Fair Pay Act’s Wage Discrimination Prohibitions Expressly Extended to Public Employers
Joseph Ortiz, Partner, Best Best & Krieger LLP.
California lawmakers passed a swell of legislation last year aimed at extending the rights of all employees, regardless of gender identification, salary history, criminal past and more.
Below, we explore the most impactful developments that public employers and employees will see in 2018 — a year in which employers will need to review their applications to ensure compliance with updated state laws. Unless noted, provisions went into effect Jan. 1.
Government Workers Added to Equal-Pay Law (Assembly Bill 46)
California’s widely applauded Fair Pay Act has continued expanding to include more workers.
The latest addition: public employees, including the state Legislature.
Passed in 2015, the FPA aims to end workplace pay inequalities by mandating that employers pay women and men equally for performing substantially similar work. The law was expanded beyond an employee’s sex in 2016 to eliminate wage discrimination based upon an employee’s race, ethnicity and prior salary.
Absent from the law, however, was explicit protections for public workers. AB 46 changed that. The bill specifically defined “employer” as to include both private and public employers.
Salary History Inquiries Are Now Prohibited (Assembly Bill 168)
Employers (including state and local governments) can no longer ask applicants about past salaries.
AB 168 prevents employers from using an applicant’s prior compensation and benefits to determine whether to hire the applicant or what salary will be offered. The law also requires that employers provide applicants with a pay scale for the job they seek upon request.
Though the salary privacy bill applies to both men and women, the law was enacted to combat gender-based wage discrimination that could follow a woman from job to job.
With Gov. Jerry Brown’s signature, California became the fourth state – after Delaware, Massachusetts and Oregon – to prohibit employers from asking about a potential employee’s previous salary.
Harassment Training to Cover Gender Identity, Expression (Senate Bill 396)
The California Fair Employment and Housing Act requires employers with 50 or more employees to provide supervisors with two hours of sexual harassment training every two years.
Under SB 396, these trainings must include an anti-harassment component on gender identity, gender expression and sexual orientation. The law also requires employers to display the Department of Fair Employment and Housing’s poster on transgender rights in a prominent and accessible location.
In addition, FEHA was revised under Assembly Bill 1556 to remove gender-specific personal pronouns from pregnancy-related employment statutes and replaced them with “person” and “employee.”
Protecting Transgender, Gender Non-Conforming Individual Rights
The California Fair Employment and Housing Council issued regulations last May to prevent workplace discrimination and strengthen protections of transgender and gender non-conforming individuals.
These regulations, requiring the implementation of new policies, went into effect July 1:
- An employer cannot ask about a person’s sex, gender, gender identity or gender expression as a condition of employment;
- An employer must provide access to comparable, safe and adequate facilities to all employees regardless of sex;
- An employer must abide by an employee’s request to be identified with a preferred gender, name or pronoun;
- An employee will be permitted to perform jobs and duties that correspond to the gender identity or expression, regardless of their assigned sex at birth;
- An employee will be permitted to use facilities corresponding to their gender expression and identity, regardless of their assigned sex at birth.
On the Job Protections from Immigration Prosecution (Assembly Bill 450)
As Brown made California a “sanctuary state” (Senate Bill 54), which, among other things, prohibited state and local agencies from using resources to aid federal immigration agents, he signed into law AB 450, laying out immigration-enforcement regulations specific to employers.
The Immigrant Worker Protection Act places restrictions on employers cooperating with federal immigration agencies, except where legally required.
The law prevents public and private employers from voluntarily providing immigration-enforcement agents with access to nonpublic workplaces and employee records without a judicial warrant or subpoena. This does not apply to Form I-9 compliance requirements.
Starting July 1, employers must notify employees and the Labor Commissioner of Form I-9 and other employment record inspections by a federal immigration agency within 72 hours of receiving the notice of inspection.
Parental Leave Extended to Smaller Organizations (Senate Bill 63)
The California Family Rights Act provides 12 weeks of job-protected bonding leave to eligible employees following the birth, adoption or foster-care placement of a child. This baby-bonding provision, however, only applies to employers with 50 or more employees.
The New Parent Leave Act extends comparable baby bonding leave to eligible employees of organizations employing 20 or more people. To qualify for the leave, employees must have been with the organization for 12 months and worked at least 1,250 hours for at least one year.
Click here to watch a webinar entitled “Labor & Employment Law: What Changed in 2017.”
Labor Commissioner Injunctions for Retaliation (Senate Bill 306)
SB 306 expanded the California Labor Commissioner’s authority to investigate employers — with or without an employee complaint — if it suspects an employee was discharged, discriminated or retaliated against during the course of a wage claim or in instances of suspected immigration-related threats.
The law allows the Labor Commissioner to seek a preliminary injunction — a court order preventing certain actions — prior to an investigation by lowering the burden for injunction to finding a “reasonable cause” to believe a violation has occurred.
To ensure compliance with these new provisions, public employers may need to review and update their employment applications to remove questions regarding salary and criminal history, employee handbooks and policies as well as immigration-compliance and harassment-training procedures.
Joseph Ortiz is a partner with Best Best & Krieger LLP. Based in the firm’s Riverside office, he is an experienced trial and human resources attorney, who represents and advises municipal and private employers in employment law-related matters including labor negotiations, wage and hour disputes, harassment trainings and more. He can be reached at firstname.lastname@example.org” email@example.com.