Several years ago, then-Gov. Arnold Schwarzenegger signed about 12 employment laws in one year. In the just-completed year, Gov. Jerry Brown signed more than 80 employment-related laws. Two of the new laws stand out.
Perhaps the most significant change began Jan. 1 when prospective employers will no longer be able to ask an applicant about prior salary history. An employer also won’t be able to get salary information from a recruiter or prior employer. The theory behind the law is that women tend to be paid less than men doing the same job – about 85 percent of what a man makes according to some studies – so women are at a disadvantage when offering salary history. Note that an employee may “voluntarily” disclose salary history, but there’s a risk. The employee could claim later that the information was coerced. However, employers may ask the employee about salary expectations.
The second significant change for this year, which was already the law in San Francisco and Los Angeles, is referred to as “Ban the Box.” This law requires employers to eliminate at the application stage any questions about criminal history. Employers will still be able to get the information, but only after an employment offer has been made. Going forward, an offer will be contingent not only on successful completion of a credit check (if allowed for that applicant), reference check, drug test, I-9 documentation, but now also on a successful criminal background check.
At the job-offer stage, an employer will still be able to find out about any misdemeanor or felony convictions. As before, however, employers are not entitled to information about convictions over seven years old from a background checking service, misdemeanor marijuana convictions over two years old or juvenile records. Tip: review employment applications and eliminate any questions about past convictions, salary history, birthdates, social security number and graduation dates.
If a check turns up criminal records, the employer may decide to revoke the offer. If so, the employer must provide the applicant with written evidence for the basis of the decision. The applicant then has five days to provide a response. The employer may still reject the application, but must do so in writing and follow federal EEOC “Green Rules,” which have been adopted in large part by California.
Green Rules prevent denial of employment solely because of the existence of a conviction. They require the employer to evaluate the nature of the conviction as it relates to the job, when the conviction occurred, the age of the applicant when the crime took place and whether there have been intervening jobs without incident. The employer must also consider issues such as whether the employee will be heavily supervised or will be allowed to leave the work premises for deliveries or other outside work.
Two clients contacted me after they learned they had a Megan’s Law sex offender working in their warehouses. They wanted to terminate the employees. In those situations, they weren’t able to terminate because the employee was heavily supervised, never left the premises for work-related activities, there was no daycare facility on site, they didn’t work near a school, and the conviction, in one of the cases, was very old.
An employer’s policies often don’t match actual practice despite management’s belief that all supervisors, foremen and lead persons are following corporate policy. With so many new employment laws for 2018, employers should take the time to update their policies and audit their actual employment practices.
Jonathan Fraser Light is the managing attorney at LightGabler in Camarillo. He has more than 30 years of experience in management-side employment consulting and litigation.