California Expands “Ban the Box”

“Ban the Box” Provisions

In January 2018, a new law will be in effect that amends the Fair Employment Housing Act (FEHA) expands current “Ban the Box” provisions to all public and private employers. This means that employers may not:

1. Request an applicant’s criminal conviction history on an employment application

2. Inquire any applicant’s conviction history until issuing a conditional offer of employment

3. Consider or share certain information regarding arrests, participation in diversion programs, or certain enumerated convictions obtained during a criminal background check performed once a conditional offer of employment has been made.

In addition, an employer may not deny employment based “solely or in part” on an applicant’s conviction history, the employer must first:

1. Conduct an assessment to determine whether the applicant’s conviction history has a “direct and adverse relationship with the specific duties” of the job for which the applicant is being considered
2. Give notice to the applicant of a preliminary decision to deny employment based on the conviction history
3. Allow the applicant time to respond to the notice and to provide evidence to dispute the accuracy of the conviction history
4. Consider the evidence submitted by the applicant. If the employer makes a final determination to still deny employment after consideration of the evidence provide by the applicant, the employer must provide the applicant with a written notice of its final decision.

The requirements and procedures of this new law are similar to the Fair Chance Ordinance provisions enacted in the City of Los Angeles earlier this year.

Employers in Los Angeles are well prepared for this new law. Others, however, should take this opportunity to scrutinize their hiring procedures and forms and to also train managers on the new provisions.

At the same time, employers should also ensure that their job applications do not ask for prior salary history and that hiring managers and recruiters do not ask for this information.

Employers must review and update their job application and interview forms and procedures to eliminate any requests for disclosures of criminal conviction histories. Employers should also review and update background check authorization forms and procedures. Employers should also develop or update “adverse action” notifications and procedures.

Expanding of both the “Ban the Box” and the Fair Pay Act in January 2018 mean that employers must review their applications and their hiring procedures to ensure they are in compliance with these laws.

Lauren Sims is the article author and the Director of Human Resources Consulting for eqHR Solutions.

Whenever you require professional Human Resources or Payroll guidance to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, contact us for a no obligation consultation.

eqHR Solutions offers professional, tactical and strategic, human resources support, ADP product implementation/training and payroll processing services for businesses throughout Southern California.

California Employers Obligation to Prevent Harassment and Discrimination in the Workplace

It’s been all over the news lately—dozens of stories, accusations and apologies surrounding harassing and inappropriate behavior in the workplace.

We work in California, but not even our state legislature, who has passed more anti-harassment laws than any other state, is immune to the onslaught. So how do employers protect themselves?

First, all California employers should remember the obligations to prevent and correct any potential harassment and discrimination in the workplace.

These include:

1. Employers all legally required to adopt a written discrimination, harassment, and retaliation prevention policy. This policy must be distributed and acknowledged by all employees. This policy should include:

• A definition of sexual harassment
• A complaint mechanism regarding harassment
• An outline of disciplinary steps that may be used in harassment cases
• Statement that confidentiality of complaint will be preserved when possible
• Prohibition against retaliation toward employees who complain
• Statement that supervisors must report any complaints
• Confirmation that the employer will conduct a fair and timely investigation

1. Employers, regardless of size are required to distribute California’s harassment pamphlet DFEH-185 to all employees.

2. California employers with 50 or more employees are required to provide at least two hours of interactive training regarding sexual harassment to all supervisors. Additionally, these employers must also provide bully prevention training, AB 2053, and, as of 01/01/2018, gender-based identification/harassment training, SP 396.

3. Employers must investigate all complaints. If an employer knows or should have known of the inappropriate conduct and failed to take appropriate action they will be held liable under the law.

Speaking of being held liable, when is an employer liable for harassment?

According to California law, an employer is liable if:

1. They know or should have known of the conduct and fail to take immediate and appropriate corrective action
2. They fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring
3. The harassment occurs by a manager
4. The harassment occurred by a non-management employee, and the employer does not take immediate and appropriate corrective action to stop the harassment once they learn about the harassment

Now that we know what our obligations and responsibilities are under the law, what do we do?

Never ignore a claim, rumor, or "open secret" about bullying, sexual harassment or any other harassing conduct.  Failing to take even a whisper of a problem seriously can have serious ramifications for your company. Despite the possible financial and legal consequences, failing to deal with issues sends a message that unacceptable behavior is part of the organization's culture.

It is important to be proactive to prevent possible problems. Having a policy and conducting the supervisor training is not enough without putting forth an effort to create a corporate culture that is fair, diverse and safe.  Educate your entire employee base not only on sexual harassment, but also communication, diversity, and the dangers of implicit bias.

Creating a culture where harassing and bullying behavior is unacceptable is your best defense against the damage a harassment claim can do to your organization’s finances and reputation.

Lauren Sims is the article author and the Director of Human Resources Consulting for eqHR Solutions.

Whenever you require professional Human Resources or Payroll guidance to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, contact us for a no-obligation consultation.

eqHR Solutions offers professional, tactical and strategic, human resources support, ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.

We recommend with insurance brokers that every employer, regardless of size, should provide sexual harassment, bully prevention, and gender-based identification harassment training to their supervisors and staff (non-supervisors) to reduce employment harassment claims and lawsuits

Understanding At-Will Employment in California

At-Will is a Lazy Excuse for Terminating an Employee

Many managers mistakenly believe that “at-will” can be a carte blanche to get rid of a troublesome or unpopular employee. California law stipulates that employees are employed at will. This entails that either the employer or the employee may terminate employment at any time, with or without cause.

Cause is defined under California law as "a fair and honest cause or reason, regulated by good faith on the part of the employer."

A fair and honest cause reason can be open to interpretation, but employers should not presume that they are safe from being sued for employment wrongs, such as discrimination, retaliation, violations of specific statutes (including those protecting whistle-blowers or employees who take family or medical leave) or for terminations that violate public policies set forth in statutes or regulations.

When managers come to me and say they want to terminate an employee and think they are protected under “at-will” I always caution them.

At-will does not mean that you do not have to document employee's performance or have a legal reason for terminating the employee.

It is never a good idea to tell an employee that "we are exercising our employment-at-will rights and terminating you." There are so many reasons for employee lawsuits, especially in California, employers should always document the reasons for terminating an employee. This includes providing verbal and written warnings, when appropriate, for poor job performance and less serious types of misconduct such as attendance policy violations. These warnings will help protect against a later claim that the termination was driven by an unlawful reason such as discrimination or retaliation.

Many CEOs and business owners believe that at-will allows them to terminate an employee simply because they don’t like them. And while in their mind this may be the reason, the employee may be able to prove that there were other, illegal reasons for the termination.

If this employee is a female, she may claim she was fired because of her gender and the employer has no written documentation to support otherwise. Saying that she wasn’t a culture fit to the organization will not stand up in court if there is no demonstrable effort on the part of the employer to give the employee a chance to improve her performance or change her behavior.

Employers should never be lazy and fall back on at-will alone as a reason for termination. These issues are not pleasant for managers to tackle, but documenting a performance improvement plan can go a long way in defending a potential costly wrongful termination or discrimination suit in the future.

Lauren Sims is the article author and the Director of Human Resources Consulting for eqHR Solutions.

Whenever you require professional Human Resources or Payroll guidance to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, contact us for a no-obligation consultation.

eqHR Solutions offers professional, tactical and strategic, human resources support, ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.