A Guide to California’s Latest #MeToo Laws

for Employers

California recently enacted a barrage of new anti-discrimination laws that will take effect at various times between 2019 and 2021. Employers ranging from 10-employee shops to large, publicly-traded corporations should take notice, as these laws will affect nearly every business.

Talking to Job Applicants About Pay

In January 2018, AB 168 took effect and forbade employers from asking job applicants about their past salaries or wages. It also required employers to provide pay scales “upon request” to applicants. The ostensible goal of this law, codified as Labor Code section 432.3, was intended to halt gender-based pay disparities that arose when employers based pay for new applicants on their previous salaries. However, it failed to define key terms and contained several ambiguities.

AB 2282, effective as of January 1, 2019, clarifies at least some of the questions the previous law raised.

One of the most significant criticisms of the AB 168 was that it made no distinction between brand-new applicants and current-employee applicants. The California Equal Pay Act now explicitly allows employers to consider a current employee’s wage or salary with the company in deciding how much to pay them for a new internal position.

Another source of confusion with AB 168 was that it required employers to disclose their “pay scale” to applicants “upon reasonable request.” Yet the law failed to define “pay scale” as well as “reasonable request,” leaving many employers frustrated. With the recent amendment, these ambiguities were fixed. “Pay scale” was defined to mean a range – either for salary or for an hourly wage. And “reasonable requests” were defined as requests applicants could make only after they had completed an initial interview.

But, the most important amendment under AB 2282 was that employers were allowed to ask an applicant for their “salary expectations”.

Forbidden Confidentiality, Non-Disparagement, and Waiver Agreements

As of January 1, 2019, new Civil Procedure Code prohibits employers from including a requirement that forces employees to keep facts confidential in settlements of sexual harassment and discrimination cases. Nevertheless, settlements may still forbid the employee from disclosing the amount paid, as well as forbid the employer from disclosing the plaintiff-employee’s name, if he or she chooses to remain anonymous.

However, a different law allows settlements of other (non-sexual) discrimination cases to include confidentiality provisions. SB 1300 prevents employers from requiring employees to sign “non-disparagement” agreements that prevent disclosure of any harassment or discrimination (e.g., based on race, gender, age) as a condition of employment, raises, or bonuses. Yet this law specifically allows settlements of discrimination claims to include such non-disparagement clauses.

Small Employers’ Harassment Training Requirements

In previous years, only companies with 50 or more employees were required to provide harassment training. Now, however, employers with only 5 or more employees must comply, providing 2 hours’ training to supervisors and 1 hour of training to all other employees within the first 6 months of their hire. This initial round of training must be completed by January 1, 2020, and must be repeated every 2 years.

If you have any questions about your company’s legal requirements for harassment training, or regarding your compliance with any of these other new laws, our experienced employment attorneys are available to assist.

Boards of Directors: Quotas for Women

Perhaps the most publicized women’s rights law for 2019 is SB 826, which gives publicly-traded companies until December 31, 2019 to add at least one woman to their boards of directors. The requirements will then increase based upon the total number of board members by the second deadline of December 31, 2021. This law is the first of its kind in the country, and while some companies have applauded the measure as it tracks with their own diversity efforts, others have opposed it as a needless imposition of quotas on companies who should be free to select whichever directors they choose.

If your business faces unexpected challenges these new discrimination-related laws taking effect this year, our firm’s expert employment lawyers can work with you to ensure you are in compliance.

Whether you are just starting a brand new company, run a “mom & pop” business, or already have a large established corporate enterprise, we are here to grow with you and meet your legal needs.

Evaluate Your Business

Cindy Flynn