11/29/2017

Ban-the-box law, new leave mandate, other laws take effect Jan. 1


Gov. Jerry Brown on Oct. 14 signed into law Assembly Bill 1008. This statewide “ban-the-box” law generally bars employers with five or more employees from asking an applicant to disclose conviction information until the employer has made a conditional offer of employment. If an employer later decides to revoke the offer based on an individual's criminal history, the employer must undertake a procedure called the “fair chance” process. AB 1008 will take effect Jan. 1, 2018.

Under the new law, an employer is prohibited from “inquiring into or considering” the conviction history of the applicant until after a conditional offer of employment has been made. This means not asking questions about conviction history on an application or during the interview and hiring process until after an offer of employment. This includes not utilizing background checks that reveal criminal conviction history until after an offer is made.

Once the offer has been extended and the criminal history obtained, the employer cannot deny an applicant a position solely or in part because of conviction history until the employer performs an individualized assessment. This assessment must justify denying the applicant the position by linking relevant conviction history with specific job duties of the position sought.

What should employers do now?

Prior to Jan. 1, employers should carefully review their employment applications and hiring processes to ensure compliance with the law — specifically the requirement to not seek or rely on criminal history information until after a conditional offer of employment. For many employers, this will necessitate revising initial employment applications to remove “boxes” or questions that ask applicants to disclose criminal convictions. Employers should also update all documents related to federal and California fair credit reporting act compliance, including updating background check authorization and disclosure forms and adverse action notifications.

CDA Practice Support provides resources, such as the Recruiting Checklist for new employees, to assist members through the hiring process.

Local ban-the-box ordinances not affected

The new state law specifically provides that it does not affect other rights and remedies that an applicant may have under any other law, “including any local ordinance” — like those in San Francisco or Los Angeles.

New leave mandate for small businesses

Beginning Jan. 1, 2018, the New Parent Leave Act (Senate Bill 63) will require employers of 20 to 49 employees to provide an additional 12 weeks of protected baby bonding leave to employees when certain conditions are met. The act allows an employee to bond with a child within one year of the child’s birth, adoption or foster care placement and is in addition to Pregnancy Disability Leave.

The New Parental Leave Act applies to eligible employees who meet all of the following:

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

This leave mandate could result in small-business employers having to provide up to seven months of protected leave for the same employee. It 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 California Family Rights Act.

As with Pregnancy Disability Leave, employers will be required to maintain and pay for coverage under a group health plan for an employee who takes this leave. Employers could face lawsuits for failing to provide the leave, failing to return the employee to the same or comparable position after the leave, failing to maintain benefits while the employee is out on leave or taking adverse employment action against an employee who uses the leave.

What should employers do now?

Practice owners who directly employ over 20 employees within a 75-mile radius may need to draft a compliant leave of absence policy, develop leave of absence forms and procedures and train managers about the requirements of the act, especially with respect to no-retaliation and no-discrimination provisions.

Salary history inquiries prohibited

Also set to take effect Jan. 1 is a ban on salary history inquiries. Gov. Brown on Oct. 12 signed into law AB 168, which prohibits employers from seeking salary history information, including compensation and benefits, for the purpose of determining whether to hire the applicant or how much to pay the applicant. If employers already have that information or an applicant volunteers it, they cannot base a new hire's pay on past earnings.

The new law also requires employers to give applicants pay scale information if they request it. Employers can be assessed a penalty for failing to provide pay scale information upon demand.

What should employers do now?

CDA Practice Support recommends that employers update their employment applications and conduct a market salary survey when determining compensation for each position. CDA Practice Support offers a sample Application for Employment.

New workplace notice, expanded anti-harassment training requirements

Under SB 396, employers with five or more employees must prominently post a transgender rights workplace notice, still in development by the California Department of Fair Employment and Housing at the time of this writing. In addition, employers with 50 or more employees who are already required to provide training within six months of hire or promotion and every two years thereafter must include information on gender identity, gender expression and sexual orientation as part of the training. Such training must be conducted by educators with the knowledge and expertise in these topics and must include practical examples.

Immigrant Worker Protection Act

AB 450, the Immigrant Worker Protection Act, shields workers from immigration enforcement while on the job. Taking effect Jan. 1, 2018, the act prohibits an employer from providing any federal immigration enforcement agent with access to a business unless the agent provides a properly executed warrant or subpoena. The employer is also prohibited from providing the agent voluntary access to the employee’s records without a subpoena or warrant.

Employers are required under this law to notify all current employees when a Form I-9 Employment Eligibility Verification inspection was performed by federal immigration enforcement officials, as well as provide notice of the results of the inspection to each affected employee and authorized representative.

Violation of the provisions of the law carries stiff fines ranging from $2,000 to $5,000 for a first violation and $5,000 to $10,000 for each subsequent violation.

CDA Practice Support resources can help members comply with these new laws. Find a sample Application for Employment, Recruiting Checklist for new employees and more at cda.org/practicesupport.



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