California Employment and Labor Law Updates

Hey readers, welcome back!

Just recently California passed laws that will affect employee handbooks, job applications, and the state’s obligatory harassment aversion training starting in January 2018, making it reasonable for organizations and companies to overhaul their procedures and policies before the new laws are taken into affect.

The following updates are necessary for compliance and to stay away from potential liability starting January 1, 2018:

  • Employers must get rid of questions with respect to criminal background and compensation history from work applications, update hiring practices to make sure no impermissible questions are asked during an interview, develop pay scales for advertised positions to disclose upon request, and train human resources on the new notice requirements in the event an offer needs to be rescinded based on an applicant’s criminal history.
  • Employers with employees who work at a worksite in which the employer employs at least 20 but not more than 49 employees within 75 miles should update their employee handbooks with a parental leave policy for new parents to bond with their children and update any internal leave of absence practices and forms.
  • Employers must post the Department of Fair Employment and Housing’s (“DFEH”) new poster regarding transgender rights in the workplace. Also, when providing the required sexual harassment prevention training for supervisors, employers must now include training and specific examples of harassment based on gender identity, gender expression, and sexual orientation.

More Details:

AB 1008 (Ban the Box) – This law makes it illegal for employers to: (1) incorporate questions on an application that look for a candidate’s conviction history before making a conditional offer of work; (2) ask into or consider conviction history before a conditional offer has been made; (3) consider, distribute, or spread data around a candidate’s capture that was not trailed by a conviction, referral to or participation in a pretrial or post-trial diversion program, or convictions that have been sealed, dismissed, expunged, or statutorily eradicated; or (4) meddle with any right provided by this law.

The law additionally expects employers to make strides before denying a position in light of the candidate’s conviction history. In particular, the business should first make an individualized assessment of whether the candidate’s conviction history has an immediate and unfavorable association with the particular obligations of the activity to legitimize denying the position. Employers must consider the majority of the accompanying variables: (1) the nature and gravity of the offense or lead; (2) the time that has gone since the offense or conduct and completion of the sentence; and (3) the nature of the activity held or looked for. The evaluation might be recorded in composing, however it isn’t required by the law.

In the event that the business settles on a preliminary choice that the candidate’s conviction history disqualifies the candidate from work, the business must let the applicant know in writing. The notification can, however isn’t required to, legitimize or clarify the business’ thinking for its choice. The notice must contain: (1) notice of the precluding conviction(s) that shaped the premise of the business’ preliminary choice; (2) a copy of the conviction history report (assuming any); and (3) a clarification of the candidate’s right to respond to the notice before the business’ preparatory choice will become final and a deadline (at least five business days) by which to respond. The explanation should likewise inform the candidate that his or her response may incorporate evidence challenging the accuracy of the background check and/or evidence of mitigating circumstances or rehabilitation. On the off chance that the candidate responds five business days in writing that he or she debate the conviction history report’s precision and that the candidate is finding a way to get proof to demonstrate it, at that point the business must give the candidate an extra five business days to respond to the notice. The business must consider any information put together by the candidate before settling on an official decision.

If the employer chooses to deny an application in view of conviction history, the business must tell the candidate in writing of the following: (1) the last refusal or disqualification (the business may, yet isn’t required to, detail reasoning); (2) the business’ procedure for the candidate to challenge the choice or request (on the off chance that one exists); and (3) the right to document a complaint with the DFEH.

AB 168 (Salary History Ban) – This law prohibits employers from (1) soliciting an applicant’s salary history information or (2) relying on it as a factor in determining (a) whether to offer the applicant employment or (b) in setting the salary offer to an applicant. “Salary history information” includes information about the applicant’s prior compensation and benefits. Upon request, an employer must also provide the pay scale for a position to an applicant. The employer may, however, consider or rely on an applicant’s voluntary disclosure of his or her salary history information, although – consistent with California’s Fair Pay Act – employers are still prohibited from using prior salary by itself to justify any pay disparity. (In general, even if the applicant voluntarily discloses such information, it is still quite risky to consider it.)

SB 63 (New Parent Leave) – This law lengthens baby bonding leave under the California Family Rights Act (“CFRA”) to require employers with positions that have between 20 and 49 employees to give eligible workers up to 12 weeks of unpaid leave to bond with a newborn within one year of the babies birth, adoption, or foster care situation. Employees are qualified on the off chance that they have worked with the company over a year, no less than 1,250 hours of service with the business during the past year, and in the event that they work at a worksite in which the business employs no less than 20 employees inside 75 miles. Businesses with worksites that have at least 50 employees inside 75 miles are secured by the CFRA and its baby bonding necessities and are not covered by the New Parent Leave Act.

An employee may take paid time off while on New Parent Leave. The business must proceed with benefits amid the leave however may recoup the cost of premiums if the worker neglects to come back from leave under conditions of their own control. Be that as it may, if a worker qualifies for CFRA leave, the employee isn’t qualified for this leave. New Parent Leave additionally does not cover with Pregnancy Disability Leave and is a different leave. In the event that the two guardians work for a similar business, the entirety of the two guardians’ leave should be 12 weeks. The business may, however isn’t required to, enable the two workers to be on leave in the meantime. Employers must, on or before the commencement of this parental leave, give a guarantee of employment in the same or a similar position upon the termination of the leave, or the employer shall be deemed to have refused to allow the leave.

Until January 1, 2020, within 60 days of a right-to-sue notice from the DFEH, the business has the chance to request that all parties participate in the department’s Mediation Division Program. In the event that a business demands mediation within 60 days of notice of a right-to-sue see, an employee might not seek after any civil action under this section until the mediation is complete.

SB 396 (Harassment Prevention) – The Fair Employment and Housing Act (“FEHA”) presently requires employers with at least 50 employees to direct mandatory sexual harassment prevention training to supervisors and managers to post a DFEH-issued poster explaining the prohibitions on discrimination and harassment in the workplace. This new law additionally expects bosses to post a DFEH created notice with respect to transgender rights in a conspicuous and open area in the work environment. The law additionally requires that businesses update their mandatory sexual harassment prevention training to include a section on harassment based on gender identity, gender expression, and sexual orientation. The training must incorporate reasonable examples of such harassment and be presented by trainers or educators with knowledge and expertise in those areas.