When it comes to legislation restricting employer use of criminal records, California seems to be leading the charge. In the last six months alone, we have reported on a variety of new laws that apply to California employers that use criminal records in pre-hire and other employment decisions.1 Continuing this trend, on February 16, 2017, five California assembly members introduced Assembly Bill 1008, which proposes to add a section to the Fair Employment and Housing Act (FEHA) containing new state-wide restrictions on an employer’s ability to make pre-hire and other employment decisions based on an applicant or employee’s criminal records, including a “ban-the-box” component.
Articles Discussing Human Resource Issues In California.
Can Employers Require Their Employees to Remain On Call During Rest Breaks?
In another important decision regarding an employer’s obligation to provide rest breaks, the California Supreme Court in Jennifer Augustus et al. v. ABM Security Services, Inc. (2016) 2 Cal.5th 257, dealt with two issues related to employee rest breaks: 1) whether employers are required to permit their employees to take off-duty rest periods pursuant to Labor Code 226.7 and Wage Order 4; and 2) whether employers may require their employees to remain “on call” during rest periods.
Background Check Disclosure/Consent Form That Includes a Liability Waiver Violates the FCRA
On Friday, the Ninth Circuit Court of Appeals issued its opinion in Syed v. M-I, LLC, holding, on an issue of first impression, that an employer willfully violated the Fair Credit Reporting Act (“FCRA”) by including a liability waiver on the background check disclosure and consent form it provided to prospective employees. The Ninth Circuit held that the FCRA expressly states that before obtaining a consumer report for employment purposes, an employer must disclose its intent to secure a consumer report for employment purposes and inform the consumer of his/her rights under the FCRA. The FCRA states that this information must be provided in writing in a document “consisting solely of the disclosure.” The FCRA goes on to state that the employer must obtain the consumer’s authorization to procure the report and that the authorization can be on the same document as the disclosure. In this case, the employer had a disclosure and consent form, as required by the FCRA. However, the employer’s form included a provision stating that the applicant signing the form agrees to release the employer from any and all liability stemming from its reliance on information derived from the consumer report. The Ninth Circuit held that the inclusion of this liability waiver on the disclosure and consent form violated the FCRA’s express mandate that the disclosure consist “solely of the disclosure.” The Ninth Circuit reasoned that the inclusion of extraneous information, such as a liability waiver, in the disclosure form violates the law.
Worse, the Ninth Circuit held, as a matter of law, that the employer’s violation was both “objectively unreasonable” and “willful” (thereby exposing the employer to statutory and punitive damages), even though this was an issue of first impression that no Circuit Court had before decided.
The full text of the Ninth Circuit’s opinion is available here. This case will only serve to promote more FCRA lawsuits against employers. Employers may wish to review their background check disclosure and consent forms to ensure that they do not improperly include “extraneous” information and that they otherwise comply with the FCRA (and California law, as applicable).
City of Los Angeles Passes Ban-the-Box Law
Executive Summary: The City of Los Angeles recently enacted its own Ban-the-Box law, designed to prevent employers with at least 10 employees from inquiring into or requiring an applicant to disclose their criminal history until a conditional offer of employment has been made. The law is expected to go into effect on January 22, 2017.
City of Los Angeles Mayor to Sign Long-Awaited and Onerous “Ban the Box” Law
In the next week, Los Angeles Mayor Eric Garcetti is expected to sign the Fair Chance Initiative for Hiring (Initiative), which will prohibit most private sector employers from inquiring into a job applicant’s criminal history until after making a conditional offer of employment. Los Angeles’ new “ban-the-box” law follows on the heels of similar legislation enacted in New York City and Austin, Texas, and continues the nationwide ban-the-box trend.1 The Initiative will go into effect in less than one month, on January 1, 2017.
Does Legalized Marijuana Impact Workplace Policies?
With recreational marijuana now legal in California, many employers are wondering how this impacts their drug free workplace policies and their response to an applicant/employee drug test that is positive for marijuana. Contrary to what many employees likely will believe, the new law does not restrict employers’ rights to continue enforcing policies that prohibit marijuana use. The new law expressly states that that it should not be construed or interpreted to:
The DFEH Modifies Proposed Regulations on Use of Criminal Records For Employment Decisions
On September 7, 2016, the California Department of Fair Employment and Housing (“DFEH”) announced modifications to its proposed regulations originally promulgated on February 19, 2016, governing the use of criminal history in employment decisions. The new regulations are intended to prevent disparate impact discrimination against protected classes such as gender, race, and national origin. If passed, the new modified regulations will impose more restrictions on employers, including a burden shifting test.
Calculation of California Paid Sick Leave May Spook Employers
As if paid sick leave wasn’t scary enough! From accrual methods, to the protections provided to the time off, to the varying (and ever growing) laws in different jurisdictions, paid sick leave can be spooky.
Reminder to Comply With California Voting Rights Law
As election day approaches, employers are reminded that California law requires them to post a notice 10 days before the election informing employees of their voting rights under state law. Specifically, employees must be informed that if they do not have sufficient time outside of working hours to vote, they may take off enough working time that, when added to the voting time available outside of working hours, will enable them to vote. Up to two hours of this time must be paid. The employer can require that the time off for voting be taken at the beginning or end of the employee’s shift, whichever allows the most free time for voting and the least time off from the regular working shift.
New California Law Limits Employers’ Ability To Inquire Into Juvenile Criminal History
On September 27, 2016, Governor Jerry Brown signed Assembly Bill 1843, which prohibits certain inquiries into the criminal past of applicants for employment. The new law now adds a prohibition against asking about, considering as part of the hiring process, or attempting to discover, information relating to any “arrest, detention, processing, diversion, supervision, adjudication, or court disposition” that occurred while the applicant was subject to the “process and jurisdiction” of the juvenile court.
Holiday Hiring: What’s on Your Employment Application
With holiday hiring in full swing, it’s a good time to review what should and should not be asked on employment applications.
California Governor Vetoes Parental Leave Bill Which Would Have Expanded Such Leave to Small Employers
The DOL’s final rule on paid sick leave was not the only news-making event in the world of leave management last Friday. While additional time off was being lauded by the federal government, additional protected leave was rejected in California.
New California Law Prohibits Choice of Law and Venue in Employment Contracts
On September 25, 2016, Governor Brown signed into law a new California Labor Code provision (Section 925) that is likely to have major repercussions for contracts with employees who live and work primarily in California. The new California Labor Code provision prohibits the use of contract provisions that apply another state’s law or require adjudication of disputes in another state as a condition of the employment of an individual who primarily resides and works in California.
California Amends Labor Code to Prohibit Employers from Using Juvenile Records in Employment Decisions
On September 27, 2016, California Governor Jerry Brown signed Assembly Bill No. 1843, which amends the California Labor Code to prohibit employers from considering certain juvenile records for employment purposes. The amendment is effective January 1, 2017.
California Employers Must Provide Written Notice of Right to Take Domestic Violence Leave
On September 14, 2016, Governor Jerry Brown signed AB 2377 into law which expands the employer notice requirements regarding domestic violence employee protections provided by Labor Code section 230.1. Despite the protections under current law, many employees remain uninformed about their employment-related rights when it comes to domestic violence. This new bill requires employers of 25 or more to provide written notice to employees of their rights to take protected leave for domestic violence, sexual assault or stalking. Employers must inform each employee of his or her rights upon hire and at any time upon request. The Labor Commissioner must develop and post online a form that employers may use to satisfy these new notice requirements by July 1, 2017. An employer’s obligation to comply with these new disclosure requirements will become effective when the Labor Commissioner posts the new form.