The laws about what employers can ask job applicants continue to evolve. Here are four areas of inquiry that are not allowed:

  1. Questions about prior salary – With the passage of AB 168, effective January 1, 2018, employers cannot ask applicants for employment about salary history information, including information about compensation and benefits.
  2. Questions about criminal convictions before making a conditional offer of employment – Following the leads of San Francisco and Los AngelesAB 1008 prohibits employers with five or more employees from:
    • Asking on employment applications about criminal convictions;
    • Asking applicants about criminal convictions before making a conditional offer of employment;
    • When conducting background checks on applicants, considering, distributing, or disseminating information about prior arrests not leading to conviction, participation in diversion programs, or convictions that have been sealed, dismissed, expunged, or otherwise nullified. Employers who wish to rely on criminal conviction information to withdraw a conditional job offer must notify the applicant of their preliminary decision, give them a copy of the report (if any), explain the applicant’s right to respond, give them at least five business days to do so, and then wait five more business days to decide what to do when an applicant contests the decision. There are exceptions for employers who operate health facilities hiring employees who will have regular access to patients or drugs.
  3. Questions about membership in protected categories – These questions have been prohibited in some cases for over 50 years. But too many interviewers don’t understand the nuances. Inappropriate questions include:
    • What kind of name is that?
    • What’s your maiden name?
    • How old are you?
    • Do you live alone?
    • Who do you live with?
    • What year did you graduate?
    • How old are your children?
    • Do you plan to have children?
    • What church do you attend?
    • What does your spouse do?
    • Is English your first language?The DFEH published this handout discussing these issues and listing other improper questions.
  4. Medical inquires before an offer of employment – At the pre-offer stage, employers may not make generalized inquiries about a job applicant’s health, present medical condition, or any disability. Nor may employers conduct medical or psychological exams at the pre-offer stage or ask about medical history, on-the-job injuries, workers’ compensation claims, or absences due to illness. The EEOC announced this month that it settled a suit with a staffing agency regarding pre-offer medical inquiries.

Make sure that the people interviewing for your organization are up to date on what areas of inquiry are not allowed.

It’s time once again for the annual roundup of new California employment laws. Since we’ve discussed many of these laws when they were enacted, I’m including links to those earlier discussions.

  • Stop asking about salary history – AB 168 bars employers from asking job applicants about their previous salary. The legislation’s goal is to narrow the gender gap by preventing employers from basing offers on prior salary and thus, presumably, perpetuating historical discrimination. This will also remove the perceived gap in negotiating power between an employers and employees who must disclose their prior salary. Employers should ensure that their job applications don’t seek prohibited information and that those interviewing applicants know not to ask these questions.
  • More employers must offer parenting leave – SB 63, officially titled the Parental Leave Act, requires employers with between 20 and 49 employees to offer parenting leave that mirrors the Family Medical Leave Act. The new Act allows employees who work for a covered employer to take 12-weeks of unpaid, job-protected leave if they have worked a minimum of 1,250 hours in the 12-months prior to taking leave.  Employees can take leave only for the purpose of bonding with a newborn child, adopted child or foster child within a year of the birth or placement. Covered employers will also need to maintain health coverage under the same terms as an active employee. The Act also prohibits discrimination and retaliation against an employee for taking parental leave.The Parental Leave Act does not require employers to pay any portion of the leave but requires that employees be able to use accrued sick and vacation time. Employees can apply to have a portion of the parental leave paid for through the state’s Paid Family Leave program.  As we’ve previously explained, San Francisco requires some employers to pay a remaining portion of parental leave.
  • Expanded harassment training – California requires at least biannual harassment training for supervisors in companies with 50 or more employees. Having given a dozen sessions of the  training in the last month, I can assure you that there’s no shortage of material to talk about. But as of January 1, 2018, SB 396 requires that the training include information on gender identity, gender expression, and sexual orientation. If your handbook doesn’t specifically prohibit discrimination and harassment on those bases, you’re overdue for a revision.
  • Ban the box – Following the leads of San Francisco and Los Angeles, AB 1008 prohibits employers with five or more employees from:
    • Asking on employment applications about criminal convictions;
    • Asking applicants about criminal convictions before making a conditional offer of employment;
    • When conducting background checks on applicants, considering, distributing, or disseminating information about prior arrests not leading to conviction, participation in diversion programs, or convictions that have been sealed, dismissed, expunged, or otherwise nullified.

Employers who wish to rely on criminal conviction information to withdraw a conditional job offer must notify the applicant of their preliminary decision, give them a copy of the report (if any), explain the applicants right to respond, give them at least five business days to do so, and then wait five more business days to decide when an applicant contests the decision. There are exceptions for employers who operate health facilities hiring employees who will have regular access to patients or drugs.

  • Minimum wage increases – On January 1, 2018, the California state minimum wage goes up to $11.00 per hour for businesses with 26 or more employees and $10.50 per hour for smaller companies. The inimitable Sahara Pynes discusses which cities are raising their minimum wages here.

Takeaway: The burdens of employing people in California continue to increase. As a result, it becomes increasingly important for employers to be proactive in determining before they get sued where they’re vulnerable. In terms of time, expense, stress, disruption, and damage to a company’s reputation, an audit of HR practices is way cheaper than a lawsuit.

Takeaway 2: Happy 2018!

If you’re a city contractor or private employer in the City of Los Angeles with 10 or more employees, starting January 22, 2017 you will be subject to new restrictions on how you deal with job applicants’ criminal histories. The only employers exempt from these requirements will be those that are required by law to obtain conviction information, are prohibited by law from hiring applicants convicted of a crime, are seeking to fill positions that applicants with convictions are prohibited from holding, or that are filling positions where employees are required to possess or use firearms. All other employers should prepare to take the following steps:

1. Eliminate any questions in your employment applications about criminal histories. Make sure that your recruiters and interviewers also know not to make such inquiries.

2. Include language in all solicitations or advertisements seeking applicants that you will consider qualified applicants with criminal histories in a manner consistent with the Los Angeles Fair Chance Initiative for Hiring.

3. Post a notice informing applicants for employment about the LA Fair Chance Initiative at each workplace, job site, or other location in the City of Los Angeles under your control that job applicants visit. If you have unionized workers, you must also send a copy to the union representing those workers. The City of LA will presumably make such a notice available.

4. Put a “Fair Chance Process” in place. Specifically, after you’ve made a conditional offer of employment, you may ask the applicant about criminal convictions. But you may not withdraw the application based on the response without:

(a) Completing a written assessment that explains the link between the applicant’s criminal history and the risks inherent in the position applied for. This assessment must include discussion of the nature of the offense or conduct that led to the conviction; the time that has passed since the conviction or release from incarceration; and the nature of the position sought. The ordinance allows the Department of Public Works, Bureau of Contract Administration to add to this list of factors in the future.

(b) If you are considering withdrawing a conditional offer of employment, you must first provide the applicant written notice, a copy of the written assessment you created, and any other documents or information supporting the decision. You must then give the applicant five business days to provide any information regarding rehabilitation or other mitigating factors. You must hold the position open during that time.

(c) If the applicant provides such information, you must consider it and complete a written reassessment.

Copyright: welcomia / 123RF Stock Photo
Copyright: welcomia / 123RF Stock Photo

(d) If you still decide to withdraw the offer, you must then notify the applicant in writing and provide a copy of the reassessment.

5. Maintain all relevant records for three years after receipt of an application for employment.

While the ordinance takes effect January 22, 2017, any violation before July 1, 2017 will result only in a written warning. After that date, employers who make prohibited inquiries are subject to fines of $500 to $2,000 per violation. The fine for failing to include language in an employment advertisement or job posting or for failing to maintain the required records will be $500 per violation. Applicants can also bring civil actions to enforce the ordinance.

LA is not the first city to adopt “Ban the Box” requirements. San Francisco did so in 2014. But LA’s ordinance seems to be the most demanding. Employers are well-advised to consult qualified employment counsel to ensure that they have proper procedures in place for dealing with applicants with criminal backgrounds.

Starting August 13, 2014, employers with 20 or more employees (regardless of location) will be prohibited from asking applicants for jobs in San Francisco certain questions about prior convictions. I explained what inquiries are prohibited here.

Now the Office of Labor Standards Enforcement (which will enforce the Fair Chance Ordinance) has issued the English version of the notice that employers must display in a conspicuous place at “every workplace. job site, or other location in San Francisco under the Employer’s control frequently visited by their employees or applicants.” Employers must also “send a copy of this notice to each labor union or representative of workers with which they have a collective bargaining agreement or other agreement or understanding that is applicable to employees in San Francisco.”

Employers must post the notice in each language that is spoken by more than 5% of their workers at that site. The OLSE will hopefully make foreign language versions available before the August 13, 2014 deadline. Finally, employers must give a copy of the notice to an applicant before asking about prior convictions.

We’ll continue to update you as new information becomes available. In the meantime, you can find the notice here.

Jailhouse Bird

San Francisco’s new “Ban the Box” ordinance takes effect on August 13, 2014. On that date, employers with 20 or more employees (regardless of location) will be prohibited from asking applicants for jobs in SF questions about:

  • An arrest that didn’t lead to conviction (they can ask about unresolved arrests, i.e. those that are the subject of an active pending criminal investigation or trial);
  • Participation in diversion or deferral of judgment programs;
  • Convictions that have been “judicially dismissed, expunged, voided, invalidated or otherwise rendered inoperative;”
  • Juvenile convictions;
  • Convictions that are more than 7 years old; or
  • Convictions for offenses that are not felonies or misdemeanors, e.g. infractions.

The ordinance prohibits any inquiry about criminal history at the beginning of the hiring process, including on job applications. Employers can only ask for this information after a “live interview” (which can be by phone) or after a conditional job offer’s been made. The Office of Labor Standards Enforcement will also be creating a notice that employers must provide the applicant before any such inquiry and a notice employers must post.

If the employer does obtain information about a conviction or unresolved arrest, it can only use the information if it’s directly related to the job and it considers mitigating factors. There are also specified procedures for giving the applicant notice of a proposed adverse action and letting him or her provide information in response.

During the first year the ordinance is in effect, the OLSE can only issue warnings and notices to correct. After that, a first violation will result in a warning, there will be  a $50 penalty for a second violation, and a $100 penalty for each violation thereafter. Only the OLSE can bring a claim. There is no private right of action.

For those of you keeping score at home, businesses choosing to locate in SF now face the highest minimum wage, a paid sick leave ordinance, a Family Friendly Workplace Ordinance, and requirements for commuter benefits and per-employee spending on health care. Is the goal to drive businesses out completely?