The California Legislature has passed the following labor and employment bills, which will become law effective January 2018.
PRIOR SALARY AND PRIOR CONVICTIONS
Salary History Information
AB 168 prohibits employers from asking job applicants for “salary history information,” which includes both compensation and benefits. But where an applicant “voluntarily and without prompting” discloses salary history information, the employer may rely upon the information in setting the applicant’s starting salary. As a result, questions about prior salary may not be asked in job applications or interviews by an employer or an agent of the employer.
Additionally, AB 168 requires employers to provide the pay scale for a position if the applicant requests it. This bill makes California the first jurisdiction in the country to require that employers provide applicants with the pay scale for a position, upon “reasonable request.”
This bill applies to employers, both private and public, and will become effective January 1, 2018.
California’s State-Wide “Ban-the-Box” Law
The California Fair Employment and Housing Act (FEHA) prohibits state and local agencies from asking an applicant to disclose conviction information until the applicant is determined to be qualified for the position. This is also known as a “ban the box” regulation, where the “box” refers to a question such as the following on a job application: “Check here if you have ever been convicted of a crime in a court of law.” Nationwide, over 100 cities and counties in 19 states have adopted what is widely known as “ban the box.” This way, employers will be able to consider a job candidate’s qualifications first, without the stigma of a conviction record.
AB 1008 amends FEHA by making it unlawful for an employer with 5 or more employees to include on an application for employment any question seeking disclosure of an applicant’s criminal history. Employers may not ask or consider conviction history until the applicant has received a conditional offer. They also may not consider, distribute, or disseminate information related to prior arrests, diversions, and convictions when conducting a criminal history background check.
The bill also requires an employer who intends to deny an applicant a position based solely or in part on the applicant’s conviction history to make an individualized assessment of the relationship between the conviction history and the specific duties of the job. The employer may decide to put the individualized assessment in writing, but it should consider the following factors:
- the nature and gravity of the offense or conduct,
- the time that has passed since the offense or conduct and completion of the sentence, and
- the nature of the job held or sought.
If an employer makes a preliminary decision not to hire based on the applicant’s conviction history, the employer must provide a written notification of the decision containing specific information, including an explanation of the applicant’s right to respond. The notification must contain the following:
- notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer;
- a copy of the conviction history report, if any; and
- an explanation of the applicant’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final and the deadline by which to respond.
The applicant has five business days to dispute the accuracy of the conviction history and may provide additional information. Employers are required to consider the information submitted by the applicant before making a final decision.
If in the end the employer decides not to hire the applicant based on the conviction history, the employer must notify the applicant of this in writing. It must also include notification of any existing procedures to challenge the decision with the employer and the right to file a complaint with the Department of Fair Employment and Housing (DFEH). An applicant may sue for the full range of FEHA damages available, including compensatory damages, attorney’s fees, and costs.
This bill will become effective January 1, 2018.
NEW PARENTAL LEAVE ACT
Under the California Family Rights Act (CRFA), it is unlawful for an employer to refuse to grant an eligible employee up to 12 workweeks of unpaid protected leave during at 12-month period due to (1) a child’s birth, adoption, or foster care placement with an employee; (2) caring for the employee’s parent or spouse with a serious health condition; or (3) because the employee is suffering from a serious health condition preventing performance of the job.
SB 63 extends CFRA by requiring an employer to allow an employee with more than 12 months of service with the employer, who has at least 1,250 hours of service with the employer during the previous 12-month period, and who works at a location employing at least 20 employees within 75 miles, to take up to 12 weeks of parental leave to bond with a new child within one year of the child’s birth, adoption, or foster care placement.
Employers may not refuse to hire, discharge, fine, suspend, expel or discriminate against an individual for exercising the right to parental leave under this bill. Employers are also prohibited from interfering with the exercise of these rights. Beginning January 1, 2018 and ending January 1, 2020, the DFEH, after receiving funding from the Legislature, will create a parental leave mediation pilot program under which an employer may request all parties to participate in mediation within 60 days of receiving a right-to-sue notice.
EXPANDED TRAINING REQUIREMENTS
Gender identity, gender expression and sexual orientation
Since 2005, AB 1825 has required employers with 50 or more employees to provide Harassment Awareness Training to educate employees about the negative consequences of workplace harassment. In recent years, the training has expanded to address abusive conduct in the work sphere. SB 396 will further expand the scope of this required training to include a component on harassment involving gender identity, gender expression and sexual orientation. Additionally, the new bill mandates that employers with five or more employees post a Department of Fair Employment and Housing-approved poster regarding transgender rights “in a prominent and accessible location” in the workplace.
LIMITING THE REACH OF IMMIGRATION ENFORCEMENT AGENTS
AB 450 limits the reach of federal immigration officials by prohibiting public and private employers from granting voluntary consent to an employer’s employee records without judicial approval. Employers are also prohibited from granting access to federal immigration officials to enter nonpublic areas of an employer’s workplace without a warrant. The bill also requires employers to provide a current employee notice of an immigration agency inspection of I-9 Employment Verification within 72 hours of receiving federal notice of the inspection.
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*This article is for informational purposes only, and does not constitute legal advice or create an attorney-client relationship. This article does not make any guarantees as to the outcome of a particular matter, as each matter has its own set of circumstances and must be evaluated individually by a licensed attorney.