At the end of February, the Los Angeles County Board of Supervisors passed an ordinance adding several compliance requirements to the California Fair Chance Act requirements for employers considering the criminal history of applicants and employees in making employment decisions.

The Fair Chance Ordinance (FCO) applies to employers with 5 or more employees in unincorporated areas of Los Angeles County.

The ordinance takes effect March 28, 2024, and is operative September 3, 2024.  

The following is a summary of some of the ordinance’s requirements.

Job Postings

Under the FCO employers shall not prevent or discourage applicants or employees with criminal history from applying or responding to job solicitations, postings, announcements, and advertisements (together referred to as “job postings”) including:

  • Include in all job postings language stating that qualified applicants with arrest or conviction records will be considered for employment.
  • Shall not include statements in job postings that no person with a criminal history will be considered for hire or should not apply.
  • Specify in all job postings any local, state, or federal laws that impose restrictions or prohibit the hiring of individuals with specified criminal history.
  • Specify in the job postings the employer’s intention, if any, to conduct a review of an employee’s criminal history in connection with a conditional offer and include a list of all material job duties of the specific job position which the employer reasonably believes that the criminal history may have a direct, adverse and negative relationship potentially resulting in the withdrawal of the conditional offer of employment.

Background Checks

Covered employers are prohibited from inquiring about criminal history prior to extending an applicant or employee a conditional offer of employment unless legally required to do so. This includes not asking or encouraging an applicant or employee to disclose information about their criminal history or rejecting applications because criminal history was not provided.

If conducting a background check after a conditional offer, the employer must provide notice in writing that includes the following:

  • A statement that the conditional offer of employment is contingent upon the review of the individual’s criminal history.
  • A statement that the employer has good cause to conduct a review of criminal history for the specific job position with supporting justification. A general statement without supporting justification is not deemed sufficient.
  • A complete list of all types of information, background, or history that will be reviewed in addition to the applicants’ or employees’ criminal history, including but not limited to education, social media history, employment history, motor vehicle or driving history, reference checks, credit history, license or credential verification, drug testing, or medical examinations.

In obtaining a criminal background check, an employer may not ask the applicant or employee to provide information orally or in writing regarding the applicant or employee’s criminal history, unresolved arrests, or prior convictions, including asking the applicant or employee to fill out a criminal history questionnaire, prior to the employer’s receipt of the criminal background check report.  Such report must be provided to the applicant or employee before an employer discusses any criminal history information, or requests further criminal history information from, the applicant or employee.

If an employer intends to deny an applicant or employee a position of employment, rescind a condition offer, or take any other adverse action against an employee solely or in part because of the applicant’s criminal history, the employer must first conduct an initial individualized assessment that is documented in writing, of whether the applicant’s criminal history has a direct adverse and negative bearing on the applicant’s ability to perform the duties necessary for the position.

Preliminary Notice and Notice of Adverse Action

If after the initial individualized assessment, the employer intends to withdraw or rescind a conditional offer of employment and/or take any other adverse employment action, the employer shall provide the applicant or employee with a preliminary notice of the adverse action, which must be sent by both regular mail and email, if an email address is available, and contain the following:

  • Notice of intent to withdraw or rescind condition offer of employment and/or take any other adverse employment action due to criminal history.
  • An explanation of the applicant’s right to respond to the notice before the decision becomes final, including the waiting periods and timelessness to respond as specified in the FCO.
  • A copy of the initial individualized assessment
  • Notice of the disqualifying convictions
  • A copy of the criminal background check report

The employer must give the applicant or employee five business days to respond to the preliminary notice of adverse action before making a final decision.  The applicant or employee must be given at least ten additional business days either: (a) to respond to the preliminary notice if the applicant notifies the employer in writing that they dispute the accuracy of the background check and is taking steps to obtain evidence or needs additional time to obtain written evidence if rehabilitation or mitigating circumstances, or (b) to present evidence of rehabilitation or mitigating circumstances orally at a meeting between the applicant or employee and the employer.

The employer must consider all of the information and documents, whether written or oral, timely submitted before making a final decision or taking an adverse action and the employer must complete a second individualized assessment.  If after a second individualized assessment, the employer makes the final decision to withdraw the conditional offer or take adverse employment action, the employer shall notify the applicant or employee by both regular mail and electronic mail of the following:

  • Notice that the employer has made a final decision to withdraw the conditional offer
  • A copy of the second individualized assessment
  • Notice of the disqualifying conviction
  • Information regarding existing procedures the employer has for the applicant to challenge the decision or request reconsideration.
  • Notice of the applicant’s or employee’s right to file a complaint with the Los Angeles County Department of Consumer & Business Affairs.

The employer must provide the final notice of adverse action within 30 calendar days after the applicant or employee timely responds to the preliminary notice.  Otherwise, it will be presumed the delay was untimely and in violation of the section. In order to rebut this presumption, the employer must provide a written explanation justifying the delay.

Recordkeeping

Employers must maintain and preserve any and all records relating to this ordinance for a minimum of four years following receipt of an application.

If you have questions about the Los Angeles County Fair Chance Ordinance or related issues with background checks, contact a Jackson Lewis attorney to discuss.

Last year, California’s Governor signed Senate Bill (SB) 553, which requires all employers to establish, implement, and maintain an effective Workplace Violence Prevention Plan (WVPP). The law takes effect on July 1, 2024. Cal/OSHA is responsible for enforcing the requirements of SB 553, now codified at California Labor Code Section 6401.9.

Last Friday, Cal/OSHA published a Model WVPP. Similar to its model Injury and Illness Prevention Plan (IIPP) and COVID-19 Prevention policy, the Model WVPP is designed to assist employers in drafting their own plans. Employers are not required to use Cal/OSHA’s model but may use it as a template. The Model WVPP contains numerous questions and examples for employers to consider as they assess the risks in their own workplaces and “fill in the blanks” of the template accordingly.

Cal/OSHA also published a Fact Sheet for Employers on the requirements.  The Fact Sheet provides an overview of the requirements of:

  • Creating a workplace violence prevention plan
  • Violent incident log requirements
  • Employer responsibilities with workplace violence recordkeeping
  • Training employees on workplace violence

If you need assistance in developing a Workplace Violence Prevention Plan and related training or have related workplace safety issues, please contact a Jackson Lewis attorney to discuss.

The State of California recently updated two pamphlets that must be provided to new hires.

The California Department of Industrial Relations Division of Workers Compensation updated its “Time of Hire” Pamphlet.  Employers must provide this document to newly hired employees. The document explains what workers’ compensation is, how to file a claim in addition to navigating medical care.

The Employment Development Department (EDD) updated its “For Your Benefit” pamphlet. Employers must provide this pamphlet at the time of hire and discharge of employees. The document details state-provided benefits for employees when terminated or when they are on certain leaves.  The document also discusses how to obtain unemployment insurance, tax requirements for unemployment benefits, a list of workers who are not eligible to obtain unemployment benefits, and information concerning eligibility for state disability insurance.

Both documents are also available in Spanish.

If you have questions about the updated Pamphlets, related employee postings, and notices contact a Jackson Lewis attorney to discuss.

Cal/OSHA, the California Division of Occupational Safety and Health, effective January 1, 2024, increased penalties for certain violations to adjust for inflation and ensure consistency with California and federal law.

This annual increase is mandated by a statute enacted by California in 2017, which authorizes increases in certain minimum and maximum civil penalties to ensure consistency with federal OSHA’s civil penalties. The increase is based on the Bureau of Labor Statistics’ report on the October Consumer Price Index for All Urban Consumers (CPI-U) each year. This year’s adjustment for the inflation rate was approximately 3.24%.

Cal/OSHA has three types of violations typically cited:

  • Regulatory: Relate to regulatory and statutory requirements such as injury and illness reporting and recordkeeping.
  • General: Violations relating to the safety and health of employees.
  • Serious: Violations where there is a realistic possibility of death or serious harm resulting from an actual hazard.

There are also penalties for repeat violations and willful violations of health and safety regulations.

For Cal/OSHA citations issued on or after January 1, 2024, the maximum penalties will be as follows:

  • Regulatory and General: $15,873.00
  • Willful and Repeat: $158,727.00

There was no increase to Serious violations, which remains at $25,000.00.

If you have questions regarding Cal/OSHA penalties or related issues, please contact a Jackson Lewis attorney to discuss.

In October 2023, California’s Governor signed Assembly Bill (AB) 1076 which added the new Business & Professions Code §16600.1, making it unlawful to impose non-compete clauses on employees – which contractual restrictions already are void under Business & Professions Code §16600.

Under AB 1076, employers must notify current employees and former employees (employed after January 1, 2022), that any noncompete agreement or noncompete clause contained within an agreement the current or former employee signed is void unless the agreement or clause falls within one of the statutory exceptions set forth in Business and Professions Code section 16600, et seq. The notices must be an individualized written communication to the employee or former employee, delivered to the last known address and email address the employee provided to the employer.

The changes to the law took effect on January 1, 2024, but employers have until February 14, 2024, to provide the required notices under the statute.

If you have questions about the notice requirements under AB 1076 or related issues, contact a Jackson Lewis attorney to discuss.

California’s pay data reporting portal will open on February 1, 2024, and employers will be required to report on three new data points.

Since 2020, California has mandated that employers with at least 100 employees submit a pay data report to the state Civil Rights Department (CRD) as part of its efforts to advance fair pay. The reporting requires annual submissions detailing pay and hours worked for employees in California, or who are a part of a California establishment, categorized by establishment, job category, race/ethnicity, and sex.

In 2022, the reporting requirements expanded to require reporting on both “payroll employees” (workers on an employer’s payroll) and “labor contractor employees” (workers not on an employer’s payroll who are engaged in the employer’s usual course of business). That amendment also established potential penalties of $100 per employee for employers who fail to comply (or $200 per person for repeat failures).

In January 2024, California again updated its pay data reporting website for the 2024 reporting cycle.

Below are the key updates:

  1. Reporting Portal Opening: The portal in which employers must submit their pay data reports will open on February 1, 2024.
  2. Submission Deadline: The deadline to submit payroll and labor contractor employee reports is May 8, 2024.
  3. New Templates Released: Updated Microsoft Excel templates for this year’s reporting are designed to help employers compile and submit the necessary information.
  4. FAQs Update Pending: The FAQs currently reflect the 2022 reporting period (submitted in 2023) and have not been updated for this cycle. Thus, further guidance for this year may still be released to address any changes or provide additional clarifications.

This year’s payroll employee template introduces three new required data points for each group of employees by establishment, job category, race/ethnicity, sex, and pay band:

  1. The number of employees in the group that work onsite;
  2. The number of employees in the group that work remotely from California; and
  3. The number of employees in the work that work remotely outside of California.

The new labor contractor employee template requires the same data points for each labor contractor, establishment, job category, race/ethnicity, and sex employee group.

Employers should act promptly to prepare their data and use the CRD’s new tools and resources.

If you have questions about California’s pay data reporting requirements or need assistance with this submission, contact a Jackson Lewis attorney to discuss.

Unless exempt, California employers are required to post their annual summary of work-related injuries and illnesses, in a visible and easily accessible area at every worksite from February 1st through April 30thCal/OSHA’s Form 300A must be used for this posting.

Employers can find an overview regarding completing both the log (Form 300) and the annual summary (Form 300A) on Cal/OSHA’s Recordkeeping Overview page.

Cal/OSHA requires employers to record work-related fatalities, injuries, and illnesses. To be recordable under Cal/OSHA’s regulations, an injury or illness must be work-related and result in one of the following:

  • Death;
  • Days away from work;
  • Restricted work or transfer to another job;
  • Medical treatment beyond first aid;
  • Loss of consciousness; or
  • A significant injury or illness diagnosed by a physician or other licensed health care professional.

While the COVID-19 emergency in California has concluded for workplace health and safety requirements, any work-related COVID-19 fatality or illness that falls under the above criteria must be recorded on an employer’s Form 300, 300A, and 301, or equivalent forms.

Certain employers are required to annually electronically submit Form 300A data to Cal/OSHA by March 2nd. Covered employers are those that meet one of the following requirements:

  • Has 250 or more employees, unless specifically exempted by section 14300.2 of title 8 of the California Code of Regulations; or
  • Has 20 to 249 employees in the specified industries listed including Agriculture, Manufacturing, and Grocery Stores. For a full list of covered industries, employers can review Appendix H.

Information on how to make the electronic submission is available on the federal OSHA’s Injury Tracking Application website.

If you have questions about preparing your annual summary or need assistance with compliance, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

On January 18, 2024, the California Supreme Court issued its opinion in Estrada v. Royalty Carpet Mills. In the Estrada decision, the California Supreme Court resolved a split of authority on the issue of whether trial courts have discretion to strike or narrow a Private Attorneys General Act (PAGA) claim based upon manageability grounds.

The Supreme Court held trial courts lack inherent authority to strike PAGA claims on manageability grounds. In reaching that conclusion, the Court emphasized that trial courts do not generally possess a broad inherent authority to dismiss claims and examined the statutory and procedural differences between class actions and PAGA claims.

In the underlying case, plaintiffs brought PAGA and class claims primarily based on purported meal and rest period violations. The trial court dismissed the PAGA claim as “unmanageable” due to the number of individualized issues.

The Court of Appeal subsequently found courts do not have the discretion to strike a PAGA claim based on manageability, disagreeing with the prior California Court of Appeal decision from another district, holding that trial courts do have inherent authority to narrow or strike PAGA claims on manageability grounds. The Estrada Court of Appeal held striking a PAGA claim as unmanageable would interfere with PAGA’s purpose as a law enforcement mechanism by placing an extra hurdle on PAGA plaintiffs that would not be placed on the State.

The California Supreme Court Estrada decision resolves the split of authority regarding a trial court’s authority to dismiss PAGA claims as unmanageable. Agreeing with the Estrada Court of Appeal, the Court concluded that there was no basis for providing trial courts the authority to strike PAGA claims due to manageability issues. Moreover, the Court rejected the idea that class action manageability requirements could be grafted onto PAGA claims, reiterating that an employee seeking civil penalties under PAGA need not satisfy class action requirements.

Despite holding that PAGA claims could not be stricken as unmanageable, the Court noted trial courts have numerous tools other than striking a claim that can be used to manage complex cases, including PAGA claims. This decision does not preclude trial courts from limiting the types of evidence a plaintiff may present or using other tools to assure that a PAGA claim is effectively tried. The Court noted that trial courts may issue substantive rulings, including demurrers, motions for summary judgment, judgment notwithstanding the verdict, and potentially others under the Code of Civil Procedure to effectively adjudicate overbroad or unspecific claims on which a plaintiff is unable to prove liability as to all or most employees. As such, the Court left “undisturbed various case management tools designed to ensure that [PAGA] cases are efficiently, fairly, and effectively tried.”

If you have questions about the Estrada decision or related issues regarding PAGA, contact a Jackson Lewis attorney to discuss.

California’s Fair Chance Act also known as the “Ban the Box” law took effect in January 2018. It generally prohibits employers with five or more employees from asking about your conviction history before making you a job offer. In 2021, California’s Civil Rights Department (formerly the Department of Fair Employment and Housing) announced new efforts to identify and correct violations of the Fair Chance Act. Since then, the Civil Rights Department has stepped up enforcement of the statute. As such, it is vital for covered employers to understand the requirements under the law.

Covered Employers

Public and private employers with five or more employees are covered by the law. This includes union hiring halls, labor contractors, temporary employment agencies, and client employers.

Requesting Background Checks

Covered employers may not ask applicants about their criminal history until after a conditional offer is extended. However, even after a conditional offer, employers may not ask about or consider information about the following:

  • An arrest that did not result in a conviction.
  • Referral to or participation in a pretrial or posttrial diversion program.
  • Convictions that have been sealed, dismissed, expunged, or statutorily eradicated.

Steps for Rescinding a Job Offer

Under the law covered employers must take specific steps if they want to rescind a conditional job offer based on an applicant’s criminal history.

  1. Conduct an individualized assessment.
  2. Provide notification in writing that the applicant’s criminal history disqualifies the applicant from the position. The notice must also provide the conviction(s) that disqualify the applicant.
  3. Provide a copy of the conviction history report to the applicant.
  4. Provide the applicant 5 business days to respond to the preliminary decision to rescind.
  5. Consider any response from the applicant.
  6. Provide final notice in writing about disqualification.

The Civil Rights Department has sample forms available on its website.

If you need assistance with compliance with the Fair Chance Act, contact a Jackson Lewis attorney to discuss.

In light of California’s $37.86 billion budget shortfall, it is being reported that Governor Newsom is seeking changes to the California Healthcare Worker Minimum Wage law including the delay of the initial compliance date of June 1, 2024. It is not clear yet what the changes will be to the new law nor how far out the delayed implementation will be.

In the Governor’s proposed budget released on January 10, 2024, there is a request to make changes to the Healthcare Minimum Wage law so that the Governor, legislators, and key stakeholders can work through the proposed changes to the law. The proposal is found in the Governor’s Budget Summary on page 109.

On October 13, 2023, Governor Newsom signed Senate Bill (SB) 525, which enacts a multi-tiered statewide minimum wage schedule for healthcare workers employed by certain covered healthcare facilities. The new law established 5 different minimum wage schedules depending upon the nature of the employer.

Jackson Lewis will continue to track information regarding the changes to SB 525, if you have questions about SB 525 or related issues contact a Jackson Lewis attorney to discuss.