2018 is now fully upon us. And with the beginning of a new year, one certainty is that there will be new employment laws to become familiar with in California. Below is an overview of three new laws related to salary history inquiries, criminal history inquiries, and parental leave that employers should understand and begin implementing this month.
SB 63 – Expanded Parental Leave
Before 2018, the Family Medical Leave Act (“FMLA”) and the California Family Rights Act (“CFRA”) required employers with fifty or more employees to provide up to twelve weeks of unpaid leave leave for a number of reasons, including the employee’s own serious health condition; the employee’s need to care for certain family members with a serious health condition; and the employee’s need to bond with a new child.
Senate Bill 63 – entitled the New Parent Leave Act – now extends the right to up to twelve weeks of unpaid leave to employees of smaller employers – those with at least twenty employees – for the employee to bond with a new child. The same tenure-of-employment criteria still apply to such leave as currently exist under FMLA and CFRA. Namely, any employee wishing to take such protected leave must have worked at least 1,250 hours for the employer in the twelve-month period preceding the beginning of the leave period.
Under the New Parent Leave Act, the employer must also continue to pay for any coverage for the employee under a group health plan on the same terms and conditions as were offered to the employee before the leave began. Additionally, while the employer must allow the employee to use any accrued vacation leave, sick leave, or paid time off, such leave is otherwise unpaid. The New Parent Leave Act does not provide additional protected leave rights to employees of employers with between twenty and forty-nine employees for the employee’s own serious health condition or to care for family members with serious health conditions.
AB 1008 – “Ban the Box” Expanded Statewide
In 2013, California passed legislation prohibiting state agencies and subdivisions (such as cities and counties) from asking job applicants about past criminal convictions. In 2015 under a directive from President Obama, federal agencies adopted the same prohibition. These have colloquially come to be known as “ban the box” laws as they prohibit asking a job applicant if he or she has any prior convictions, which typically occurs by asking the applicant to check a box “yes” or “no.”
Under Assembly Bill 1008, the prohibitions related to conviction history inquiries will now apply to all California employers with five or more employees. As of January 1, 2018, Employers are prohibited from making any inquiries into conviction histories until at least a provisional offer of employment has been extended to the prospective employee.
At the point such an offer has been made, conviction history inquiries become possible but with several caveats:
First, several types of incidents that may show up on a background check may not be considered by the employer. These include arrests not followed by a conviction, referrals to participation in a pretrial diversion program, and convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.
Second, if the employer intends to deny any applicant a position based on a conviction, this may only be done following an assessment that considers a number of individual factors. These factors include the nature and gravity of the offense, the time that has lapsed since the conviction, and the nature of the job.
Third, if the employer makes a decision that the conviction is disqualifying, the applicant must be notified of the decision in writing. This notice must include a copy of the conviction history report that was relied upon, if any, and explain to the applicant that he or she may respond to the notice before the decision becomes final. If the applicant submits an explanation in response to the notice, the employer must then consider this explanation. If the employer still decides the conviction is disqualifying, then the employer must again notify the applicant in writing of its decision. This notification must further explain to the applicant that he or she has the right to file a complaint with the California Department of Fair Employment and Housing regarding the employer’s decision.
AB 168 – Salary History Information
Also newly effective as of January 1, 2018, is Assembly Bill 168, which places restrictions on information an employer may seek from an applicant for employment related to past salary history. Under this new law, an employer may not ask about or rely on salary history information in determining whether to offer a job to an applicant or what salary to pay that applicant. This new law also obligates an employer to provide a pay scale for the position applied for upon the applicant’s request. There is an exception to this prohibition, however – if the applicant voluntarily discloses past salary history to the prospective employer, the employer may then consider this salary history in setting the employee’s salary.
As detailed above, the landscape of employment laws in California is constantly expanding, and in many cases these new laws create new and nuanced administrative responsibilities for employers. While sometimes seeming onerous, failing to understand and properly adhere to the requirements of these new laws can result in employer liability. We here at Scherer Smith & Kenny LLP remain available to address any questions you may have related to these new laws and any other employment- or business-related issues. For additional information, please contact Denis Kenny at (dsk@sfcounsel.com), Ryan Stahl at (rws@sfcounsel.com), or John Lough, Jr. at (jbl@sfcounsel.com).
– Written by Ryan Stahl