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New Leave of Absence and Salary Information Laws

On October 12, 2017, Governor Edmund G. Brown Jr. signed legislation mandating that small businesses provide a new, protected leave of absence (SB 63), and a second piece of legislation, which bans employers from inquiring about a job applicant’s salary history (AB 168). Both bills take effect on January 1, 2018.

SB 63 will require employers to provide 12 weeks of baby bonding leave to employees in addition to the myriad of other leaves of absence programs California already imposes. This bill affects small employers with as few as 20 employees and applies to those employees who:

  • Worked more than 12 months;
  • Worked at least 1,250 hours of service during the prior 12-month period; and
  • Work at a worksite where there are at least 20 employees within a 75-mile radius.

Combined with other protected leaves, the bill will result in small employers having to provide up to seven months of protected leave for the same employee. This bill will have the greatest impact on employers with 20 to 49 employees who are not already required to provide family leave under the federal Family and Medical Leave Act or the state California Family Rights Act.

SB 63 also prohibits an employer from refusing to maintain and pay for coverage under a group health plan for an employee who takes this leave. Additionally, the bill carries the threat of litigation for employers.

SB 63 labels an employer’s failure to provide a requested leave as an “unlawful employment practice.” The employer is subject to a lawsuit should the employee allege that his or her employer:

  • Did not provide the 12 weeks of protected leave;
  • Failed to return the employee to the same or comparable position;
  • Failed to maintain benefits while the employee was out on leave; or
  • Took any adverse employment action against the employee for taking the leave.

Under AB 168 employers are banned from asking about a job applicant’s salary history and from relying on salary history information as a factor in determining what salary to offer an applicant. An employer can be penalized for failing to provide a pay scale for the position upon demand. Any violations of the provisions in AB 168 carries the threat of costly litigation under the Labor Code Private Attorneys General Act (PAGA).

Be safe out there.

By Pascal Anastasi, Esq.

Chamber Board Member & Past President

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