13 Jan

2018 Employment Law Update


Each New Year brings a host of new laws, and 2018 is no exception. There are several laws employers should be aware of. Below we summarize three of the most important changes taking effect in the New Year.

New Parent Leave Act

Beginning January 1, 2018, employers with at least 20 employees will be required to provide unpaid leave to new parents. (Note that employers with 50+ employees are already required to provide leave for new parents; thus, the new law practically applies to employers with between 20 and 49 employees.) Under the “New Parent Leave Act,” employers are required to grant new parents up to 12 weeks of unpaid leave to bond with a new child within one year of the child’s birth, adoption, or foster care placement. The employee shall be permitted to use accrued vacation, sick time, or other paid time off during the leave. The leave is otherwise unpaid. At the conclusion of the leave, the employee must be returned to his or her same or comparable position.

“Covered employers” under the law are those employers who employ at least 20 employees. “Covered employees” under the law are employees who:

  • Have more than 12 months of service with the employer,
  • Have worked at least 1,250 hours of service with the employer during the previous 12-month period, and
  • Work at a worksite where the employer employs at least 20 employees within 75 miles.

If the employee is enrolled in the employer’s group health insurance program, the employer must continue paying its share of the employee’s premiums during the leave. Note that if an employee fails to return from the leave after the leave period expires, the employer may recover those premiums paid during the leave if the employee’s failure to return is for a reason other than the employee’s own serious health condition, or other circumstances beyond the employee’s control.

“Ban the Box” Legislation

Beginning January 1, 2018, employers will face restrictions on inquiring into an applicant or employee’s criminal background. Under Government Code section 12952, employers with five or more employees are prohibited from the following:

  • Including on an application for employment any question seeking the disclosure of an applicant’s conviction history.
  • Inquiring into or considering the conviction history of an applicant before the applicant receives a conditional offer of employment.
  • Considering, distributing, or disseminating information about any of the following while conducting a criminal history background check in connection with an application for employment:
    • An arrest that did not result in conviction, subject to the exceptions in the Labor Code.
    • Referral to or participation in a pretrial or post trial diversion program.
    • Convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.

Consideration of an applicant’s criminal history will be permissible only after the employer has made a conditional offer of employment. Once an employment offer is made and the criminal history obtained, there are further restrictions on an employer’s ability to deny an applicant a position based on the applicant’s criminal background.  The employer must perform an individualized assessment that considers:

  • The nature and gravity of the offense and conduct;
  • The time that has passed since the offense or conduct and completion of the sentence; and
  • The nature of the job held or sought.

There are also several procedural steps an employer must take if they decide not to hire the applicant based on criminal history, including:

  • sending written notice of a preliminary decision;
  • providing the applicant an opportunity to respond; and
  • sending written notice of a final decision.

To ensure compliance with this new law, employers should revise their job postings, job applications, interview questionnaires, and any other related documents.

Inquiries into Salary History Prohibited

Beginning January 1, 2018, employers are prohibited from inquiring into an individual’s salary history. Salary history information includes both an individual’s rate of compensation as well as other benefits. Employers are not only prohibited from enquiring about this information directly from the applicant, but are also prohibited from seeking this information from other sources, such as an applicant’s current or former employers. There are exceptions to the prohibition, including instances where the candidate’s salary history information is publicly available pursuant to federal or state law, or where the applicant “voluntarily and without prompting” discloses his or her salary history to a potential employer.  In addition, employers are required to provide an applicant with the pay scale assigned to the position sought upon reasonable request.

For more details, or to receive a detailed memorandum summarizing the above and other 2018 laws, please contact Jennifer Sarkozy Branch at Andrews Lagasse Branch + Bell LLP, 4365 Executive Drive, Suite 950, San Diego, California, 92121, (858) 345-5080.