Employment Law Updates for 2018 (Part 1)- "Ban the Box", Past Salary History and Baby Bonding Leave
Employment Laws Changing in 2018:
By: Autumn D. Moody, Esq., M.S.B.A
There are some major changes in the law happening January 1, 2018 that will affect small businesses. Here are just a few of them that will affect your human resources and employment policies:
"Ban the Box":
California employers will need to update their training for anyone involved with hiring new employees and modify job applications. Private sector employers can no longer ask about an applicant's criminal conviction history on an employment application questionnaire. California is now the 10th state to "Ban-the-Box" on employment applications. The law (A.B. 1008), signed by Governor Brown on October 14, 2017, prohibits most public and private sector employers with five or more employees from asking about criminal conviction histories until after a conditional offer of employment has been made unless the position is required by law to undergo employment screening. If an employer wants to deny an applicant the position based on criminal conviction history upon further review after making a conditional offer, the employer must make an individualized assessment and provide the applicant with an opportunity to respond before making a final decision. If the employer's final decision is to still deny the applicant, the employer is required to provide a second written notification to the applicant containing information that the decision is final, and notice of any existing procedure to challenge the decision or request reconsideration, as well as the right to file a complaint with the California Department of Fair Employment and Housing. The impact of this law on small businesses could mean a deal in the hiring process and increase in administrative burden for human resources personnel. Employers could also face the risk of negligent hiring lawsuits due to this change in the law. Employers can take the following steps immediately to mitigate risk:
- Update employment applications and remove questions related to criminal conviction history
- Train anyone responsible for hiring new employees so they are aware that no inquiries can be made into criminal conviction history until after a conditional offer has been made to an applicant
- Train anyone responsible for hiring or conducting background investigations on behalf of your business into the types of information that may be obtained related to conviction history information.
- Train anyone responsible in the hiring decision on the factors that must be considered when determining if prior convictions disqualify someone.
- Work with an attorney to develop protocols and notices for the hiring process for potentially disqualifying convictions.
- Speak with an attorney to determine if there are any local municipal ordinances that affect employers.
Questions About Past Salary History Are Off Limits:
A.B. 168 bars employers from requesting pay history from job applicants, starting January 1, 2018. If an applicant voluntarily provides the information, then the employer may consider the salary history. Employers are also now required to give applicants the pay scale for a position upon request. San Francisco recently passed an ordinance that will take effect July 1, 2018. The policy reasons for the law are based on wage discrimination from prior jobs that may allow carryover to another job if an employer is allowed to inquire into past salary history. The challenge for employers and small businesses is that unless they have access to this information it will be difficult to know if they are matching the the current market rate, below the market rate, or much higher. Human Resources personnel should review the company's employment applications to ensure that they do not inquire into prior salary history. Additionally, hiring policies should also be reviewed to ensure that prior salary history is not relied upon in making hiring decisions.
Baby Bonding Leave Must be Provided by Small Businesses:
Governor Jerry Brown signed the New Parent Leave Act (S.B. 63) into law on October 12, 2017, which requires employers with at least 20 employees to provide employees with 12 weeks of unpaid, job-protected parental bonding leave. The law takes effect starting January 1, 2018. S.B. 63 includes a two-year pilot mediation program and provides employers the ability to recover health benefit premiums paid for employees who do not return to work following a leave of absence under the act.
The act applies to employers that directly employ 20-49 employees within 75 miles of each other. The employees must have more than 12 months of service and at least 1, 250 hours of service with the covered employer during the 12-month period prior to commencing the leave in order to be eligible. The act does not apply to employees who are covered by both the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA), both of which already provide 12 weeks of unpaid, protected leave for baby bonding to eligible employees of employers with at least 50 employees. CFRA regulations do apply to the act to the extent they are within the scope of the act and not inconsistent with the act.
Under the new act, the employer is obligated to provide 12 weeks of unpaid parental leave upon the request of eligible employees to bond with a new child during the first year of the child's birth, adoption or foster care placement. Employees can use any type of accrued paid time off, such as vacation or sick leave, during the parental leave. Employers must guarantee employment in the same or comparable position upon the employee's return from leave. Employers must also maintain and pay for the employee's continued coverage under a group health plan at the level and under the same conditions had the employee continued to work. If an employee fails to return to work following the leave, the employer is entitled to recover their portion of the premium, so long as it was not due to a serious health condition or circumstances beyond the control of the employee. If both parents are employed by the same employer, they are entitled to a combined 12 weeks of leave under the act.
Employers are prohibited from retaliating or discriminating against any employee for taking parental leave and from interfering with or denying an employee their right to leave under the act.
Small businesses could be significantly impacted by the New Parental Leave Act and should take the following steps before the new law takes effect:
- Determine whether your business is covered under the act.
- Speak with your attorney to prepare a leave of absence policy that complies with the new law.
- Prepare leave of absence forms and procedures
- Conduct training with human resources personnel and managers about the requirements under the act, especially with respect to no retaliation or discrimination.