CPER Legislative and Case Law Update

2017 – 2018 Legislative Session

The following are brief descriptions of some of the new labor- and employment-related laws from the most recent session of the California Legislature. All are effective as of January 1, 2018, unless noted otherwise.

AB 46 Expands California Equal Pay Act to public employers (Government Code section 1197.5)

Amends the Equal Pay Act to include public employers. Excludes public employers from criminal punishment for violations.

AB 83 Judicial Council Employer-Employee Relations Act (Government Code sections 3524.50 et seq.)

Provides for collective bargaining for Judicial Council employees. Parallels the Dills Act.

AB 119 Public employers to provide exclusive representative access to new- employee orientations and provide contact information (Government Code sections 3555, 3555.5, 3556, 3557, 3558, 3559)

Requires public agencies (cities, counties, special districts, trial courts, state civil service agencies, school districts, the California State University and the University of California) to give an employee’s exclusive representative access to new employee orientations so that it may have “an opportunity to discuss the rights and obligations created by the contract and the role of the exclusive representative, and to answer questions.” The agency must give the representative at least 10 days advance notice (unless shorter notice is necessary in certain specified circumstances) of any new employee’s orientation whether conducted in person, online or by other means. Provides that, upon the request of either party, the representative and employer must negotiate over the “structure, time and manner” of the representative’s access. Any unresolved issues must be resolved through compulsory interest arbitration.

Requires public agencies to give the exclusive representative the name; address; job title; department; work location; work, home and personal cell phone numbers; personal email address; and home address of any new employee within 30 days of hire or by the first pay period of the month following hire and the same information every 120 days for every employee in the bargaining unit. Exempts confidential information of police officers.

Grants the Public Employment Relations Board jurisdiction over violations, except as provided.

Became effective immediately upon signing by the Governor on July 27, 2017.

AB 168 Salary history inquiries prohibited (Labor Code section 432.3)

Prohibits all public and private employers from relying upon salary history information for any applicant for employment when deciding whether to offer employment or what salary to offer and from seeking any salary history information. An employer must provide a job applicant with a “pay scale for a position” if the applicant requests it. This section does not apply to salary information that can otherwise be disclosed to the public pursuant to federal or state laws, so it would not apply to public employees seeking a new position. If a job applicant “voluntarily and without prompting” discloses his or her salary history to a prospective employer, the employer may rely on the disclosed information in determining the applicant’s salary. Reiterates Labor Code section 1197.5 that prohibits prior salary, by itself, to justify any disparity in compensation.

(Note: Governor vetoed AB 1209 that would have required employers with 500 or more employees to reveal pay differences between male and female employees.)

AB 450 Immigrant Protection Act (Government Codes sections 7285.1, 7285.2, 7285.3 and Labor Code sections 90.2 and 1019.2)

Prohibits private and public employers from allowing federal immigration officials into a workplace to interview employees without a warrant. Prohibits private and public employers from sharing employees’ confidential information without a subpoena except for I-9 forms or other documents when a Notice of Inspection is provided. Provides for penalties from $2,000 to $10,000 for employers that: (1) fail to give employees public notice within 72 hours of an upcoming federal inspection of employee records including a written notice to any collective bargaining representative; and (2) fail to provide affected employees with a copy of any Notice of Inspection and a copy of any inspection results within 72 hours.

AB 1008 New Ban-the-Box Law (Government Code section 12952)

Prohibits employers of five or more employees from inquiring into an applicant’s criminal record or conducting a background check prior to extending an offer of employment. An employer may withdraw the conditional offer because of a criminal record only if it can show a direct and adverse relationship between the conviction and specific job duties based on an individualized assessment. The employer must provide the applicant written notification and an opportunity to challenge the denial. If the applicant challenges and the employer still wishes to withdraw the offer, it must provide the applicant with a second notice advising of any existing procedures the employer has for further challenges or reconsideration and of the right to file a complaint with the Department of Fair Employment and Housing.

AB 1710 Expands prohibition of discrimination against service members (Military and Veterans Code section 394)

Expands prohibition of discrimination in employment against service members to include “terms, conditions or privileges” of employment.

SB 63 California New Parent Leave Act for Small Employers (Government Code section 12945.6)

Requires California employers with 20-49 employees within a 75-mile radius to provide up to 12 weeks job-protected unpaid leave to new parents under the same terms and conditions as the FMLA and CFRA. Also requires those employers to maintain health insurance for the employee while on leave. The FMLA and the CFRA apply to private employers with 50 or more employees within a 75-mile radius and to all public employers.

SB 285 Prohibition on Public Employers Deterring or Discouraging Union Membership (Government Code section 3550 et seq.)

Prohibits public employers from deterring or discouraging public employees from becoming or remaining members of an employee organization. Defines a public employer for this purpose to include counties, cities, districts, the state, schools, transit districts, the University of California and the California State University, among others. Grants the Public Employment Relations Board jurisdiction over violations of its provisions.

SB 306 Whistleblower protections expanded (Labor Code sections 98.7, 98.74, 1102.61, 1102.62)

Provides that the labor commissioner may investigate an employer for suspected retaliation or discrimination for a wage claim even without an employee complaint having been filed. It also gives the labor commissioner authority to issue citations and penalties directly if the investigation determines that retaliation occurred. The bill allows an employee who brings a civil action for retaliation to seek injunctive relief from the court.

SB 396 Mandatory sexual harassment training to include harassment based on gender identity, gender expression and sexual orientation (Government Codes sections 12950, 12950.1 and Unemployment Code sections 14005, 14012)

Expands the Fair Employment and Housing Act’s requirement that all employers with 50 or more employees provide at least two hours of sexual harassment training to all supervisory employees within six months of the start of employment and every two years thereafter to include training regarding harassment based on gender identity, gender expression and sexual orientation. Requires posting of a poster regarding transgender rights. Amends the definition of “individual with employment barriers” to include transgender and gender non-conforming individuals.


Case to Watch

Janus v. American Federation of State, County and Municipal Employees, 16-1466.

This case now pending before the U.S. Supreme Court raises the issue of whether public sector unions may require workers who are not members to pay fees for collective bargaining. The same issue was before the Court last year in Friedrichs v. California Teachers Association. It was anticipated that the Court would have ruled against the unions were it not for the death of Justice Antonin Scalia, which resulted in a 4-to-4 tie. It is anticipated that newly appointed Justice Neil M. Gorsuch will side with the conservative justices, resulting in a decision that goes against the unions, resulting in a depletion of union coffers and union strength.