On October 12, 2017, Governor Brown signed Assembly Bill 168.  Consistent with some other state laws and local ordinances passed by certain municipalities like San Francisco, the new law prohibits the inquiry and use of prior salary information except in limited situations.  The new law will be contained in Labor Code section 432.3 and becomes effective January 1, 2018.

The new law:

  • Prohibits an employer from relying on the salary history information of an applicant for employment as a factor in determining whether to offer an applicant employment or what salary to offer an applicant.
  • Prohibits an employer from seeking salary history information about an applicant for employment.
  • Requires an employer, upon reasonable request, to provide the pay scale for a position to an applicant for employment.

The new law does not prohibit:

  • An applicant from voluntarily (without prompting) disclosing salary history information.
  • An employer from considering or relying on voluntarily disclosed salary history information in determining salary, as specified.

The law applies to all employers, including state and local government employers and the Legislature.  However, it does not apply to salary history information disclosable to the public pursuant to federal or state law.

California employers should do the following before the January 1, 2018 effective date:

  • Review and update all employment application and hiring materials to ensure there are no questions requiring an applicant to disclose prior salary information.
  • Train all managers, supervisors, human resources, and other individuals involved in the recruitment and hiring process to ensure they are aware of the requirements under the new law.
  • Take other reasonable steps (e.g. periodic audits of hiring and payroll practices) to ensure that they are in compliance with this law and the California Equal Pay Act which requires equal pay for substantially similar work performed by employees of different genders, races, or ethnicities.

The Labor & Employment attorneys at Weintraub Tobin have extensive experience counseling and defending employers in all areas of employment law and are happy to assist employers in auditing their hiring and payroll practices to ensure compliance with California law.  Please feel free to contact partner, Beth West, or any of the other Labor & Employment attorneys.

By Charles L. Post

The U.S. Occupational Safety and Health Administration (U.S. OSHA) has established a new electronic portal for employers to file web based reports of workplace injuries or illnesses.

Read the full article at HRUSA here: http://blog.hrusa.com/blog/us-osha-opens-injury-tracking-electronic-portal/

A Texas federal court struck down a rule that would have expanded those eligible for overtime pay.  The Department of Labor’s rule would have required overtime pay to most salaried employees who earn less than $47,476 annually.  This would have been a dramatic increase from the current salary level of $23,660.  The rule was expected to have an extensive effect if implemented, to the tune of more than 4 million workers.  The same court had blocked the rule from being enforced in November 2016, but had not yet determined whether the rule was valid.  Over 55 business groups challenged the implementation of the rule, and were rewarded in the court’s August 31st ruling finding that the rule exceeded the Department of Labor’s authority.

On August 29, 2017, the Office of Information and Regulatory Affairs (OIRA) issued a memo to the EEOC advising that the Office of Management and Budget (OMB) is initiating a review and an immediate stay of the effectiveness of those aspects of the EEO-1 form that were revised on September 29, 2016. Those  revisions included new requirements for employers with 100 or more employees (and for employers who are federal contractors with 50 or more employees) to provide data on the wages and hours worked by their employees. The OIRA’s memo made clear that the EEOC may continue to use the previously approved EEO-1 form to collect data from covered employers on the race/ethnicity and gender of their employees during the review and stay period.

The memo explained that, among other things, the OMB is concerned that some aspects of the requirement to collect wage and hour information, lack practical utility, are unnecessarily burdensome, and do not adequately address privacy and confidentiality issues.

Following receipt of the OIRA’s memo, the EEOC immediately issued a statement that advised covered employers that the previously approved EEO-1 form which collects data on race, ethnicity and gender by occupational category will remain in effect, and that “[e]mployers should plan to comply with the earlier approved EEO-1 (Component 1) by the previously set filing date of March 2018.”  Despite this current stay in the requirement to report pay data, the EEOC said that it remains committed to strong enforcement of federal equal pay laws and hopes the OMB’s decision “…will prompt a discussion of other more effective solutions to encourage employers to review their compensation practices to ensure equal pay and close the wage gap.”

The Labor & Employment attorneys at Weintraub Tobin will continue to follow the OMB’s review process and EEO-1 employers should stay tuned for further developments.

Beginning January 1, 2018, a Nevada employee who has been employed for at least 90 days and who is a victim of an act of domestic violence or whose family member or household member is a victim of an act of domestic violence (provided the employee is not the perpetrator), is entitled to a maximum of 160 hours of leave in one 12-month period.

Domestic violence is defined under Nevada Revised Statutes (NRS) 33.018 as follows:

Domestic violence occurs when a person commits one of the following acts against or upon the person’s spouse or former spouse, any other person to whom the person is related by blood or marriage, any other person with whom the person is or was actually residing, any other person with whom the person has had or is having a dating relationship, any other person with whom the person has a child in common, the minor child of any of those persons, the person’s minor child or any other person who has been appointed the custodian or legal guardian for the person’s minor child: (a) A battery; (b) An assault; (c) Compelling the other person by force or threat of force to perform an act from which the other person has the right to refrain or to refrain from an act which the other person has the right to perform; (d) A sexual assault; (e) A knowing, purposeful or reckless course of conduct intended to harass the other person; (f) A false imprisonment; or (g) Unlawful entry of the other person’s residence, or forcible entry against the other person’s will if there is a reasonably foreseeable risk of harm to the other person from the entry.

The new Nevada domestic violence leave law is broader than the Family and Medical Leave Act (FMLA), as it applies to all private employers in the state of Nevada, not just those with at least 50 employees within 75 miles of the worksite. If applicable, the Nevada domestic violence leave must be deducted concurrently from leave permitted under FMLA.

Read the full article at HRUSA here: http://blog.hrusa.com/blog/new-nevada-domestic-violence-leave-law-broader-than-fmla/.