Fall 2018 New Employment Laws – Part 2

New Employment Laws for 2018 (Part 2)

Welcome back to our New Employment Laws for 2018 wrapup and update. This post will focus primarily on hiring practices. This year, the Legislature clarifies hiring practices changes and access to sealed or expunged criminal records of potential hires.

Clarification of Last Year’s Salary History Ban

Last year, AB 168 banned California employers from asking for a prospective employee’s salary history as part of the hiring process. Applicants can volunteer past salary information, but employers’ cannot ask for it.  Businesses must provide a pay scale for the position upon request. Labor Code 432.3. AB 168 reaffirmed that “prior salary, by itself,” can’t “justify any disparity in compensation.”

This year, the Legislature passed AB 2282 to shed some light on permitted and prohibited inquiries. Significantly, AB 2282 provides that:

  • “Pay scale” is defined as “salary or hourly wage range.”
  • The term “applicant” only apply to external hires, not employees currently employed by the hiring business. This means that current employees do not have a right to see a pay scale.
  • External hires must have already had an initial interview to request a pay scale.
  • Employers are in the clear to ask an applicant about their salary expectations for the position in question.
  • Companies cannot pay workers of different race/ethnicity or gender differently unless the “entire wage differential” is based on a seniority system, merit, or education/training.

Employers should review their policies with everyone that participates in the hiring process. New employment laws make prior salary information off-limits.

Limitation on Viewing Certain Criminal Records

In most circumstances, employers can not view or ask applicants about sealed or expunged convictions of potential hires during the background check process. However, employers are legally barred from hiring people with certain past convictions for sensitive positions. For example, you cannot hire a bank robber as a bank teller. SB 1412 lays out when an employer can take into account sealed/expunged convictions. Employers can ask about or seek information about expunged convictions if the conviction would legally prohibit an applicant from holding the position.

What is and is not allowed in the hiring process can be confusing. Crossing legal lines can be extremely problematic for employers. It is always best to consult a lawyer to establish well-defined and legal hiring practices to avoid costly and time-consuming litigation. New employment laws are enacted every year, and it’s important to stay on top of things. You can read another article regarding background checks here.

Provided by the Nuddleman Law Firm, P.C.

Written by J.T. Keane and edited by Robert E. Nuddleman

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Fall 2018 New Employment Laws – Part 1

New Employment Laws for 2018

It’s that time of year again: new employment laws for 2018. While everyone else in the state is bundling up and raking up the falling leaves, the Governor was busy signing bills. Over the next few weeks, we’ll be cutting through the legalese to explain the impact the legislative flurry has on employers and employees. This installment will focus on leaves of absence and employee benefits.

Paid Family Leave Expansion

SB 1123 added a new reason employees can collect state paid family leave benefits. Current law provides for up to 12 weeks of PFL for caring for sick family members, bonding with newborns, and adopting a child. Effective January 1st, 2021, Section 3301 of the Unemployment Insurance Code will allow workers to claim benefits for “a qualifying exigency related to the covered active duty or call to covered active duty” of a family member. There are important caveats. The family member must be a parent, child, or spouse.

“Qualifying exigency” covers a broad range of situations. Employees can claim benefits for time taken off to:

  • attend official military ceremonies,
  • arrange childcare during deployment,
  • make financial/legal arrangements for deployment,
  • spend time with their family member during rest or recuperation leave, and
  • other active-service related situations.

This new law doesn’t create a new right to take paid leave. These new provisions apply only to employees already covered under the FMLA.

Change in Lactation Accommodation Requirements

Due to a quirk in state law, employers used to be restricted from designating a “toilet stall” as a private lactation area. “Bathrooms” were fair game. Now Labor Code section 1031 clarifies employers must provide a location beside a bathroom for employees to lactate. This location must be private and near where an employee typically works. It must be permanent, unless “operational, financial, or space limitations” of the business make that impossible.

Here, temporary lactation locations can be designated, that must be “free from intrusion” while being used by employees. AB 1976 also provides an exception for businesses that would face an “undue hardship” due to “the size, nature, or structure of the employer’s business.” These employers may still designate bathrooms for lactation, just not toilet stalls specifically. California law requires employers to provide break time for lactation, and a civil penalty can be imposed for non-compliance.

We’ll provide more updates about new employment laws for 2018 in upcoming articles.

Provided by the Nuddleman Law Firm, P.C.

Written by J.T. Keane and edited by Robert E. Nuddleman

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.