Three New Laws Provide Greater Challenges for California Employers.

By Posted in - Employment Law on April 1st, 2018

One of the challenges for California employers is the changing landscape of employment law. Each year brings new employment laws or new interpretations to existing laws. Following that tradition, in 2018 California enacted several new laws, and unfortunately this post’s space is not sufficient to comprehensively review each new law. This post however, will address the top three laws impacting employers across many industries: parental leave for small employers, restrictions on questions relating to salary history, and ban-the-box.

Parental Leave for Small Employers
This new leave law applies to employers with 20-49 employees. Employers with 50 or more employees are already covered by the California Family Rights Act (CFRA) and/or the Family Medical Leave Act (FMLA). Now small California employers are required to provide qualified employees with 12 weeks of unpaid leave to bond with a new born baby, adopted child, or foster placement. This leave is protected and an employer must continue the employee on the group health plan. An interesting difference between this new law and CFRA is that an employer may require mediation before an aggrieved employee can file a claim in superior court. This mediation provision, however, has a sunset clause, and will expire, if not renewed, on January 1, 2020.

Employers should revise their handbooks and train their supervisors to comply with the new baby bonding law.

Salary History
Employers have been shushed on salary history. Employers are now prohibited from asking job candidates about their salary history. Upon request, an employer is also required to provide a candidate a copy of the pay scale for the position. Employers are permitted to consider pay history if voluntarily offered by the applicant.

The purpose of this law is to address the residual impact of the gender pay gap – a laudable goal. The challenge is in its execution. The idea is that if female employment candidates have not been paid fairly in the past based on their gender, then asking for a candidate’s salary history, and then basing your offer on that history, perpetuates the historical injustice. Employers should review their application forms, and train their interviewing staff to stay clear of any questions about salary history.

This new law applies to employers with five or more employees. The law earned its name, “Ban the Box”, because it prohibits employers from, among other things, including a section on the application that asks applicants about their criminal history.

Most covered employers are now prohibited from asking applicants about their criminal history, until after the employer provides a conditional offer of employment to the applicant. Once a background check reveals a criminal history, an employer cannot disqualify the candidate until after the employer evaluates how, if at all, the conviction would relate to the job duties. Part of this review would include the nature of the conviction and how long ago the conviction occurred. For example, if an employer was hiring a bookkeeper and if the applicant had been convicted of embezzlement six months ago, it is likely that because the conviction (embezzlement) is sufficiently related to the new job duties (bookkeeper) that the employer could disqualify the candidate and rescind the conditional offer. Consider, however, a different scenario. An employer is hiring for a retail sales associate. The background check reveals a felony DUI from seven years ago. The applicant’s DUI conviction was the result of a car accident in which his passenger was seriously injured. Here, the conviction is less related to the job position and is less likely to serve as a basis to disqualify the applicant.

If an employer evaluates the conviction and determines that the criminal offense disqualifies the candidate, the employer must notify the applicant in writing, provide a copy of the conviction history, and give the applicant five business days to respond. The applicant is entitled to an additional five business days to provide evidence to the employer that the conviction history is not accurate, that the applicant has been rehabilitated, or that there were certain mitigating circumstances surrounding the conviction. If the employer remains firm on its decision to disqualify the candidate then additional notices and information must be provided to the applicant.

Moving forward, covered employers should review their applications to make sure they are not asking for an applicant’s criminal or salary history. Employers should also ensure that personnel who conduct interviews are aware of the law and do not inquire into those areas that are off-limits.

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Karen O’Neil is a principal and chair of Kirk & Simas’ Civil Litigation and Employment Law Department.
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