In April 2012, the Equal Employment Opportunity Commission (EEOC) issued its long-awaited “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964” (2012 Guidance). The 2012 Guidance does not prohibit employers from using criminal records, but outlines best practices that the EEOC advises employers to follow, including a recommendation that employers, among other things: (1) remove from employment applications the question that asks job applicants to self-disclose their criminal record; (2) not make an employment decision based solely on the fact of an arrest record; and (3) conduct an “individualized assessment” before rejecting an applicant or terminating an employee because of a conviction.
Articles Discussing General Workplace Issues in California.
This week, a California Court of Appeal issued its opinion in Vasserman v. Henry Mayo Newhall Memorial Hospital, rejecting the hospital’s appeal of a trial court order denying its motion to compel the plaintiff to arbitrate wage and hour claims she brought against the hospital. The court acknowledged that the applicable collective bargaining agreement included a provision requiring arbitration of claims arising under the agreement, but held that it was not “clear and unmistakeable” from this provision that the parties intended to waive a judicial forum for claims based on statute (i.e. meal and rest breaks, overtime). As such, the plaintiff could not be required to arbitrate her wage and hour claims.
In just the last two years, there has been an explosion in the number of claims being brought against California employers under the state’s Private Attorney General Act (PAGA).
By determining that the Sarbanes-Oxley Act (“SOX” or the “Act”) preempts California’s ethical rules, the Northern District of California ruled that an in-house attorney can rely on privileged communications and confidential information to the extent they are reasonably necessary to assert a claim or defense. Wadler v. Bio-Rad Laboratories, Inc., et al., No. 3:15-cv-02356 (N.D. Cal. Dec. 20, 2016).
Are you sick of sick leave yet?
On December 9, 2016, Los Angeles Mayor Eric Garcetti signed the “Los Angeles Fair Chance Initiative for Hiring,” the “Ban the Box” ordinance that bars certain City of Los Angeles employers from asking job applicants about their criminal history. Ban the Box goes into effect January 1, 2017, and Los Angeles becomes the fifteenth locality in the nation to adopt it. The ordinance will be codified as Article 9 to Chapter 18 of the Los Angeles Municipal Code and can be found here.
By April 1, 2017, all employers in California operating in the following areas will be required to comply with Section 3342, the Workplace Violence Prevention in Health Care rule: health care facilities; home health care programs; drug treatment programs; emergency medical services; and outpatient medical services to correctional and detention settings. This rule is far more expansive than Federal OSHA’s guidelines for the Prevention of Workplace Violence in Health Care settings.
On November 8, 2016, San Jose residents passed Measure E, known as the “Opportunity to Work” Ordinance. The Ordinance, which becomes effective on March 13, 2017, requires employers with 36 or more employees to offer additional work hours to existing part-time employees before hiring new employees (whether part-time, temporary, and/or through a staffing agency) or contractors, even when the hiring need is occasioned by the departure of an existing employee. One of the expressed intentions of the Ordinance is to prevent employers from hiring part-time workers in an effort to avoid providing health care and other employment-related benefits. However, the practical effects of this Ordinance will be to reduce employment opportunities for companies and industries that may be seasonal, and reduce flexibility of employers to meet customer demands.
Los Angeles is the latest in a growing list of jurisdictions to adopt an ordinance restricting employers from asking a job applicant about his or her criminal history during the application process. Under the Ordinance, private employers with at least 10 employees will be barred from inquiring about a job applicant’s criminal history until a conditional offer of employment has been made.
With the dust still settling from last month’s unprecedented presidential election, California’s politicians have not stood still. In partisan terms, the election results in California could not be more different from that of the rest of the United States. Hillary Clinton received the votes of 62% of California’s voters; President-elect Donald Trump received 32%, with a 4.3 million-vote margin for Clinton in the Golden State. The most recently reported national percentages were 48% for Clinton, 46% for Trump, with a 2.6 million vote margin for Clinton.
The New Year will bring significant changes to the local employment laws affecting Silicon Valley-area employers, with measures aimed at reducing the expansion of the part-time workforce and increasing the minimum wage.
It is common practice for employers to utilize forum selection and choice of law provisions in employment agreements in order to require employees to have employment-related disputes adjudicated outside of California and/or under the law of a state other than California.
California voters have decided on a number of important Propositions yesterday. Of the Propositions receiving majority support, California employers may particularly wonder about the potential impacts of Proposition 64, which will legalize the recreational use of marijuana.
An amendment to California law expands state prohibitions against “unfair immigration-related practices” related to the hiring of foreign nationals. SB-1001 goes into effective on January 1, 2017.
For employers with California employees, there seems to be no way to avoid California’s complicated and protective employment laws, and things just got a bit more complicated.