Governor Brown Has Signed ‘Ban the Box’ Legislation into Law for California

Effective January 1, 2018, California will be the next jurisdiction to implement statewide “ban the box” legislation.  On October 14, 2017, Governor Jerry Brown signed into law Assembly Bill 1008, which prohibits pre-offer inquiries regarding applicants’ conviction histories and regulates employers in their decisions to deny employment to an applicant based on his/her conviction history.  For more details regarding this important law, please see our earlier post. 

Employers should review their employment applications and hiring processes in light of this upcoming change in the law.  Please contact your Jackson Lewis attorney to discuss these developments and your specific organizational needs.

Governor Signs Bill Prohibiting Employers From Asking Applicants About Prior Salary History

On October 12, 2017, Governor Brown signed a new law which expands California’s fair pay laws in front of the Women’s Empowerment Group in Sacramento, California. Jackson Lewis previously discussed some of these proposed laws at the Pay Equity Advisor Blog. Specifically, AB 168 added Labor Code 432.2 which generally requires all employers, of any size, to adhere to these new rules:

  • Cannot ask for prior salary information. An employer shall not, orally or in writing, ask for or seek salary history information, including compensation and benefits, about an applicant for employment.
  • Cannot use prior salary information to set wage rates for applicants. An employer shall not rely on the salary history information of an applicant for employment as a factor in determining whether to offer employment to an applicant or what salary to offer an applicant.
  • Must provide pay scale for position. Upon request, an employer shall provide the pay scale for a position to an applicant applying for employment.
  • The new law does not apply to salary history information disclosable to the public pursuant to federal or state law.

There are also some other unique provisions. The new law does not prohibit an applicant from voluntarily disclosing salary history information to a prospective employer. If an applicant voluntarily and, without prompting, discloses salary history information to a prospective employer, the law does not prohibit that employer from considering the voluntarily disclosed salary history information. However, the new law does remind employers that, even with voluntary disclosure by an applicant, the employer must still be mindful of Labor Code 1197.5. This section was amended last year to clarify the prior salary history, by itself, cannot be used to justify any disparity in compensation.

The new law is effective January 1, 2018.  The law will have a significant practical impact for employers. Employers will likely need to move to update employment applications to remove questions regarding prior salary history or wage rates. Individuals who conduct hiring interviews of applicants should be trained on the new law. Employers should consider establishing pay grades for each position based on lawful, non-discriminatory factors and be prepared to respond to applicants who request the pay scale for a position. California continues to be on the forefront of fair pay legislation.

Please feel free to contact the Jackson Lewis attorney you normally work with or Jonathan Siegel at siegelj@jacksonlewis.com

Governor Approves Expanding Parental Leave to Small Employers

On October 12, 2017, Governor Brown approved a new law that will expand parental leave benefits to employers with 20 or more employees. The new law will take effect on January 1, 2018.

Currently, employers with 50 or more employees are required to grant up to 12-weeks of unpaid leave to eligible employees who request leave to bond with a newborn child or with a child placed in the employee’s home for foster care or adoption. To be eligible for leave, the employee must have worked for the employer for at least 12 months (which do not need to be consecutive), worked at least 1,250 hours in the 12-month period preceding the use of leave, and work at a worksite with 50 or more employees in a 75-mile radius.

Under the new law, employers with 20 or more employees will be required to grant up to 12-weeks of unpaid leave to eligible employees for bonding purposes. An eligible employee is one who has worked for the employer for at least 12 months, worked at least 1,250 hours in the 12-month period preceding the use of leave, and who works at a worksite with 20 or more employees in a 75-mile radius.  More information about this leave expansion can be found here.

Jackson Lewis Statement in Response to University of San Diego Law School Professor’s Op-Ed

As an on-campus recruiter and scholarship donor at the University of San Diego School of Law, Jackson Lewis P.C. issues this statement in light of the ongoing debate surrounding Professors Lawrence Alexander and Amy Wax’s op-ed, “Paying the Price for the Breakdown of the Country’s Bourgeois Culture.” While acknowledging the importance of scholarly debate and freedom of expression, we take this opportunity to reaffirm our commitment to diversity and inclusion. Intolerance of other cultures is incompatible with Jackson Lewis’ values, which center on our respect for people of diverse backgrounds, cultures and ideologies.

As a national leader in hiring and retaining a diverse workforce, Jackson Lewis is proud that over fifty percent of our attorneys identify as members of one or more diverse groups. In striving to always do more, Jackson Lewis’ Diversity & Inclusion Committee is presently exploring new initiatives to further support highly talented individuals from underrepresented groups within the Firm, in the legal profession, business workforce and the community-at-large. We are supported in these efforts by our clients, who are engaged in such initiatives as CEO Action for Diversity and Inclusion.

Jackson Lewis extends its support to the University of San Diego and all its students and pledges to continue honoring our commitment to nurturing diversity and inclusion, both in our partnership with the University and as an employer in the San Diego community.

VINCENT A. CINO, JACKSON LEWIS P.C.

 

California Joining the Ban the Box Bandwagon?

California may be the next jurisdiction to implement statewide “ban the box” legislation. Assembly Bill 1008 made its way from the Assembly through the Senate, and now awaits action from Governor Jerry Brown.

Prohibition Against Pre-Offer Inquiries Regarding Applicants’ Conviction History

The bill would make it unlawful under California’s Fair Employment and Housing Act (“FEHA”) for an employer with five or more employees to inquire about or consider an applicant’s conviction history until the applicant has received a conditional offer of employment. Under the bill, an employer would be prohibited from:

  • Including on any employment application a question that sought disclosure of an applicant’s conviction history;
  • Inquiring into or considering the conviction history of the applicant, until after the employer has made a conditional offer of employment; and
  • Considering, distributing, or disseminating information relating to arrests that do not result in a conviction, diversion programs, or convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.

Process for Making Adverse Employment Decisions

Further, the bill regulates employers in their decisions to deny employment to an applicant based on his/her conviction history. If an employer intends to deny an applicant a position based entirely or partially on the applicant’s conviction history, it is required to complete an individualized assessment which analyzes the relationship between the conviction and specific duties of the position.  The applicant’s conviction history must bear directly and adversely on specific duties of the position such that denial of the position is justified.  The bill provides that as part of an individualized assessment, the employer must consider all of the following:

  • 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.

If after conducting an individualized assessment, the employer believes that the applicant’s conviction history disqualifies the applicant from the position, the employer is required to provide written notice of the employer’s preliminary decision to the applicant. Although not required, an employer may provide an explanation of its reasoning.  The notice must contain a copy of the conviction report, if any, and specified language which informs the applicant of the right to respond before the employer’s decision becomes final.

Before making a final decision, an employer must provide the employee at least five days to respond to the preliminary decision. If the applicant notifies the employer that he/she disputes the accuracy of the of the criminal history report and is taking steps to obtain evidence to support that assertion, then the applicant has five additional business days to respond.  The employer is required to consider information submitted by the applicant during this time period in reaching its final determination.

If an employer makes a final decision to deny an applicant a position for any reason related to the applicant’s conviction history (after engaging in individualized assessment, informing the applicant of its preliminary decision, and providing due time and consideration of an applicant’s response), the employer must provide written notice to the employee. The notice must include the following information:

  • Final denial or disqualification;
  • Any procedures or processes instituted by the employer to challenge the decision or request for consideration; and
  • The right to file a complaint with the Department of Fair Employment and Housing.

The bill does not apply to the following positions: (1) a position for which a state or local agency is otherwise required by law to conduct a conviction history background check; (2) a position with a criminal justice agency as defined by the California Penal Code; (3) a farm labor contractor as defined by the California Labor Code; and (4) a position where an employer is required by state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history.

This bill is part of a growing wave of protections for applicants and employees in California and the Cities of Los Angeles and San Francisco with criminal histories as described in our earlier article, available here.

Please contact your Jackson Lewis attorney to discuss these developments and your specific organizational needs.

Employees of Meal Subscription Companies may be Required to Obtain Food Handler Cards

The California Legislature recently passed AB 1461 which, if signed into law, would require all food-handling employees of food facilities that provide meal subscription plans to obtain food handler cards in accordance with existing requirements. All for-profit food facilities that offer meal subscription plans would be subject to the new law. “Meal subscription plans” would include all subscription-based meal delivery services that provide customers with original recipes and proportioned ingredients needed to prepare those recipes at home. Employees and independent contractors who provide services to online websites or mobile applications that enable individuals to place food delivery orders from food facilities would not be subject to the requirement. This Bill was presented to Governor Jerry Brown on September 7, 2017, and is awaiting his signature.

 

Employees in California? If so, these are the Employment Bills to Watch

With the flurry of action by California lawmakers in the final weeks of the legislative session, there are approximately 640 bills waiting for action by California Governor, Jerry Brown.  Here is a list of legislation which California employers should be watching.

  • SB 63 – This bill would expand CA’s family leave law to employers with 20 or more employees (as opposed to CFRA, which applies to CA employers with 50 or more employees). Eligible employees could take up to 12 weeks of job-protected unpaid parental leave to bond with a new child within one year of the child’s birth, adoption, or foster care placement.
  • AB 168 – This topic is likely a familiar one for employers, as it has been the subject of previous legislative efforts in California.  In addition, several states and cities (including San Francisco) are adopting their own local ordinances on this subject. This bill would prohibit California employers from asking about job candidates for their salary history.  Upon request, an employer would also be required to provide an applicant with the pay scale of the desired position. 
  • SB 306 – This bill dramatically revises retaliation claim procedures under California law. It authorizes injunctive relief (such as reinstating the employee) in retaliation cases, before the case has been completely investigated or litigated to determine whether a violation has occurred.  The bill also allows the Labor Commissioner to cite an employer for retaliation independently, without an employee complaint.
  • AB 568 – This bill would require school districts, charter schools, and community colleges to provide at least six weeks of full paid leave for pregnancy, miscarriage, childbirth and recovery.
  • AB 569 – This bill seeks to protect women from being fired or disciplined over decisions related to their reproductive health, including but not limited to, the use of any drug, device, or medical service. Because this bill adds a new section to the Labor Code, any violation would be subject to the Labor Code Private Attorneys General Act (PAGA).
  • AB 1008 – Known as “Ban the Box”, this bill would prohibit public and private (more than 5 employees) employers from acting about past convictions on any application for employment. The employer could ask about conviction history after giving a conditional offer of employment.
  • AB 1565This bill provides that an executive, administrative or professional employee is exempt from overtime if they earn a monthly salary equivalent to $3,956 or twice the state minimum wage, whichever is higher.  This figure roughly represents the amount proposed by the Obama Administration – which amounts to an annual salary of $47,472. California’s exemption will reach this salary level on its own in 2019 (or 2020 for smaller employers) as the California minimum wage increases, but this bill will speed up the process.

Should you have a particular interest in these bills, or wish to discuss these developments in greater detail, please contact your local Jackson Lewis attorney.

California Supreme Court Clarifies Discovery under PAGA

Emphasizing the broad right of discovery and the remedial nature of the California Private Attorneys General Act of 2004, the California Supreme Court has ruled that, in pretrial discovery, plaintiffs under PAGA has a right to employer records containing other employees’ names and contact information. Williams v. Marshalls of California, LLC, No. S227228 (July 13, 2017).

The trial court adopted, and the Court of Appeal upheld, a limited and phased approach to PAGA discovery. It allowed the plaintiff discovery on the names and contact information of only the other employees in the plaintiff’s same work location. The plaintiff had demanded statewide information. The trial court said that if the plaintiff could establish his claims after his deposition, it would entertain allowing broader discovery as to the defendant’s other stores.

In a 7-0 decision, the Supreme Court, reiterating two themes – the broad right to discovery and the remedial nature of PAGA, and reversed the lower courts’ decisions. It held that the lower courts improperly restricted the plaintiff’s right to “PAGA class” names and contact information on the basis of (1) overbreadth, (2) undue burden, and (3) privacy.

  1. Overbreadth: The Court reiterated that a party ordinarily may use interrogatories to seek the identity and location of witnesses, and it falls on the party resisting discovery to justify its objections. The Court further explained that nothing in PAGA suggests a limited scope or a limitation on discovery. To the contrary, the Court said, PAGA is a representative action that is remedial in nature and broad in scope, which supports broad discovery.
  2. Undue Burden: The Court dismissed this objection on relatively narrow grounds. It held that the defendant failed to provide concrete evidence on how or why this discovery request was unduly burdensome. Rather, the defendant generally argued that a PAGA plaintiff must establish good cause or some merit to his claims in order to justify broader discovery. The Court found no legal basis – whether in PAGA or under general discovery principles – for imposing such a limitation on discovery.
  3. Privacy: The Court rejected the privacy arguments advanced by the defendant and the lower courts. It found that the Belaire notice procedure provided sufficient protection to employee privacy, particularly given the fact that employee contact information does not constitute a “serious invasion of privacy” and that employees would likely want to be contacted about such lawsuits.

Please contact Jackson Lewis with any questions about the Supreme Court decision.

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