Employment Law

• Publication year: 2017
• Author: By Andrew H. Friedman

Employment Law

By Andrew H. Friedman

California Resists the Trump Administration's Efforts to Curtail Employee Rights

The most notable developments of 2017 are the steps that President Donald J. Trump and his administration have taken to weaken-critics say eviscerate-the rights of employees. In contrast, the California State Legislature, Governor Edmund G. Brown, Jr., and the California courts (both federal or state) continued to, for the most part, expand employee protections.

President Trump's Efforts to Weaken Employee Rights

Immediately upon taking office, President Trump and his administration launched a wide-ranging effort to curtail employee rights and protections in virtually every area impacting the employment relationship-from wage and hour laws to anti-discrimination laws to occupational health and safety laws and regulations to the unionized workplace. In addition, President Trump has reshaped the judiciary by appointing judges whose views on employee rights mirror those of the administration.¹ What follows are just a few examples of the Trump administration's actions to curtail employee rights and protections.

While the Obama administration attempted to bolster employee wages by increasing the salary threshold for the White Collar Exemption from $455/workweek (or $23,660 for a full-year worker) to $913/workweek (or $47,476 for a full-year worker) so that more employees would be eligible for overtime, the Trump administration refused to take action to save or implement this Obama initiative.² Likewise, while the Obama administration sought to benefit lower-wage restaurant employees by establishing a "tip pooling" rule which limited the scenarios in which restaurant employers could force tipped workers to share their gratuities with other employees (including traditionally non-tipped "back of the house" employees and managers and owners), the Trump administration announced plans to undo the Obama-era "tip pooling" rule,³ thereby potentially costing employees upwards of $5.8 billion annually.⁴ Similarly, while the Obama administration took the position that Title VII protects LGBTQ employees, the Trump Justice Department has reversed course and taken the position that those employees are not entitled to Title VII protection.⁵

The Trump Environmental Protection Agency has not only delayed implementation of and argued in favor of repealing an Obama-era OSHA rule designed to protect workers from exposure to harmful silica dust (which is linked to lung cancer, kidney disease, and chronic obstructive pulmonary disease), but is also considering the elimination of rules prohibiting employers from using teenagers to handle dangerous "restricted-use" pesticides, like arsenic and methyl bromide.⁶ The Trump administration has also delayed an Obama-era rule requiring employers to submit workplace injury and illness data for posting online.⁷

[Page 21]

The Trump administration has taken affirmative steps to dramatically curtail the rights of unions and unionized workers. On December 1, 2017, Peter B. Robb, the National Labor Relations Board's new Trump-appointed General Counsel, issued an internal memorandum declaring that he would be rescinding seven "guidance memos" crafted by his Democratic predecessors, that he was freezing worker-friendly reforms, and that he plans to take a much narrower view of worker rights than his predecessors.⁸ Similarly, while President Obama's Solicitor General sided with the unions in Friedrichs v. California Teachers Association⁹ and argued that public-employee fair share fees were legal, President Trump's Solicitor General reversed course, siding against the unions on that precise issue in Janus v. American Federation of State, County, and Municipal Employees.¹⁰

Legislative & Regulatory Update

Unlike 2016, 2017 saw California Governor Brown sign into law relatively few bills addressing employment rights and responsibilities. However, the California Fair Employment and Housing Council issued important new regulations related to transgender identity and expression. Unless noted otherwise, the new legislation became effective January 1, 2018.

Salary History Inquiries Prohibited

AB 168, which adds Section 432.3 to the Labor Code, bars all employers not only from relying on an applicant's salary history information as a factor in determining whether to offer employment to the applicant but also from using salary history to determine what salary to offer the applicant. AB 168 does not prohibit an applicant from voluntarily disclosing salary history information to a prospective employer. And, if an applicant makes such a voluntary disclosure, AB 168 does not prohibit the employer from considering or relying on that voluntarily disclosed salary history information in determining the salary for that applicant.

Expansion of Parental Leave Rights

SB 63, the Parental Leave Act, amends the California Family Rights Act¹¹ to allow employees to take 12 weeks of unpaid leave for new child bonding purposes so long as the employee works at a worksite that employs at least 20 employees within a 75-mile radius. The Parental Leave Act does not require employers to pay any portion of the leave but requires that employees be able to use accrued sick and vacation time. Employees can apply to have a portion of the parental leave paid for through California's Paid Family Leave program.

Labor Code Retaliation and Whistleblowers Claims Strengthened

SB 306 provides a cornucopia of new retaliation-related protections for employees. SB 306 authorizes the Division of Labor Standards Enforcement to investigate an employer-whether or not a complaint has been filed-when, during a wage claim or other investigation, the Labor Commissioner suspects retaliation. The bill will also allow the Labor Commissioner or an employee to seek injunctive relief (requesting that the employee be reinstated pending resolution of the claim) upon the mere finding of "reasonable cause" that a violation of the law has occurred.

New Harassment Training Requirements

The California Fair Employment and Housing Act requires employers with 50 or more employees to provide at least 2 hours of specified training and education regarding sexual harassment to all supervisory employees within 6 months of their assumption of a supervisory position and once every 2 years thereafter.¹² SB 396 mandates that when employers conduct this training, they must include information on gender identity, gender expression, and sexual orientation.

[Page 22]

Expansion of Service Members' Rights

AB 1710 conforms state law to the federal Uniformed Services Employment and Reemployment Rights Act of 1994¹³ by protecting service members from hostile work environments in their civilian jobs.

Ban the Box

On October 10, 2013, Governor Brown signed AB 218 into law and thereby prohibited public employers from asking applicants to disclose information regarding a criminal conviction (with some limited exceptions), until after the employer determined that the applicant meets the minimum employment qualifications for the position. On October 14, 2017, Governor Brown signed AB 1008 into law extending this prohibition to all employers in California with five or more employees.

AB 1008 also prescribes certain steps that employers must take before they can deny a position based on the applicant's conviction history.

Immigration-Related Restrictions

In an effort to thwart expected immigration-related actions by the Trump administration, California enacted strict new laws related to workplace immigration enforcement. Among other things, AB 450 prohibits an employer or other person acting on the employer's behalf from providing voluntary consent to an immigration enforcement agent to enter nonpublic areas of a place of labor unless the agent provides a judicial warrant. Likewise, AB 450 also prohibits an employer or other person acting on the employer's behalf from providing voluntary consent to an immigration enforcement agent to access, review, or obtain the employer's employee records without a subpoena or court order. Moreover, within 72 hours of receiving a Notice of Inspection from a federal immigration agency to inspect I-9 forms or other employment records, employers must post a workplace notice to employees and provide written notice to a collective bargaining representative. And, within 72 hours of receiving an immigration agency notice that provides the results of the I-9 or records inspection, employers must provide such notice to each current employee identified by the inspection results as lacking work authorization or whose work authorization documents have been identified by the agency inspection to have deficiencies with a copy of the notice. Finally, AB 450 prohibits employers from reverifying employment eligibility of a current employee at a time or in a manner not required by federal law.

Human Trafficking Poster

SB 225 amends California Civil Code Section 52.6 to expand the list of business establishments that are required to post a notice that contains information related to slavery and human trafficking. As a result, hotels, motels and bed and breakfast inns will have to now post the notice, in addition to establishments such as adult or sexually oriented businesses, airports, intercity passenger rail or light rail stations and bus stations, emergency rooms within general acute care hospitals, and businesses offering massage or bodywork services for compensation.

New FEHA Transgender Identity and Expression Regulations

In May 2017, the California Fair Employment and Housing Council of the Department of Fair Employment and Housing approved new regulations regarding transgender identity and expression in the workplace, including equal access to use of facilities, such as restrooms or locker rooms.¹⁴ While too comprehensive to fully summarize here, the new regulations, effective July 1, 2017,¹⁵ set forth new policies that employers must implement, including the following:

Restroom...