Labor and Employment Bills AB 168, 450, and 1008: What Employers Need to Know

The 2017 legislative session has come to an end and Governor Brown has signed into law a number of significant labor and employment related bills that will soon impact California’s workplaces. Below is a summary of three key laws taking effect on January 1, 2018:

Salary History:

Assembly Bill 168 (AB 168) prohibits all employers, including state and local government employers and the Legislature, from relying on the salary history information of an applicant as an element in determining whether to offer employment or what salary to offer.  It also prohibits all employers from seeking salary history information about an applicant for employment.  Upon reasonable request, an employer is required to provide the pay scale for a position to an applicant applying for employment.

However, applicants may voluntarily and without prompting disclose salary history information to a prospective employer.  If the applicant voluntarily and without prompting discloses salary history information, the prospective employer may consider or rely on that volunteered information in determining the salary for that applicant.

Salary history information disclosable to the public under federal or state law is exempt from this bill.

Immigration Enforcement:

Assembly Bill 450 (AB 450) prohibits employers from voluntarily allowing immigration enforcement agents to enter non-public areas of a workplace without a judicial warrant, and will prohibit immigration enforcement agents from accessing, reviewing, or obtaining employee records without a subpoena or court order. This bill will also require that employers provide employees with notice of an immigration agency’s inspection of I-9 forms and other employment verification documents within 72 hours of receiving notice of the inspection. The employer must also provide any affected employees with a copy of the immigration agency’s inspection results and a written notice of the obligations of the employer and the affected employee arising from the action. Penalties for failure to satisfy these provisions are between $2,000 and $5,000 for the first violation, and $5,000 to $10,000 for each additional violation.

Criminal History:

Assembly Bill 1008 prohibits employers with five or more employees to do any of the following:

• Include on an employment application, before making a conditional offer of employment to the applicant, any question seeking disclosure of an applicant’s conviction history.
• To inquire into or consider the applicant’s conviction history, including any question about conviction history on the employment application, until after the employer has made a conditional offer of employment to the applicant.
• To consider, distribute, or disseminate information about an applicant’s prior arrests, referral to or participation in a pretrial or post trial diversion program, and sealed, dismissed, expunged, or statutorily eradicated convictions.

Only after making a conditional offer of employment may an employer inquire about an applicant’s criminal record. If the employer intends to deny an applicant employment solely or in part because of the applicant’s conviction history, that employer is required to make an individualized assessment of whether the applicant’s conviction history has a “direct and adverse” relationship with the specific duties required by the position.  Only a “direct and adverse” relationship with the specific duties of the job would justify denying the applicant the position.  In making this assessment, the employer is required to consider all of the following:

• Nature and gravity of the offense or conduct
• Time that has passed since the offense or conduct and completion of the sentence
• Nature of the job held or sought

If the employer makes a preliminary decision that he applicant’s conviction history disqualifies the applicant from employment, the employer must notify the applicant of the preliminary decision in writing.  The bill contains the time guidelines allotted for which a candidate is permitted to respond to the employer’s preliminary denial of employment.

If the employer makes a final decision to deny an application solely or in part because of the applicant’s conviction history, the employer must do so in writing.  This writing must include the final decision, any procedure the employer has for the applicant to challenge the decision or request reconsideration, right to file a complaint with the Department of Fair Employment and Housing.

The bill contains a list of positions exempt from the bill.

For more information about the impact of this new legislation and to ensure you are complying with the prevailing requirements, contact Miller Morton Caillat & Nevis, LLP.