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HUMAN RESOURCES ALERT!

Governor Signs New Leave Mandate for Small Businesses and Bans Salary History Inquiries

Governor Brown Jr. today signed legislation mandating that small businesses provide a new protected leave of absence.

This Bill takes effect on January 1, 2018.

Practically speaking, Senate Bill 63 requires employers with 20 to 49 employees to provide 12 weeks of baby bonding leave to employees pursuant to the following conditions. Covered employees must:
• Have worked more than 12 months;
• Have worked at least 1,250 hours of service during the prior 12-month period; and
• Work at a worksite where there is at least 20 employees within a 75 mile radius.

SB 63 does not apply to an employee who is covered under both CFRA and the FMLA. Those laws apply to employers with 50 or more employees. Therefore, the practical effect is that this bill applies to employers with between 20 and 49 employees within 75 miles.

The bill also prohibits an employer from refusing to maintain and pay for coverage under a group health plan for an employee who takes this leave.

In addition, the bill carries the threat of litigation for employers. SB 63 labels an employer’s failure to provide a requested leave as an “unlawful employment practice.” The employer is subject to a lawsuit should the employee allege that his or her employer:
• Did not provide the 12 weeks of protected leave;
• Failed to return the employee to the same or comparable position;
• Failed to maintain benefits while the employee was out on leave; or
• Took any adverse employment action against the employee for taking the leave.

In addition, SB 63 will require the Department of Fair Employment and Housing, upon receiving funding from the Legislature, to create a parental leave mediation pilot program. Under the pilot program, within 60 days of receipt of a right-to-sue notice, an employer may request all parties to participate in the department’s Mediation Division Program. If the employer makes such a request, the bill would prohibit an employee from pursuing any civil action under these provisions until the mediation is complete, which would include an employee’s election not to participate in mediation. The bill would provide that the employee’s statute of limitations would be tolled during the course of the mediation, as specified. The pilot program will end on January 1, 2020.

For more information, please contact your legal counsel.

Salary History Inquiry Ban

Under Assembly Bill 168 employers are banned from asking (orally or in writing) about a job applicant’s salary history and from relying on salary history information as a factor in determining what salary to offer an applicant. An employer could further be penalized for failing to provide a pay scale for the position upon demand.

Interestingly, while the law applies to charter schools, there is an exemption for salary information that is otherwise disclosable via a Public Records Act request or other State or Federal law. Finally, if an employee voluntarily discloses prior salary information that information may be used as a basis to determine a salary offer.

At this time, the new Labor Code section 432.3 has not been added to the list of “serious violations” in the Private Attorneys General Act (PAGA) of serious violations. The new Labor Code section, however, is still subject to PAGA although cure and correct provisions do apply. Regardless, a PAGA lawsuit carries the threat of significant penalties and fees for violations. For more information, please contact your legal counsel.

This Bill also takes effect on January 1, 2018.

Kind regards,
Your Team at Hansberger & Klein, PLC