More Employment Law Changes Effective July 1

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If employers thought that summer was a time to relax, think again. California has enacted several more items of legislation which take effect on July 1st.

So, in addition to the minimum wage increase we discussed in our last article, the new laws going into effect on July 1, 2017 pertain to:

New Poster and Time off for Domestic Violence Issues

Employers with 25 or more employees are expressly prohibited from taking any discriminatory action against employees who take time off for any of the following reasons relating to domestic violence:
  • seeking medical attention for injuries caused by domestic violence, sexual assault, or stalking;
  • obtaining services from a domestic violence shelter, program, or rape crisis center as a result of domestic violence, sexual assault, or stalking;
  • obtaining psychological counseling for domestic violence, sexual assault, or stalking; or
  • participating in safety planning or other actions (including temporary or permanent relocation) to increase safety from domestic violence, sexual assault, or stalking.

Employees taking time off for any of these reasons are required to provide their employer with reasonable advance notice of such time off, unless the advance notice is not feasible. If advance notice is not feasible, then the employee remains protected from any negative consequence in their employment, if they provide the employer, within a reasonable time after the absence, a certification that the reason for leave was one of the protected reasons enumerated above.

Employers are required to maintain as confidential the reason the employee was absent.

Employers are required to notify their employees of workplace rights regarding domestic violence victims and the Labor Commissioner has published a notice form for this purpose.

Click here for a copy of the notice.

New Criminal Background Check Regulations

On July 1, the Fair Employment and Housing Council will begin to enforce new regulations which impose additional burdens on an employer’s use of criminal background checks in employment decisions.

Employers who maintain “no-hire policies” for individuals with any type of criminal conviction, without further individualized assessment, are at risk that such policies are improper under these new regulations.

Further, while employers can consider certain criminal information, they may be subject to liability if the hiring practice disproportionately affects members of a protected class (such as race, national origin or gender) unless the policy or practice is found to be both “job-related” and “consistent with business necessity”.

The regulations, entitled Consideration of Criminal History in Employment Decisions identify two ways an employer could justify their policy in their decision making process:

(1)  show that a “bright-line” disqualification properly distinguishes those who do and do not pose an unacceptable level of risk;

(2)  conduct individual assessments of the individual’s qualifications.

The California Code of Regulations provide that the following factors should be considered:

(A)  The nature and gravity of the offense or conduct;

(B) The time that has passed since the offense or conduct and/or completion of the sentence; and

(C) The nature of the job held or sought

The new regulations also require employers to give candidates notice before making an adverse employment decision (e.g. decision not to hire, promote or transfer) and to allow the candidate a reasonable opportunity to present evidence that the conviction is factually inaccurate. If evidence of factual inaccuracy is shown, then the conviction cannot be considered in the employment decision. Any policy regarding the use of criminal background checks should be reviewed for compliance under the new regulations.

Click here for the full text of the regulations.

Los Angeles’ “Ban-the-Box” Ordinance

As a reminder, for those in the City of Los Angeles, the rules are even more stringent under the Fair Chance Ordinance (referred as the “Ban-the-Box” ordinance). Penalties and fines for violating Los Angeles municipal rules will be assessed as of July 1, 2017.

Under the Ban-the-Box ordinance, employers are prohibited from inquiring about applicant’s criminal convictions until after a conditional offer of employment has been made. Only then may employers request information regarding the applicant’s criminal history. The conditional offer can only be withdrawn because of the applicant’s criminal history after the employer engages in the “Fair Chance Process” which requires employers to prepare a written assessment demonstrating how the applicant’s criminal history poses a risk to the duties of the position sought.

The applicant must be provided with notice of this assessment and given an opportunity to respond; the employer cannot terminate the conditional offer or fill the position until five business days after the applicant is given the written assessment.

A violation of the Fair Chance Initiative carries a maximum penalty of $2,000 per occurrence. Exceptions to these ordinances include:
  • employers required by law to review an applicant’s criminal history;
  • positions for which an applicant would be required to possess or use a firearm;
  • positions which, by law, cannot be held by an individual with a criminal history; and
  • employers that are prohibited, by law, from hiring persons with criminal convictions.
Because of the timing of the inquiry, any question on job applications inquiring about criminal convictions should be deleted.

Fair Employment & Housing Council Publishes
Regulations on Transgender Rights

Currently, California law protects individuals from harassment or discrimination on the basis of gender identity or gender expression or because an individual is transgender, transitioning or transitioned. California law also specifically protects an employee’s right to appear or dress consistently with his/her gender identity or gender expression.

As of July 1st these regulations are expanded so that:
  • it is unlawful to discriminate against an individual who is transitioning, has transitioned or is perceived to be transitioning,
  • employers honor an employee’s request to be identified by a preferred gender or name, or pronoun, including gender-neutral pronouns,
  • employers are forbidden from imposing any appearance, grooming or dress standards inconsistent with an individual’s gender identify and gender expression,
  • employer is prohibiting from making inquiries that, directly or indirectly, identify an individual on the basis of sex, gender, gender identity or gender expression,
  • an employer is forbidden from making any inquiry about, or require documentation or proof of an individual’s sex, gender, gender identity or gender expression as a condition of employment,
  • employers provide equal access to comparable, safe and adequate facilities without regard to the sex of the employee. Specifically,
    •  All employees have the right to use a facility that corresponds to the employee’s gender identity or gender expression, regardless of the employee’s assigned sex at birth.
    • The term “facility” is more than a bathroom — the term is meant to encompass other types of employer facilities, such as an employer locker room with a showering area.
The new regulations also address privacy concerns that employees may have. To protect the privacy interests of all employees, the regulations require employers to provide feasible alternatives, such as:
    • Locking toilet stalls.
    • Staggered schedules for showering.
    • Shower curtains.
    • Other feasible methods for ensuring privacy.

Click here for a full copy of the regulations.

What Should You Do Now?
  • Review and update equal employment opportunity and anti-harassment policies, as necessary.
  • Review and update appearance and dress code policies to ensure that the policies are gender-neutral. Do not impose dress, grooming or appearance standards which are inconsistent with an individual’s gender identity or expression.
  • Review employment applications and other forms to remove requests to identify sex or gender. If you need the information for government reporting, seek it on a voluntary basis only.
  • If you have a single user restroom ensure that the poster has been put in place (which was required as of March 1, 2017).
  • Monitor your workplace and conduct training as may be necessary to educate employees as to the legal rights of everyone in the workplace, to prevent misconceptions and stereotypes from escalating into discrimination or harassment issues. This includes reminding employees to address all employees in with the pronouns and names as requested by the employee.
  • Respect all employee’s privacy and maintain confidentiality regarding the gender of your employees.

This Special Bulletin is intended as a brief summary of employment law. While every effort has been made to ensure the accuracy of the information contained herein, it is not intended to serve as “legal advice,” or to establish an attorney-client relationship. If additional information is needed on any of the topics contained herein, please contact our office. All rights reserved. ©2017.