Governor Signs Leave Mandate for Small Business, Ban on Salary History Inquiries

Oct 12 2017 - Compensation, FMLA/CFRA - HRWatchdog

New for 2018

New for 2018

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

SB 63 (Jackson; D-Santa Barbara) was identified by the California Chamber of Commerce as a job killer.

Also signed today was AB 168 (Eggman; D-Stockton), which bans employers from inquiring about a job applicant’s salary history.

Both bills take effect on January 1, 2018.

SB 63 will require employers to provide 12 weeks of baby bonding leave to employees in addition to the myriad of other leaves of absence programs California already imposes. This bill affects small employers with as few as 20 employees and applies to those employees who:

  • Worked more than 12 months;
  • 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.

Combined with other protected leaves, the bill could result in small employers having to provide up to seven months of protected leave for the same employee. This bill will have the greatest impact on employers with 20 to 49 employees who are not already required to provide family leave under the federal Family and Medical Leave Act or the state California Family Rights Act.

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.

Under AB 168 employers are banned from asking 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 be penalized for failing to provide a pay scale for the position upon demand.

Any violations of the provisions in AB 168 carries a huge threat of costly litigation under the Labor Code Private Attorneys General Act (PAGA).

CalChamber will provide information, including a November webinar, to members about how to ensure compliance with these new laws and develop appropriate policies for their businesses. Stay tuned for more information.

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