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.

California Issues New Domestic Violence, Sexual Assault, Stalking Notice

As required under AB 2337, California Division of Labor Standards Enforcement (“DLSE”) has published a new written notice to employees, in English and Spanish, regarding their rights to take protected leave for domestic violence, sexual assault, or stalking. AB 2337, signed by Governor Jerry Brown in September 2016, expanded employer notice requirements. Employers must inform each employee of his or her rights through a notice upon hire and at any time upon request. An employer need not use the DLSE’s notice, but any employer’s notice must be “substantially similar in content and clarity” to the agency’s. 

For more on AB 2337, see our blog post, “California Employers Must Provide Written Notice of Right to Take Domestic Violence Leave.” The new notices can be found at the DLSE web page at http://www.dir.ca.gov/dlse/DLSE-Publications.htm

 California employers must update their new hire procedures to include the new notice.

 

San Francisco Passes “Lactation in the Workplace Ordinance”

On June 30, 2017, San Francisco Mayor Ed Lee signed the “Lactation in the Workplace Ordinance” (“Ordinance”), increasing protections for nursing mothers working in San Francisco. The Ordinance becomes effective January 1, 2018, and applies to anyone employed within the “geographic boundaries” of San Francisco.

Read about how this ordinance will impact employers at our Disability, Leave & Health Management blog here.

Are You Ready for Important California and City of Los Angeles Regulations Effective July 1, 2017?

Both California and the City of Los Angeles have enacted regulations effective July 1, 2017 governing employer use of applicant and employee criminal history in making employment decisions. Below we summarize these upcoming changes as well as the City of San Francisco’s ordinance already in effect.

New California Regulations

The California Fair Employment and Housing Council (“FEHC”) adopted new regulations limiting the ability of employers to consider criminal history when making employment decisions. These new regulations prohibit employers from using criminal records or information regarding criminal history in employment decisions if doing so would have an adverse impact on individuals in a legally protected class designated by the Fair Employment and Housing Act (“FEHA”) unless the employer could establish the practice was job-related and consistent with business necessity. Even then, an employer could still face liability if the adversely impacted applicant or employee is able to demonstrate an effective and less discriminatory way of achieving the business necessity.

To establish job-relatedness and business necessity, an employer must demonstrate that the policy or practice is appropriately tailored, taking into account at least the following factors:

(A) The nature and gravity of the offense or conduct;

(B) The time that has passed since the offense or conduct and/or completion of the sentence; and

(C) The nature of the job held or sought.

Demonstrating that a policy or practice of considering conviction history in employment

decisions is appropriately tailored to the job for which it is used as an evaluation factor requires that an employer either:

(A)Demonstrate that any “bright-line” conviction disqualification or consideration (that is, one that does not consider individualized circumstances) can properly distinguish between applicants or employees that do and do not pose an unacceptable level of risk and that the convictions being used to disqualify, or otherwise adversely impact the status of the employee or applicant, have a direct and specific negative bearing on the person’s ability to perform the duties or responsibilities necessarily related to the employment position. Bright-line conviction disqualification or consideration policies or practices that include conviction-related information that is seven or more years old are subject to a rebuttable presumption that they are not sufficiently tailored to meet the job-related and consistent with business necessity affirmative defense (except if justified by subsection (f) below); or

(B) Conduct an individualized assessment of the circumstances and qualifications of the applicants or employees excluded by the conviction screen. An individualized assessment must involve notice to the adversely impacted employees or applicants (before any adverse action is taken) that they have been screened out because of a criminal conviction; a reasonable opportunity for the individuals to demonstrate that the exclusion should not be applied due to their particular circumstances; and consideration by the employer as to whether the additional information provided by the individuals or otherwise obtained by the employer warrants an exception to the exclusion and shows that the policy as applied to the employees or applicants is not job-related and consistent with business necessity.

Regardless of whether an employer utilizes a bright line policy or conducts individualized assessments, before an employer may take an adverse action such as declining to hire, discharging, laying off, or declining to promote an adversely impacted individual based on conviction history, obtained by a source other than the applicant or employee (e.g. through a credit report or internally generated research), the employer must give the impacted individual notice of the disqualifying conviction and a reasonable opportunity to present evidence that the information is factually inaccurate. If the applicant or employee establishes that the record is factually inaccurate, then that record cannot be considered in the employment decision.

For more information about these new regulations, visit our previous blog here.

‘Ban the Box’ Legislation Makes its Way to City of Los Angeles

While the City of Los Angeles Fair Chance Ordinance (“FCIHO”) became effective January 22, 2017, employers had until July 1, 2017, before penalties may be imposed for non-compliance with provisions of the FCIHO. Below we describe the penalties facing employers who fail to comply with the recent ordinance and review the ordinance’s principal requirements.

Except for violations of the FCIHO’s notice, posting, and record retention requirements, the DAA (Department of Public Works, Bureau of Contract Administration) may fine employers who violate the ordinance up to $500 for the first violation, up to $1,000 for the second violation, and up to $2,000 for violations of the FCIHO. Violations of the FCIHO’s notice, posting, and record retention requirements may result in fines of up to $500 per violation.  The amount of the fine imposed by the DAA may be based on the willfulness of the employer as determined by the DAA.

Penalties are due to the City of Los Angeles within 30 days of notice to the employer. Failure of an employer to pay the fine within 30 days shall result in assessment of a late fee, which shall be 10% of the total amount of the fine assessed for each month the amount is unpaid, compounded to include already accrued late fines which remain unpaid.  Further, the fine paid by the employer may be awarded by the City of Los Angeles to the applicant or employee, up to a maximum of $500 per violation.

Individuals also may bring a civil action for violation of the FCIHO once they have submitted an administrative complaint to the DAA (Department of Public Works, Bureau of Contract Administration). Employees or applicants may seek penalties (as set forth above) plus other legal and/or equitable relief as appropriate to remedy the violation.

In sum, absent limited exceptions, the FCIHO generally prohibits private employers with at least 10 employees from inquiring into an applicant’s criminal history until after a conditional offer of employment has been made. This prohibition precludes employers from:

  • Asking any question on a job application about an applicant’s criminal history;
  • Asking about or requiring disclosure of the applicant’s criminal history during a job interview; or
  • Independently searching the internet for criminal conviction information or running a criminal background check before a conditional offer of employment has been made.

If an employer inquires into an applicant’s criminal history after a conditional offer of employment and determines such information warrants an adverse action, the employer must follow the “Fair Chance Process,” which requires the employer to do the following:

  1. Perform a “written assessment” that links the specific aspects of the applicant’s criminal history with the risks inherent in the duties of the position sought.
  2. Provide the applicant with written notification of the proposed action, a copy of the written assessment, and any other information or documentation supporting the employer’s proposed adverse action;
  3. Wait at least five business days after the applicant is informed of the proposed adverse action before taking such action or filling the employment position; and
  4. Consider information or documentation provided by applicant regarding error, rehabilitation or other mitigating information. If the employer still elects to take the adverse action after such reassessment, it must again notify the applicant of the decision and provide the applicant with a copy of the written reassessment.

For more information about the Los Angeles Fair Chance Ordinance, please read our previous posts here and here.

San Francisco’s ‘Ban the Box’ Ordinance

In August 2014, the City and County of San Francisco enacted its Fair Chance Ordinance, which restricts all employers with at least 20 employees from inquiring about an applicant’s criminal history on an employment application or before completing an initial interview. This law applies to regular employees, as well as employees performing contract work, contingent work, or work through a temporary agency.

After the initial interview, the Ordinance continues to prohibit the employer from asking the applicant about the following:

  • Arrests that did not result in conviction, unless charges remain pending;
  • Completion of a diversion program;
  • Sealed or juvenile offenses;
  • Offenses that are more than seven years old from the date of sentencing; and
  • Offenses that are not misdemeanors or felonies, such as infractions.

Prior to requesting any information about criminal history, an employer must provide the applicant with written notice and must display a poster in the workplace developed by the City’s Office of Labor Standards Enforcements (“OLSE”).

The Ordinance also restricts an employer’s ability to consider criminal history disclosed by an applicant. Employers may only consider disclosed criminal history if it “has a direct and specific negative bearing on that person’s ability to perform the duties or responsibilities necessarily related to the employment position.” However, in making this determination, employers must consider whether the position offers an opportunity for the same or similar offense to occur. Employers must also consider the amount of time that has elapsed since the convictions and other mitigating factors.

If an employer chooses to reject an applicant because of their criminal history, the employer is required to notify the applicant in writing before the decision is made. The applicant must then be given seven days to provide notice of an error, rehabilitation, or other mitigating information. If the applicant chooses to submit such information, the employer must take a reasonable amount of time to consider this new information and reconsider the proposed adverse action before taking final action.

The Ordinance also requires employers to include a notice that it will consider for employment qualified applicants with criminal histories in a manner consistent with the requirements of the Ordinance in any solicitation or advertisement for new employees likely to reach persons who are reasonably likely to seek employment in San Francisco.

Employers who violate this Ordinance may be exposed to significant liability. The City is authorized to pursue civil remedies, including injunctive relief, reinstatement of an aggrieved applicant or employee, back pay, benefits, and $50 per day for each day the Ordinance is violated, and attorneys’ fees and costs.

For more information about Ban the Box Legislation in San Francisco, read our previous post here.

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For further information or assistance in developing strategies for complying with these laws, please contact the Jackson Lewis attorney with whom you regularly work.

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