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

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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.