California Remains Bellwether State for Expanded Employee Protections

Welcome to CaliforniaIt’s no secret that California is often at or near the forefront when it comes to new developments to expand employee protections.

Sometimes, these measures become a bit of an outlier. But on many occasions, with minimum wage hikes being just one example, a host of other states eventually follow the Golden State’s lead.

Here are some notable steps California has taken recently affecting employers:

1.    New Protections for Transgender Workers

Effective July 1, 2017, California has new regulations regarding transgender identity and expression in the workplace. The Fair Employment and Housing Council’s final regulations provide that an employer may not impose any physical appearance, grooming or dress standards on job applicants or employees that are inconsistent with an individual’s gender identity or gender expression, unless the employer can show a business necessity.

The regulations also state that it is unlawful to ask about or require proof of a job applicant’s gender, gender identity or expression as a condition of employment. In addition, they note it is unlawful to discriminate against an applicant based on the applicant’s failure to designate his or her sex on an application form.

The protections also extend into the bathroom. A California employer must permit its employees to use a restroom facility that corresponds to their gender identity or expression. This means it cannot require employees to use the bathroom that corresponds with their sex at birth.

2.    Minimum Wage Hikes

While the federal minimum wage remains seemingly frozen in a time warp at $7.25, unchanged since 2009, California is among the states that have gone much further. On January 1, 2018, the state’s minimum wage will rise from $10.50 to $11.00 per hour for employers with 26 or more employees. For smaller employers, the minimum wage will rise from $10.00 to $10.50 per hour.

Annual increases will continue until the state’s minimum wage reaches $15.00 per hour for larger employers on January 1, 2022, and $15.00 per hour for employers with 25 or less employees on January 1, 2023. You might need a scorecard to keep up, so here is a snapshot of the schedule.

For employers with 26 or more employees:

  • Jan. 1, 2018 – $11.00 per hour;
  • Jan. 1, 2019 – $12.00 per hour;
  • Jan. 1, 2020 – $13.00 per hour;
  • Jan. 1, 2021 – $14.00 per hour; and
  • Jan. 1, 2022 – $15.00 per hour.

Meanwhile, smaller employers will follow minimum wage increases that lag one year behind the schedule for larger employers. Thus, their rate will rise to $11.00 on January 1, 2019, and by one dollar each year thereafter until reaching $15.00 per hour.

But that’s not all. Employers cannot afford to ignore the bevy of municipal minimum wage increases that have arisen. This is true nationwide in 2017, but particularly so in California. For instance, the following big cities have upped their minimum wage ahead of the state’s current rate:

  • Los Angeles – $12.00 per hour if 26 or more employees ($13.25 as of July 1, 2018, reaching $15.00 by July 1, 2020);
  • Oakland - $12.86 per hour (adjusted for inflation Jan. 1, 2018, and every Jan. 1 thereafter);
  • San Diego - $11.50 (adjusted for inflation Jan. 1, 2019, and every Jan. 1 thereafter);
  • San Francisco - $14.00 (rising to $15.00 on July 1, 2018, and adjusted for inflation every July 1 thereafter); and
  • San Jose - $12.00 (rising to $13.50 on Jan. 1, 2018, $15.00 on Jan. 1, 2019).

At least 15 other California municipalities have raised their minimum wage rates so employers must keep abreast of these local increases.

3.    Salary History

Golden Gate Bridge

San Francisco recently made news by enacting a law that will prohibit employers from asking salary history questions of prospective employees.

Effective July 1, 2018, the ordinance will prohibit employers, including city contractors or subcontractors, from considering an applicant’s current or past salary in deciding whether to hire them or what salary to pay them.

The new law also will ban employers from disclosing a current or former employee’s salary history, without the individual’s authorization, unless the salary history is publicly available or is subject to a collective bargaining agreement.

Employers will have a one-year grace period to adjust to the new law, during which San Francisco will issue written warnings and notices to offending employers but will not otherwise penalize them. Effective July 1, 2019, though, city employers may be subject to fines as well as lawsuits for egregious violations.

And before anyone dismisses this as San Francisco being a land entirely of its own, you may want to think again because a statewide law along similar lines may not be too far behind. The state assembly already has voted decisively to prohibit employers from asking applicants what they earned in their previous jobs, and the bill now awaits a vote in the state senate.

A few other states, including Delaware, Massachusetts and Oregon, have passed similar salary history question restrictions, so stay tuned!

4.    Domestic Violence

Domestic violence continues to be an issue affecting all kinds of employers, whether because it affects workplace safety, employee performance or an employee’s need for leave.

California has long required companies to provide time off from work to an employee who is a victim of domestic violence, sexual assault or stalking to obtain a restraining order, appear in court or seek medical attention. It also has required most employers to provide employees with a reasonable accommodation, when requested, to ensure their safety at work as well as their right to be free from retaliation and discrimination.

Effective July 1, the state went even further with amendments to its Victims of Domestic Violence Employment Leave Act. The amendments require employers with at least 25 employees to provide all employees with written notice of these rights at their time of hire or upon their request. Employers may wish to include a sample notice, provided by the Labor Commissioner with all of the necessary language, in each new hire package.

5.    And Finally…

As always in California, it’s worth remembering that however many developments are in the state legislature, the cities are often going even further. The various minimum wage increases and the San Francisco salary history prohibition listed above are but two examples.

This is especially true when it comes to “ban the box” laws restricting employers from asking criminal history questions or conducting a background check. The following cities have broad “ban the box” measures:

  • Los Angeles;
  • San Francisco; and
  • Richmond.

The Los Angeles ordinance bans criminal history inquiries by employers with 10 or more employees until after a conditional job offer has been made. Meanwhile, the Richmond measure bans such questions at any point in the hiring process and applies regardless of where the employer is based.

Paid family leave is another area where a big California city has taken the lead. A groundbreaking San Francisco ordinance requires companies to offer six weeks of fully paid parental leave to new parents. As of July 1, 2017, the law applies to employers with 35 or more employees. But effective January 1, 2018, it will extend to employers with 20 or more employees.

Starting in 2018, California’s state paid family leave program will follow San Francisco’s lead by increasing the pay employees on leave can receive to 60% of their wages. It also will create a new classification to enable low-income workers to receive 70% of their pay.

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