California Employment Law Update

January 2017 California Employment Law Notes

We invite you to review our newly-posted January 2017 California Employment Law Notes, a comprehensive review of the latest and most significant developments in California employment law. The highlights include:

California employers must relieve their employees of all duties during breaks

$90 Million Judgment Reinstated:  Employers Must Relieve Employees Of All Duties During Their Break Time

Today, the California Supreme Court ruled that California law strictly prohibits on-duty rest periods.  “What [the law] require[s] instead is that employers relinquish any control over how employees spend their break time, and relieve their employees of all duties – including the obligation that an employee remain on call.”  This class action was filed on behalf of all ABM security guards, alleging that ABM consistently failed to provide uninterrupted rest periods as required by state law.  During the litigation, ABM acknowledged that it required guards to keep their radios and pagers on, remain vigilant and respond when needs arose, such as escorting tenants to parking lots, notifying building managers of mechanical problems and responding to emergency situations during their breaks.  The trial court granted plaintiffs’ motion for summary adjudication on their rest period claim on the ground that ABM’s policy to provide guards with rest periods subject to employer control and the obligation to perform certain work-related duties was illegal as a matter of law.  The trial court subsequently awarded the class approximately $90 million in statutory damages, interest and penalties.  Augustus v. ABM Sec. Servs., Inc. (Cal. S. Ct. 2016)

 

Los Angeles’ New “Ban the Box” Ordinance Prohibits Employers From Asking Job Applicants About Their Criminal History

On December 9, Los Angeles Mayor Eric Garcetti signed the “Fair Chance Initiative” into law. The new law, also referred to as the “Ban the Box” ordinance, restricts employers in the City of Los Angeles from asking job applicants about criminal convictions until after a conditional offer of employment has been made. Although some exceptions apply in fields such as law enforcement and child care, the ordinance will affect all city contractors and private employers with 10 or more employees who perform at least two hours of work on average each week within the geographic boundaries of the City of Los Angeles.

The new ordinance will be codified as Article 9 to Chapter 18 of the Los Angeles Municipal Code. According to the text of the new law, employers will no longer be permitted to include any questions on job applications that seek disclosure of an applicant’s criminal history, nor can employers ask any questions about criminal history during the job interview process.

An employer may only inquire about an applicant’s criminal history after a conditional offer of employment has been made and is conditioned only on the results of the criminal background check.  An employer will not be permitted to take any adverse action, such as withdrawing the offer, based upon an applicant’s criminal history unless the employer first performs a written assessment that effectively links the specific aspects of the criminal history with the risks inherent in the duties of the employment position.

The ordinance requires that an employer conducting the written assessment must, at a minimum, consider the factors set forth by the U.S. Equal Employment Opportunity Commission, such as (i) the nature of the offense; (ii) the individual’s age at the time of the offense; (iii) circumstances surrounding the offense; (iv) the number of offenses for which the individual has been convicted; (v) employment history before and after conviction; (vi) evidence of rehabilitation; (vii) time that has elapsed since the offense, and other mitigating factors.  Employers must also apply other factors as may be required by rules and guidance issued by the Department of Public Works, Bureau of Contract Administration, which bears administrative responsibilities for this ordinance.

In the event the employer elects to take an adverse action after undertaking a written assessment, the employer will first be required to provide an applicant with a “Fair Chance Process.” This process gives the applicant an opportunity to provide information regarding the accuracy of the criminal history or any other information, such as evidence of rehabilitation or mitigation, that should be considered in the employer’s written assessment. Employers also will be required to post notices regarding the new ordinance and state in all solicitations or advertisements seeking applicants that the employer will consider for employment qualified applicants with criminal histories in accordance with the new ordinance.

Penalties for violating the ordinance will begin issuing on July 1, 2017. Prior to that date, written warnings will issue to employers that violate the law. Penalties for violation of the ordinance (apart from its notice and record retention requirements) will be up to a $500 fine for the first violation, up to $1,000 for the second violation, and up to $2,000 for each subsequent violation. Violations of the notice and record retention requirements will result in fines of up to $500 for each violation.

Los Angeles employers should immediately examine their employment applications, job advertisements, and relevant employment forms and record retention policies in order to ensure immediate compliance with the new ordinance.

FAQ About California’s New Law on Venue and Choice of Law in Employment Agreements

We recently blogged about Governor Brown signing S.B. 1241, which is now codified as Section 925 of the California Labor Code. The law, which affects venue and choice of law provisions in agreements entered into as a condition of employment, will begin applying to agreements entered into, modified, or extended beginning on January 1, 2017. The text of the law (posted directly below) might appear relatively straight forward, but certain ambiguities and questions concerning the law’s implementation raise several issues, which are discussed in this blog post.

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October 2016 California Employment Law Notes

We invite you to review our newly-posted October 2016 California Employment Law Notes, a comprehensive review of the latest and most significant developments in California employment law. The highlights include:

Newly Enacted California Statutes

New Case Law

California Broadens Its “Fair Pay Act” to Prohibit Race And Ethnicity Discrimination

Around this time last year, Section 1197.5 of the California Labor Code was amended by S.B. 358 in order to “eliminate the gender wage gap in California.” Among other things, the amendment sought to increase wage transparency and made it more difficult for employers to defend against gender-based equal pay claims.

On September 30, 2016, California Gov. Jerry Brown signed S.B. 1063, further expanding the statute to prohibit wage discrimination based on race or ethnicity. The new prohibitions on race and ethnicity discrimination in wages mirror the gender provisions, which were discussed in a previous blog post. For example, race-based wage differentials are exempted (as are gender wage differentials) if they are related to payments based on a seniority system, a merit system, quantity or quality of production, or any bona fide factor other than race.

Employers should note that Gov. Brown also signed A.B. 1676, which specifies that prior salary cannot, by itself, justify any gender disparity in compensation.

S.B. 1063 is codified as Section 1197.5(b) of the California Labor Code, and A.B. 1676 is codified as Section 1197.5(a)(3).

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