The Labor & Employment Law Blog

Focusing on legal trends in data security, cloud computing, data privacy, and anything E

State-Wide BAN THE BOX Law No More Criminal Conviction Questions on Employment Applications

Posted in Employee Privacy Rights, Labor Law, New Legislation and Regulations

On October 14, 2017, Governor Brown signed Assembly Bill 1008 (the “Fair Chance Act”).  The new law puts in place some protections for those individuals with criminal backgrounds seeking employment.  The new law will be contained in Section 12952 of the California Government Code.

Background.

Existing law prohibits an employer, whether a public agency or private individual or corporation, from asking an applicant for employment to disclose, or from utilizing as a factor in determining any condition of employment, information concerning an arrest or detention that did not result in a conviction, or information concerning a referral or participation in, any pretrial or post-trial diversion program, except in limited circumstances.

Existing law also prohibits a state or local agency from asking an applicant for employment to disclose information regarding a criminal conviction, except as specified, until the agency has determined the applicant meets the minimum employment qualifications for the position.

Summary of New Law.

The Fair Chance Act repeals the prohibition on a state or local agency from asking an applicant for employment to disclose information regarding a criminal conviction, as described above. Instead, the law now provides that it is an unlawful employment practice under California’s Government Code (in the “Fair Employment and Housing Act”) for an employer with 5 or more employees to do the following:

  • Include on any application for employment any question that seeks the disclosure of an applicant’s conviction history.
  • Inquire into or consider the conviction history of an applicant until that applicant has received a conditional offer of employment.
  • Consider, distribute, or disseminate any of the below information while conducting a conviction history background check in connection with an employment application:
    • Certain arrests not followed by a conviction;
    • Referrals to or participation in a pretrial or post trial diversion program; and
    • Convictions that have been sealed, dismissed, expunged, or statutorily eradicated.

Further, the new law requires that an employer who intends to deny an applicant a position of employment solely or in part because of the applicant’s conviction history to do the following:

  • Make an individualized assessment of whether the conviction history has a direct and adverse relationship with the specific duties of the job—considering the nature and gravity of the offense, the time passed since the offense and completion of the sentence, and the nature of the job held or sought.
  • Notify the applicant in writing of a preliminary decision to deny employment based on that individualized assessment, including disqualifying convictions forming the basis for rescission of the employment offer, a copy of the applicant’s conviction history report, and explanation of the applicant’s right to respond to the preliminary decision before it is final.
  • Allow the applicant five business days to respond to the notice. If within five business days of the notice, the applicant notifies the employer in writing that the applicant disputes the accuracy of the conviction history report that was the basis for the preliminary decision to rescind the offer and that the applicant is taking specific steps to obtain evidence supporting that assertion, then the applicant shall have an additional five business days to respond to the notice.

Ultimately, if an employer makes a final decision to deny an application solely or in part because of the applicant’s conviction history, the employer must notify the applicant in writing of all the following:

  • The final denial or disqualification. The employer may, but is not required to, justify or explain the employer’s reasoning for making the final denial or disqualification.
  • Any existing procedure the employer has for the applicant to challenge the decision or request reconsideration.
  • The right to file a complaint with the California Department of Fair Employment and Housing (DFEH).

The Fair Chance Act does not apply in any of the following circumstances:

  • To a position for which a state or local agency is otherwise required by law to conduct a conviction history background check.
  • To a position with a criminal justice agency, as defined in Section 13101 of the Penal Code.
  • To a position as a Farm Labor Contractor, as described in Section 1685 of the Labor Code.
  • To a position where an employer or agent thereof is required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history.

California Employers Should do the Following:

  • Review and update all employment application and hiring materials to ensure there are no questions requiring an applicant to disclose criminal conviction history.
  • Train all managers, supervisors, human resources, and other individuals involved in the recruitment and hiring process to ensure they are aware of the requirements under the new law.
  • Take other reasonable steps (e.g. periodic audits of recruitment and hiring practices) to ensure that they are in compliance with the law.

The Labor & Employment attorneys at Weintraub Tobin have extensive experience counseling and defending employers in all areas of employment law and are happy to assist employers in auditing their recruitment and hiring practices to ensure compliance with California law.  Please feel free to contact partner, Beth West, or any of the other Labor & Employment attorneys.

No More Questions About, Or Use Of, Prior Salary Information In Employment

Posted in Employee Privacy Rights, Labor Law, New Legislation and Regulations, Wage & Hour

On October 12, 2017, Governor Brown signed Assembly Bill 168.  Consistent with some other state laws and local ordinances passed by certain municipalities like San Francisco, the new law prohibits the inquiry and use of prior salary information except in limited situations.  The new law will be contained in Labor Code section 432.3 and becomes effective January 1, 2018.

The new law:

  • Prohibits an employer from relying on the salary history information of an applicant for employment as a factor in determining whether to offer an applicant employment or what salary to offer an applicant.
  • Prohibits an employer from seeking salary history information about an applicant for employment.
  • Requires an employer, upon reasonable request, to provide the pay scale for a position to an applicant for employment.

The new law does not prohibit:

  • An applicant from voluntarily (without prompting) disclosing salary history information.
  • An employer from considering or relying on voluntarily disclosed salary history information in determining salary, as specified.

The law applies to all employers, including state and local government employers and the Legislature.  However, it does not apply to salary history information disclosable to the public pursuant to federal or state law.

California employers should do the following before the January 1, 2018 effective date:

  • Review and update all employment application and hiring materials to ensure there are no questions requiring an applicant to disclose prior salary information.
  • Train all managers, supervisors, human resources, and other individuals involved in the recruitment and hiring process to ensure they are aware of the requirements under the new law.
  • Take other reasonable steps (e.g. periodic audits of hiring and payroll practices) to ensure that they are in compliance with this law and the California Equal Pay Act which requires equal pay for substantially similar work performed by employees of different genders, races, or ethnicities.

The Labor & Employment attorneys at Weintraub Tobin have extensive experience counseling and defending employers in all areas of employment law and are happy to assist employers in auditing their hiring and payroll practices to ensure compliance with California law.  Please feel free to contact partner, Beth West, or any of the other Labor & Employment attorneys.

US OSHA Opens Injury Tracking Electronic Portal

Posted in Employment Contracts and Agreements, Labor Law

By Charles L. Post

The U.S. Occupational Safety and Health Administration (U.S. OSHA) has established a new electronic portal for employers to file web based reports of workplace injuries or illnesses.

Read the full article at HRUSA here: http://blog.hrusa.com/blog/us-osha-opens-injury-tracking-electronic-portal/

Obama’s Overtime Rule Struck Down By Court

Posted in Labor Law, New Legislation and Regulations, Wage & Hour

A Texas federal court struck down a rule that would have expanded those eligible for overtime pay.  The Department of Labor’s rule would have required overtime pay to most salaried employees who earn less than $47,476 annually.  This would have been a dramatic increase from the current salary level of $23,660.  The rule was expected to have an extensive effect if implemented, to the tune of more than 4 million workers.  The same court had blocked the rule from being enforced in November 2016, but had not yet determined whether the rule was valid.  Over 55 business groups challenged the implementation of the rule, and were rewarded in the court’s August 31st ruling finding that the rule exceeded the Department of Labor’s authority.

ATTENTION EEO-1 EMPLOYERS –YOU DON’T HAVE TO REPORT PAY DATA TO THE EEOC IN MARCH 2018 AFTER ALL

Posted in Discrimination, Employee Privacy Rights, Labor Law, New Legislation and Regulations, Wage & Hour

On August 29, 2017, the Office of Information and Regulatory Affairs (OIRA) issued a memo to the EEOC advising that the Office of Management and Budget (OMB) is initiating a review and an immediate stay of the effectiveness of those aspects of the EEO-1 form that were revised on September 29, 2016. Those  revisions included new requirements for employers with 100 or more employees (and for employers who are federal contractors with 50 or more employees) to provide data on the wages and hours worked by their employees. The OIRA’s memo made clear that the EEOC may continue to use the previously approved EEO-1 form to collect data from covered employers on the race/ethnicity and gender of their employees during the review and stay period.

The memo explained that, among other things, the OMB is concerned that some aspects of the requirement to collect wage and hour information, lack practical utility, are unnecessarily burdensome, and do not adequately address privacy and confidentiality issues.

Following receipt of the OIRA’s memo, the EEOC immediately issued a statement that advised covered employers that the previously approved EEO-1 form which collects data on race, ethnicity and gender by occupational category will remain in effect, and that “[e]mployers should plan to comply with the earlier approved EEO-1 (Component 1) by the previously set filing date of March 2018.”  Despite this current stay in the requirement to report pay data, the EEOC said that it remains committed to strong enforcement of federal equal pay laws and hopes the OMB’s decision “…will prompt a discussion of other more effective solutions to encourage employers to review their compensation practices to ensure equal pay and close the wage gap.”

The Labor & Employment attorneys at Weintraub Tobin will continue to follow the OMB’s review process and EEO-1 employers should stay tuned for further developments.

New Nevada Domestic Violence Leave Law Broader Than FMLA

Posted in FMLA and Other Leaves of Absence

Beginning January 1, 2018, a Nevada employee who has been employed for at least 90 days and who is a victim of an act of domestic violence or whose family member or household member is a victim of an act of domestic violence (provided the employee is not the perpetrator), is entitled to a maximum of 160 hours of leave in one 12-month period.

Domestic violence is defined under Nevada Revised Statutes (NRS) 33.018 as follows:

Domestic violence occurs when a person commits one of the following acts against or upon the person’s spouse or former spouse, any other person to whom the person is related by blood or marriage, any other person with whom the person is or was actually residing, any other person with whom the person has had or is having a dating relationship, any other person with whom the person has a child in common, the minor child of any of those persons, the person’s minor child or any other person who has been appointed the custodian or legal guardian for the person’s minor child: (a) A battery; (b) An assault; (c) Compelling the other person by force or threat of force to perform an act from which the other person has the right to refrain or to refrain from an act which the other person has the right to perform; (d) A sexual assault; (e) A knowing, purposeful or reckless course of conduct intended to harass the other person; (f) A false imprisonment; or (g) Unlawful entry of the other person’s residence, or forcible entry against the other person’s will if there is a reasonably foreseeable risk of harm to the other person from the entry.

The new Nevada domestic violence leave law is broader than the Family and Medical Leave Act (FMLA), as it applies to all private employers in the state of Nevada, not just those with at least 50 employees within 75 miles of the worksite. If applicable, the Nevada domestic violence leave must be deducted concurrently from leave permitted under FMLA.

Read the full article at HRUSA here: http://blog.hrusa.com/blog/new-nevada-domestic-violence-leave-law-broader-than-fmla/.

San Francisco Passes “Lactation in the Workplace Ordinance”

Posted in Discrimination, Employee Privacy Rights, Labor Law, New Legislation and Regulations, Wage & Hour

On June 30, 2017, San Francisco’s Mayor Ed Lee signed an ordinance, providing employees in the City of San Francisco with additional lactation rights.  The “Lactation in the Workplace Ordinance,” will take effect on January 1, 2018 and applies to all City employees, including those who work part-time.  The ordinance is similar to existing state and federal law, but contains additional requirements.

What Does The Ordinance Require?

Location Specifics

Employers must provide a lactation location other than a bathroom that is in close proximity to the employee’s work area.  The location must be shielded from view and free from intrusion from co-workers and the public.   It must have the following features:

1)      Safe, clean, and free of toxic or hazardous materials;

2)      Contain a surface (e.g. a table or shelf) to place a breast pump and personal items;

3)      Contain a place to sit;

4)      Have a door that locks from within;

5)      Be at least 50 square feet; and

6)      Have at least one electrical outlet per lactation station.

The room must be located within 500 feet or two adjacent floors from the farthest employee it is designated to serve.  The employer must also provide a refrigerator where the employee can store breast milk and access to a sink with running water

The lactation location can be a room that is also used for other purposes, so long as the employer provides notice that the primary use of the room is for lactation which takes precedence over other uses.

An employer may be exempt from the ordinance’s requirements if it can establish that the requirements would impose an undue hardship (significant expense or operational difficulty in relation to the employer’s size, financial resources, nature, location, or physical space).

            Employer Policy

Employers must develop and implement a written Lactation Accommodation Policy.  The policy must:

1)      State that employees have a right to request lactation accommodation,

2)      Identify a process by which an employee may request lactation accommodation, (including how an employee may submit a request, a requirement that the employer respond within 5 business days, and a requirement that the employer and employee engage in an interactive process to determine the appropriate lactation breaks and location);

3)      If the employer is exempt from the ordinance’s requirements, the employer must state the basis for denial of the lactation accommodation; and

4)      Prohibit retaliation against an employee for exercising her rights under this ordinance.

The Lactation Accommodation Policy must be distributed to all employees upon hiring and offered to any employee who asks about or requests pregnancy or parental leave.  If the employer has an employee handbook or policies, the Lactation Accommodation Policy must be included.

Employer Record Retention Requirement

Employers are required to maintain specific records of requests for lactation accommodation made pursuant to the employer’s policy, for 3 years.

            Enforcement and Penalties

San Francisco’s Office of Labor Standards Enforcement (OLSE) is charged with enforcing the law and giving notices to correct.  After a one-year grace period, beginning January 1, 2019, the OLSE may impose administrative penalties up to $500 for each violation

Existing State and Federal Requirements

The ordinance combines and expands upon existing federal and state laws that already address lactation in the workplace.  (See 29 U.S.C §207(r); Cal. Labor Code 1030-1033.)  Among other expansions of the law, neither federal nor California law currently requires as many specific features of the lactation room, a formal written policy, or recordkeeping and retention.

Please consult legal counsel for details regarding the ordinance’s specific requirements.  We recommend reviewing and updating your existing lactation accommodation policies before January 1, 2018.

New Florida Law Allows Patients To Use More Potent Pot

Posted in New Legislation and Regulations

High times at Florida workplaces may or may not become more prevalent with a new law that allows the medical use of stronger marijuana by a greater number of patients.

The legal use of medical marijuana is not completely new there.  In 2014, Florida legalized the medical use of low-THC cannabis by patients who are terminally ill with less than a year to live.  In November 2016, Floridians went to the ballot box and voted in by a super majority the Medical Marijuana Legalization Initiative, also known as Amendment 2.  The passage of that ballot initiative allowed medical marijuana to be given to patients so long as a physician believes the medical benefits of using marijuana outweigh the potential health risks.

Read the full article at the HRUSA Blog here: http://blog.hrusa.com/blog/new-florida-law-allows-patients-to-use-more-potent-pot/.

San Francisco Adopts the “Parity in Pay” Ordinance – No More Inquiries About or Disclosures of Prior Salary

Posted in Employment Contracts and Agreements, Labor Law, New Legislation and Regulations, Wage & Hour

On July 19, 2017 Mayor Lee signed the Parity in Pay Ordinance.   Below is a brief summary of the Ordinance which will go into effect on July 1, 2018.

  • The Ordinance provides findings from the 2015 United States Census Bureau report that show that in San Francisco women are paid on average 84 cents for every dollar a man makes. Women of color are paid even less. African American women are paid only 60 cents to each dollar paid to men. Latinas are paid only 55 cents to each dollar paid to men. The Ordinance finds that the problematic practices of seeking salary history from job applicants and relying on their current or past salaries to set employees’ pay rates contribute to the gender wage gap by perpetuating wage inequalities across the occupational spectrum.
  • The Ordinance shall cover all Applicants within the geographic boundaries of the “City” (which is defined as both the city and county of San Francisco) and whose application, in whole or part, will be solicited, received, processed or considered, whether or not through an interview, in the City. However, the ordinance will not apply to a person applying for employment with their current employer.
  • “Employers” covered by the Ordinance include: any individual, firm, corporation, partnership, labor organization, group of persons, association, or other organization however organized, which is or should be required to be registered to do business in the City. Job placement and referral agencies and other employment agencies are also covered. Except for the City, other local, state and federal employers are not covered.

Prohibitions under the Ordinance.

  • An Employer shall not consider or rely on an Applicant’s Salary History as a factor in determining whether to offer employment to an Applicant or what Salary to offer an Applicant.
  • An Employer shall not inquire about an Applicant’s Salary History.
  • An Employer shall not refuse to hire or otherwise disfavor, injure, or retaliate against an Applicant for not disclosing his or her Salary History to the Employer.
  • An Employer shall not release the Salary History of any current or former employee to that person’s Employer or prospective Employer without written authorization from the current or former employee unless the release of Salary History is required by law, is part of a publicly available record, or is subject to a collective bargaining agreement.
  • “Salary” means an Applicant’s financial compensation in exchange for labor, including but not limited to wages, commissions, and any monetary emolument.
  • “Salary History” means an Applicant’s current and past Salary in the Applicant’s current position, or in a prior position with the current Employer or a prior Employer. Salary History does not include any objective measure of the Applicant’s productivity such as revenue, sales, or other production reports.
  • Where an Applicant voluntarily and without prompting discloses Salary History to a prospective Employer, or provides written authorization for such information to be disclosed from a former employer, nothing in the Ordinance prohibits the Employer from considering that voluntarily disclosed Salary History in determining Salary for such Applicant or verifying such Applicant’s Salary History. However, Salary History by itself shall not be used to justify paying any employee of a different sex, race or ethnicity less than such Applicant or prospective employee for doing substantially similar work under similar working conditions in accordance with California Labor Code section 1197.5.

Notice and Posting Requirements.

  • Before the Ordinance goes into effect in July 2018, the San Francisco Office of Labor Standards Enforcement (OLSE) shall publish and make available to Employers in English, Spanish, Chinese, and all languages spoken by more than 5% of the workforce in San Francisco, a notice suitable for posting by Employers in the workplace informing Applicants and employees of their rights under the Ordinance.
  • Employers must post the OLSE notice in a conspicuous place at every workplace, job site, or other location in the City or on City property under the Employer’s control and frequently visited by their employees or Applicants, and shall send a copy of the notice to each labor union or representative of workers, as applicable.

Enforcement and Penalties.

  • From July 1, 2018 through June 30, 2019, the OLSE will issue a warning and notice to correct if the Ordinance is violated.
  • Starting July 1, 2019, for any subsequent violation other than a first violation (including a first violation occurring before that date), the OLSE may impose an administrative penalty of no more than $100 that the Employer must pay to the City for each employee or Applicant to whom the violation occurred. Thereafter, for subsequent violations occurring within 12 months of that violation, the penalty may increase to no more than $200 for the second violation, and to no more than $500 for each additional violation. The penalty shall be payable to the City for each employee or Applicant whose rights were violated.
  • The OLSE may also initiate an administrative action against an Employer. Before the effective date of the Ordinance in July 2018, the OLSE will establish rules and procedures for the administrative process. The OLSE may also refer matters to the City Attorney who may initiate a civil action.

More details regarding the Parity in Pay Ordinance can be found at: https://sfgov.legistar.com/View.ashx?M=F&ID=5282302&GUID=9B58E3DF-EBD7-46FC-BFFB-32E073CFF9E0

Revised Form I-9 Issued by the USCIS

Posted in Employee Privacy Rights, Labor Law, New Legislation and Regulations, Wage & Hour

On July 17, 2017, the United States Citizenship and Immigration Service (“USCIS”) released a revised version of the Form I-9, Employment Eligibility Verification.  Instructions for how to download Form I-9 are available on the USCIS Form I-9 page. Employers can use this revised version immediately or continue using Form I-9 with a revision date of 11/14/16 N through September 17th.  However, beginning September 18, 2017, employers must use the revised form with a revision date of 07/17/17 N.  Also, employers must continue following existing storage and retention rules for any previously completed Form I-9.

The USCIS publication regarding the revised form summarizes the changes to the Form I-9 as follows:

Revisions to the Form I-9 instructions:

  • We changed the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, Immigrant and Employee Rights Section.
  • We removed “the end of” from the phrase “the first day of employment.”

Revisions related to the List of Acceptable Documents on Form I-9:

  • We added the Consular Report of Birth Abroad (Form FS-240) to List C. Employers completing Form I-9 on a computer will be able to select Form FS-240 from the drop-down menus available in List C of Sections 2 and 3. E-Verify users will also be able to select Form FS-240 when creating a case for an employee who has presented this document for Form I-9.
  • We combined all the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) into selection C #2 in List C.
  • We renumbered all List C documents except the Social Security card. For example, the employment authorization document issued by the Department of Homeland Security on List C changed from List C #8 to List C #7.

The USCIS also revised the Handbook for Employers: Guidance for Completing Form I-9 (M-274), which helps employers navigate the requirements for compliance with Form I-9 obligations.

More information can be obtained at: https://www.uscis.gov/news/alerts/revised-form-i-9-now-available.