphy Campbell Alliston & Quinn’s experienced employment law attorneys.