As 2017 kicks off, employers should be aware that a number of new state-wide laws and local ordinances begin taking effect. In this article, we highlight just a few that California’s public employers should now be implementing.
Seeing Green in Twenty-Seventeen: Minimum Wage Increases for California Employees
Regardless of potential changes to Federal wage and hour requirements in the wake of a new presidential administration, California employers are now required to follow the state’s new minimum wage. As of January 1, 2017, the minimum wage for California employees increased to $10.50 per hour. This new wage will apply to all California employers, including the state, political subdivisions of the state, and municipalities, with the following exceptions:
- Employers with 25 or fewer employees. These employers will have until January 1, 2018, to raise wages to $10.50 per hour;
- When increase is temporarily delayed by the Governor for certain specified economic or state budgetary reasons, as certified by the Director of Finance; and potentially
- Counties and charter cities. Legal authority provides strong arguments to counties and charter cities that they are not covered by state minimum wage. This is based on those agencies’ constitutional authority to set employee compensation. (In some limited instances, a matter of statewide concern can potentially supersede a county’s or charter city’s ability to set compensation for its employees.)
As reported in our 2016 Legislative Roundup, the state minimum wage will continue to increase every year, until it reaches $15.00 per hour. After that, the state minimum wage will be adjusted annually based on a consumer pricing index.
Stick to the Basics! State Employers Cannot Exceed Federal Law Requirements to Verify Employment Eligibility.
Federal law requires employers to verify the employment eligibility of their employees through the use of a Federal I-9 form. As part of that process, employees are required to present documentation affirming their identity and employment authorization. However, employees must only present either a document listed as acceptable under “List A” of the form, or by presenting one document from “List B” and one document from “List C.” Employees have the discretion to choose which combination of documents to provide.
New state legislation, codified at Labor Code section 1019.1, prohibits California employers from requesting more or different immigration status documents than those required by federal law. Employers are also prohibited from refusing to honor documents that on their face reasonably appear to be genuine. Moreover, they cannot refuse to honor documents or work authorization based upon the specific status or term of status that accompanies the authorization to work. For example, a person could be authorized to work, even temporarily, based on a pending application for asylum, student status, a familial relationship, or for many other reasons. Under the law, employers cannot give preference to hiring a person because that person is authorized to work based on a familial relationship rather than a pending asylum application. In short, if an employee is authorized to work, employers must consider the authorization sufficient.
Employers are also prohibited from attempting to reinvestigate or re-verify an incumbent employee’s authorization to work. An employer who violates these new prohibitions may be assessed a $10,000 penalty – per violation – and may be liable for equitable relief (e.g. back pay).
Violating Labor Code section 1019.1 may additionally constitute, and/or support, claims of unlawful discrimination.
Voting “No” on Sexual Harassment: Elected Officials to Receive Training to Prevent Sexual Harassment
AB 1825, meet AB 1661. When perpetrated by an appointed official, elected Mayor, or Local Agency Commissioner, sexual harassment is not only offensive and unwelcome, but often also results in humiliation and bad press for everyone involved, including the target/victims of the conduct. Moreover, when the member of a legislative body engages in sexually harassing conduct, such conduct appears “tolerated,” if not encouraged by the agency at large.
Effective January 1, 2017, all members of local agency legislative bodies and elected local agency officials (collectively referred to as “local agency officials”) must receive sexual harassment prevention and education training if the agency provides “any type of compensation, salary, or stipend” to any of its officials. Like agency supervisors subject to AB 1825, local agency officials are required to receive the training within the first six months of taking office and, at least, every two years thereafter. Even before local officials assume their new positions, agencies are required to provide them with written recommendations as to courses that will meet the training requirements.
Agencies must also retain records of the dates local officials satisfy training requirements and of the entity that provided the training. They must keep such records for at least five years following the training. These records will be subject to disclosure under the Public Records Act.
If your agency already requires appointed and elected officials to complete AB 1825 training (within six months of taking office and every two years thereafter), the agency should already be well on the way to compliance with AB 1661.
Public Records Act Request? Visit Us Online! – Public Agencies Can Now Direct Individuals to Website Information Responsive to a Public Records Act Request
Effective January 1, 2017, public agencies are allowed to direct individuals who request public documents to such records posted on the agency’s website. If the documents are not posted to the agency’s website, it may add them in response to the request, and direct the responder to the site. An agency will only then be required to provide the requestor with a copy of the records if the requestor is unable to access or reproduce the records from the website directly. In such cases, public agencies will be allowed to request payment of fees covering direct costs of duplication, or a statutory fee, if applicable.
As a number of public agencies have been in the practice of maintaining public documents online, this updated provision should provide some relief in time and resources spent responding to PRA requests.
Gender-Neutral Relief! Law Requires Equal Access to Single Occupancy Restrooms.
Gone (I hope) are the days of long lines outside of the single-occupancy, female-designated restroom, while a male-designated restroom remains empty. The “should we, or shouldn’t we?” question of those who have considered defying gender-based bathroom signage in years past is now answered by law – yes, you should! While gender-based bathroom wars wage on in other states, California further ensures that restrooms be made available for all people, regardless of gender. Starting March 1, 2017, any “single-user” toilet facilities maintained by a business establishment, place of public accommodation, state or local government agency, must be identified as “all-gender” toilet facilities, with compliant signage. Such facilities must be designated for use by no more than one occupant at a time or for family or assisted use.
In addition to complying with state law, be sure to consult local ordinances for appropriate restroom designations. Some cities, such as San Francisco, also have gender-neutral restroom requirements, which may include additional direction or recommendations for appropriate signage.
Mind the Wage-Gap: Prior Salary Cannot be Used to Justify a Disparity in Compensation
As of 2016, California Labor Code section 1197.5 was amended to prohibit employers from paying an employee wage rates less than rates paid to employees of the opposite sex for “substantially similar work.” (Previously, the statute referred to “equal work.”) This amendment meant a mere title differential was not sufficient reason to pay a female employee less than a male colleague or predecessor, if, in fact, the work she performs is substantially similar in nature.
Continuing its efforts to reduce discriminatory wage gaps, the California legislature has again amended section 1197.5. Effective January 1, 2017, Labor Code section 1197.5 codifies existing law and specifies that a person’s prior salary cannot, by itself, justify a disparity in compensation based upon sex, ethnicity, or race. The legislature enacted this change, finding that pay based on prior salary to set pay rates contributes to gender, race, and ethnicity-based wage gaps by perpetuating wage inequalities. Accordingly, California employers should immediately scrutinize practices in which they ask employees what they were paid in prior positions.
For more about new laws effective this New Year, check out LCW’s 2016 Legislative Roundup.
Erin Kunze, Attorney in the San Francisco office of Liebert Cassidy Whitmore, provides representation and legal counsel to clients on a variety of employment and education law matters. She can be reached at ekunze@lcw.wpxnew.riefmedia.com.
This article was originally published in the Municipal Management Association of Northern California (MMANC) Municipal Magazine (January 2017)
