CalChamber Legal Editors
© California Chamber of Commerce
In the past, California employers needed to worry only about new laws taking effect on January 1 of each year. Nowadays, midyear changes for California employers have become a new norm, either as a result of legislation with delayed implementation dates or the passage of midyear regulations.
Below is a summary some of the state laws you need to pay attention to this summer. Content on HRCalifornia is updated to reflect these changes; please visit the individual HR Library pages for more information on these topics.
In addition, several local ordinance changes also took effect on July 1. For more information on these changes, see “Minor Mistakes, Major Penalties: Pay Attention to Local Ordinances and Recent Updates.”
1. Criminal History Regulations
California’s new criminal history regulations went into effect July 1, 2017. The regulations reiterate existing prohibitions on the use of criminal history information in employment decisions and impose additional restrictions. If you conduct criminal background checks, make sure that your policies comply with the new regulations.
California employers cannot use criminal history information in employment decisions if doing so would have an “adverse impact” on a protected class (including race, national origin and gender), unless you can show that the information is job-related and consistent with business necessity.
Hiring decisions based on an applicant’s criminal history must be clearly related to successful performance in the job and in the workplace, and must measure a person’s fitness for the specific position at issue.
To show job relatedness and business necessity, an employer must, at a minimum, consider the nature and gravity of the offense, the elapsed time since the offense and the nature of the job at issue.
In addition to existing notice requirements under federal and state law, the new regulations require you to notify individuals who are screened out because of criminal history and give them an opportunity to provide information showing why they should not be excluded.
You can find more information in the HR Library’s Obtaining Criminal History section.
2. Gender Identity/Gender Expression Regulations
On July 1, 2017, new California regulations took effect that specifically address protections for transgender persons, including equal access to use of facilities, such as restrooms.
Under California’s Fair Employment and Housing Act (FEHA), employers cannot discriminate on the basis of gender identity or gender expression or because an individual is transgender. The new regulations also make it unlawful to discriminate against someone who is transitioning, has transitioned or is perceived to be transitioning. The regulations provide specific definitions of the terms “gender identity,” “gender expression,” “transgender” and “transitioning.” Understanding basic definitions and concepts is part of the process for creating a respectful workplace and improving communication.
The regulations prohibit employers from asking questions that identify an individual on the basis of sex, gender, gender identity or gender expression. The regulations also prohibit employers from requiring individuals to provide proof of sex, gender, gender identity or gender expression. Employers who have affirmative action reporting or recordkeeping requirements, such as EEO-1 reports, may request applicants to self-identify but only on a voluntary basis.
You must honor an employee’s request to be referred to by a particular name, gender or pronoun, including gender-neutral pronouns. You can use the gender or legal name that appears on an employee’s government-issued identification document only if necessary to meet a legally-mandated obligation.
Gender specific dress codes are discriminatory in most cases. Also, employees can dress consistent with their gender identity/expression. If you think a business necessity requires you to institute a gender specific dress code, talk to an attorney.
The regulations also address how employees may use employers’ facilities, including restrooms. You must provide all employees with safe, comparable and adequate facilities without regard to the sex of employees. An employee must be allowed to use the facility that corresponds to the employee’s gender identity or gender expression. You cannot require an employee to use a particular facility, such as a unisex or single-user restroom.
You can find more information in the HR Library’s Gender Identity and Expression Protections section.
3. New Notice Regarding Victim Leave Rights
If you have 25 or more employees, you now must provide new employees with a written notice about the rights of victims of domestic violence, sexual assault and stalking to take protected time off for medical treatment or legal proceedings. The notice also contains information on victims’ rights to accommodation and protections against discrimination.
The Labor Commissioner developed this form, which can be found in both English and Spanish.
Employers must provide this information to:
New workers when hired; and
Current workers upon request.
You can find more information in the Domestic Violence, Sexual Assault and Stalking Victims’ Leave section of the HR Library.
4. New Poster and Educational Requirements for Barbering/Cosmetology Industry
Beginning July 1, 2017, any establishment licensed by the Board of Barbering and Cosmetology (BBC) (e.g., hair salons, nail salons, estheticians, etc.) must post a notice regarding workplace rights and wage-and-hour laws. The poster lets workers know that all workers are protected by California’s labor laws, regardless of where the worker was born or whether the worker has papers to work. The poster covers topics such as tips and what is an independent contractor.
The notice must be posted in four languages (English, Spanish, Korean and Vietnamese); it can be found on the Labor Commissioner’s publications website. The notice must be posted in a conspicuous location in clear view of employees where other similar notices are usually posted. The BBC will inspect for compliance with the posting requirement; failing to post the notice will result in a fine.
This new poster is a result of legislation passed last year (AB 2437).
Another new law requires the BBC to provide every licensure applicant with basic labor law education as part of the health and safety curriculum provided at BBC schools (AB 2025). More information on licensing requirements can be found on the BBC website.
You can find more information on Wage and Hour Requirements for Specific Industries in the HR Library.
5. Private School Overtime Changes
A new law passed last year changes the salary test that private school employees must meet before they can be classified as exempt employees. Private school teachers in California were previously required to earn two times the state minimum wage to be exempt from overtime. Effective July 1, 2017, private school employees need to meet a new minimum earnings test that will look at the comparable salaries offered to public school teachers in the school district or county, rather than the state minimum wage.
To qualify as exempt under the new minimum earnings standard, the employee must earn the greater of: (1) no less than the lowest salary offered by any school district; or (2) the equivalent of no less than 70 percent of the lowest schedule salary offered by the school district or county in which the private school is located.
Schools need to obtain public school salary information to determine the minimum salary threshold.
You can find more information in the HR Library’s Overtime Exceptions for Specific Industries section.