United States: California Enacts A Quartet Of Employment Laws Affecting Hiring Practices, Parental Leave, And Harassment Training

Last Updated: November 10 2017
Article by Nicholas B. Haynes and Meryl Mills

Fall is typically filled with hoary traditions for Human Resources, like open enrollment, holiday party behavior warnings, and the usual scramble to finish the year's strategic agenda. Too often, updating employment practices in the wake of new legislation is left by the wayside. But, as has been the case in past years, California recently passed laws that will impact employee handbooks, job applications, and the state's mandatory harassment prevention training beginning in January 2018, making it prudent for companies to update their policies and procedures before the beginning of next year.

The following updates are necessary for compliance and to avoid potential liability beginning January 1, 2018:

  • Employers should remove questions regarding criminal background and salary history from employment applications, update hiring practices to ensure no impermissible questions are asked during an interview, develop pay scales for advertised positions to disclose upon request, and train Human Resources on the new notice requirements in the event an offer needs to be rescinded based on an applicant's criminal history;
  • Employers with employees who work at a worksite in which the employer employs at least 20 but not more than 49 employees within 75 miles should update their employee handbooks with a parental leave policy for new parents to bond with their children and update any internal leave of absence practices and forms; and
  • Employers must post the Department of Fair Employment and Housing's ("DFEH") new poster regarding transgender rights in the workplace (here). In addition, when providing the required sexual harassment prevention training for supervisors, employers must now include training and specific examples of harassment based on gender identity, gender expression, and sexual orientation.

More detailed information about each of these new laws can be found below:

  1. AB 1008 (Ban the Box) – This law makes it illegal for employers to: (1) include questions on an application that seek disclosure of an applicant's conviction history prior to making a conditional offer of employment; (2) inquire into or consider conviction history before a conditional offer has been made; (3) consider, distribute, or disseminate information about an applicant's arrest that was not followed by a conviction, referral to or participation in a pretrial or post-trial diversion program, or convictions that have been sealed, dismissed, expunged, or statutorily eradicated; or (4) interfere with any right provided by this law.

    The law also requires employers to take steps before denying a position based on the applicant's conviction history. Specifically, the employer must first make an individualized assessment of whether the applicant's conviction history has a direct and adverse relationship with the specific duties of the job to justify denying the position. Employers must consider all of the following factors: (1) the nature and gravity of the offense or conduct; (2) the time that has passed since the offense or conduct and completion of the sentence; and (3) the nature of the job held or sought. The assessment may be recorded in writing, but it is not required by the law.

    If the employer makes a preliminary decision that the applicant's conviction history disqualifies the applicant from employment, the employer must notify the applicant in writing. The notification can, but is not required to, justify or explain the employer's reasoning for its decision. The notification must contain: (1) notice of the disqualifying conviction(s) that formed the basis of the employer's preliminary decision; (2) a copy of the conviction history report (if any); and (3) an explanation of the applicant's right to respond to the notice before the employer's preliminary decision will become final and a deadline (at least five business days) by which to respond. The explanation must also inform the applicant that his or her response may include submission of evidence challenging the accuracy of the background check and/or evidence of mitigating circumstances or rehabilitation. If the applicant responds within five business days in writing that he or she disputes the conviction history report's accuracy and that the applicant is taking steps to obtain evidence to prove it, then the employer must provide the applicant an additional five business days to respond to the notice. The employer must consider any information submitted by the applicant before making a final decision.

    If the employer decides to deny an application based on conviction history, the employer must notify the applicant in writing of the following: (1) the final denial or disqualification (the employer may, but is not required to, detail its reasoning); (2) the employer's procedure for the applicant to challenge the decision or request reconsideration (if one exists); and (3) the right to file a complaint with the DFEH.

  2. AB 168 (Salary History Ban) – This law prohibits employers from (1) soliciting an applicant's salary history information or (2) relying on it as a factor in determining (a) whether to offer the applicant employment or (b) in setting the salary offer to an applicant. "Salary history information" includes information about the applicant's prior compensation and benefits. Upon request, an employer must also provide the pay scale for a position to an applicant. The employer may, however, consider or rely on an applicant's voluntary disclosure of his or her salary history information, although – consistent with California's Fair Pay Act – employers are still prohibited from using prior salary by itself to justify any pay disparity. (In general, even if the applicant voluntarily discloses such information, it is still quite risky to consider it.)
  3. SB 63 (New Parent Leave) – This law expands baby bonding leave under the California Family Rights Act ("CFRA") to require employers with locations that have between 20 and 49 employees to provide eligible employees up to 12 weeks of unpaid leave to bond with a new child within one year of the child's birth, adoption, or foster care placement. Employees are eligible if they have more than 12 months of service with the employer, at least 1,250 hours of service with the employer during the previous 12-month period, and if they work at a worksite in which the employer employs at least 20 employees within 75 miles. Employers with worksites that have 50 or more employees within 75 miles are covered by the CFRA and its baby-bonding requirements and are not covered by the New Parent Leave Act.

    An employee may take paid time off while on New Parent Leave. The employer must continue benefits during the leave but may recover the cost of premiums if the employee fails to return from leave under circumstances of their own control. However, if an employee qualifies for CFRA leave, the employee is not eligible for this leave. New Parent Leave also does not overlap with Pregnancy Disability Leave and is a separate leave. If both parents work for the same employer, the sum of both parents' leave shall be 12 weeks. The employer may, but is not required to, allow both employees to be on leave at the same time. Employers must, on or before the commencement of this parental leave, provide a guarantee of employment in the same or a comparable position upon the termination of the leave, or the employer shall be deemed to have refused to allow the leave.

    Until January 1, 2020, within 60 days of a right-to-sue notice from the DFEH, the employer has the opportunity to request that all parties participate in the department's Mediation Division Program. If an employer requests mediation within 60 days of receipt of a right-to-sue notice, an employee shall not pursue any civil action under this section until the mediation is complete.

  4. 4. SB 396 (Harassment Prevention) – The Fair Employment and Housing Act ("FEHA") currently requires employers with 50 or more employees to conduct mandatory sexual harassment prevention training to supervisors and managers and to post a DFEH-issued poster detailing the prohibitions on discrimination and harassment in the workplace. This new law also requires employers to post a DFEH developed poster regarding transgender rights in a prominent and accessible location in the workplace. The law further requires that employers update their mandatory sexual harassment prevention training to include a section on harassment based on gender identity, gender expression, and sexual orientation. The training must include practical examples of such harassment and be presented by trainers or educators with knowledge and expertise in those areas.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Nicholas B. Haynes
Meryl Mills
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