New employment laws for 2018. If you are an employee who feels that unfair or illegal procedures have impacted your success at the workplace, you are not alone. Studies indicate that across the nation, nearly 12% of businesses experience a legal challenge to business practices at some point; California’s rate is 40% higher than the national average. If you find yourself wondering whether or not your legal rights have been violated on the job, discussing your concerns with a local employment attorney may be helpful.

2018 Rings in New Employment Laws

Several new employment laws went into effect in January that may positively impact employees. A few important ones include:

• AB 1008: This law applies to employers with more than four employees, and deals with the actual application process. Now, questions related to criminal history prior to employment are banned, except for positions where a background check is required by law (such as public education, law enforcement, etc.). After a conditional offer of employment has been made, an employer may investigate an applicant’s criminal history, but cannot refuse employment without first determining that the criminal history would have a direct impact on the performance of job duties, giving the applicant a written explanation of the reason for the rejection, and providing an opportunity for the applicant to contest the decision, providing a second written determination of the final decision not to employ the applicant.

• SB 63: This law, which applies to employers with more than 19 employees, requires eligible workers to be offered as much as 12 weeks of unpaid leave to bond with a new child. Whether the child was adopted, is a foster child, or is a newborn to the employee, this leave is now available. While on leave, employers are required to pay for health care coverage under any group plan. Following the leave, the employee is guaranteed an equivalent position back in the company.

• SB 179: Residents of the state may now choose one of three options to identify their gender on state I.D. cards and birth certificates: male, female, or nonbinary. (The same will apply to driver’s licenses in 2019). Changing one’s gender on other legal documents is now much easier, as well.

• AB 46: Public employers are now required to provide the same protections offered through California’s Fair Pay Act (against gender, race, and ethnicity discrimination) that private employers have been held to for years.

• SB 396: Covered employers must now include information about harassment related to sexual orientation and gender identity and expression in their required sexual harassment trainings.

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Employer errors to avoid. Employment laws are written to ensure the safety and fair treatment of everyone in the workplace. When employers fudge their policies, it can open them up to potential lawsuits, and experienced legal assistance will be needed. Here are some key errors every employer should avoid:

• Improper employee classification: Just because an employer wants to list everyone as exempt, it does not make them so. Only high-level administrators or professionals generally qualify for this classification; everyone else is entitled to rest and meal breaks, as well as overtime pay. Failure to pay overtime is a key issue that lands employers in court.
• Independent contractor classification errors: Not anyone can be an independent contractor.  This classification is determined based on who holds the decision-making power as to how the work is performed. Additionally, consideration is given to the degree to which the person’s work is integral to the daily business of the company. Someone who paints the office is an independent contractor. Someone who contributes to the product your company sells is an employee.
• Neglecting to train supervisors about harassment or discrimination: If you have 50+ employees, there is a legal requirement to provide sexual harassment training every two years.  Even if you have fewer employees, providing such training reduces your exposure in the event of a lawsuit.
• Terminating employees who take leaves of absence: Employers are legally required to provide leave for a number of life events, including military leave, pregnancy, family and medical leave, disability, and others. Employees are entitled to return to their positions, or an equivalent position, following leave.
• Insisting on non-compete agreements: Sorry, these are prohibited in California, except in very limited circumstances. You cannot force someone to stay with your company or restrict their ability to work elsewhere.
• Eliminating vacation days that are not used: Employees in California are allowed to accrue vacation days with the expectation that they will be paid out at the time of termination at the current salary rate. Although accrual may be reasonably limited, it cannot be eliminated altogether.
• Deducting unauthorized amounts from paychecks: California law provides for withholding taxes, insurance, wage garnishments, child support orders, and other specific items. It is unlawful to require loan repayments to the company through deductions.
• Withholding a paycheck if an employee has not returned company property: Let us say an employee is terminated, yet still has possession of company property such as a cellphone, tools, or other items. Employers are not justified in hanging onto that employee’s final check.  California law requires a final check to be available within 72 hours of termination. You will have to pursue the return of your property in another way.

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