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New California Employment Laws 2019-Part II

By Lisa Lawrence-Hughes and JoLynn M. Scharrer

As the holidays approach once again, it’s time for California employers to familiarize themselves with the new employment legislation taking effect on January 1, 2019. This year, California has added several new laws affecting California employees, many of which are amendments to existing legislation. The Hunt Ortmann Employment Law Group is providing this three-part series to summarize key developments in each of the newly-enacted bills. Click here to read our first update in this series. Here is the second installment:

AB 2282 – Amendment to Salary History and Equal Pay Legislation

As of last January, California employers could no longer request that applicants provide their salary histories. AB 2282 amends California’s salary history and equal pay statutes, Labor Code §§ 432.3 and 1197.5, to clarify certain aspects of this existing law. There are three key takeaways from the passage of AB 2282. First, even though employers cannot ask applicants for their “salary history,” it is legal to ask for applicants’ “salary expectations.” Second, although employers must provide company pay scales to applicants who have completed at least one interview, employers are not required to provide pay scales to current employees. Third, when making internal salary decisions regarding current employees, employers are allowed to base compensation decisions on the employees’ salary history, so long as any wage differential is justified by a seniority system, a merit system, a system that measures earning by production, or a bona fide factor other than sex, race or ethnicity, such as education, training, or experience.

SB 1252 – Amendment to Wage Record Inspection Legislation

Labor Code § 226 requires employers to permit both current and former employees to inspect or copy their payroll records upon request. Under this code section, an employer who receives a written or oral request from a current or former employee has 21 calendar days from the date of the request to comply. SB 1252 amends § 226 to provide employees the additional right to receive a copy of the payroll records from the employer. This amendment does not significantly change the law, but prevents employers from passing the expense of copying the records onto the employee. Employers must still provide the records within 21 days of an employee request, and are subject to a penalty of $750 and potential attorneys’ fees for failure to do so.

SB 1412 – Amendment to Criminal Conviction History Legislation

SB 1412 amends Labor Code § 432.7, which prohibits employers from asking applicants for information concerning criminal history unless (1) the employer is required by law to obtain information regarding a conviction of an applicant; (2) the job requires possession or use of a firearm; (3) an individual who has been convicted of a crime is prohibited by law from holding the position sought; or (4) the employer is prohibited by law from hiring an applicant who has been convicted of a crime. SB 1412 makes clear that these four exceptions apply to both public and private employers. The amendment also limits employers to considering “particular convictions” when rejecting applicants. A “particular conviction” is defined as “a conviction for specific criminal conduct or a category of criminal offenses prescribed by any federal law, federal regulation or state law that contains requirements, exclusions, or both, expressly based on that specific criminal conduct or category of criminal offenses.”

AB 1976 – Amendment to Lactation Break Legislation

AB 1976 amends Labor Code § 1031 to require that employers make reasonable efforts to provide a room or location that is not a bathroom for lactation. (The amendment deletes “toilet stall” and replaces it with “bathroom.”) The amendment also allows for temporary lactation locations if certain conditions are met, and provides a narrow undue hardship exemption. Governor Brown rejected a more stringent lactation bill from the California Senate – SB 937 – which would have required employers to provide a lactation room with prescribed features and access to a sink and refrigerator, among other employer duties. In comparison to SB 937, the bill the Governor signed makes relatively minor changes to the existing law.

AB 2334 – Amendment to Workplace Safety Legislation

AB 2334 amends some of the Labor Code’s health and safety and workers’ compensation provisions in response to changes in federal law made by the Trump administration. Specifically, the amendment authorizes the California Department of Industrial Relations (“DIR”) to publish information about “the costs of administration, workers’ compensation benefit expenditures, and solvency and performance of public self-insured employers’ workers’ compensation programs.” AB 2334 also states that under the California Health and Safety Code, record-keeping violations continue until corrected or discovered. Finally, AB 2334 provides that if U.S. Occupational Health and Safety Administration (“OSHA”) “eliminate[s] or substantially diminish[es] the requirement that employers electronically submit OSHA injury and illness data,” the DIR will convene an advisory committee to assess what changes might be needed at the state level to protect the goals of current OSHA requirements.

Lisa Lawrence-Hughes is an Associate with Hunt Ortmann and is a seasoned business and employment litigator, with over 12 years of experience defending employment lawsuits and advising California employers. For more information, please visit our website here or contact us directly at employment@huntortmann.com.

JoLynn (Pollard) Scharrer is a shareholder at Hunt Ortmann and leads the firm’s Employment Law Group and Insurance Group. She can be reached at scharrer@huntortmann.com.

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