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.

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.

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/

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.

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.