Mid-Year Compliance Check-Up!June 21, 2017 – Client Alert
By Kelly M. Raney
There are a number of new employment laws coming into effect on July 1, 2017. Below is a self-test checklist to ensure your business is prepared for them.
(1) Are you prepared to meet the minimum wage increases taking effect on July 1, 2017, in Los Angeles City, Los Angeles County, and San Francisco?
- Los Angeles City and Los Angeles County employers with 25 or fewer employees: $10.50 per hour
- Los Angeles City and Los Angeles County employers with 26 or more employees: $12.00 per hour
- San Francisco (all employers): $14.00 per hour
Employers may be subject to Los Angeles County’s minimum wage increases, even if they are in unincorporated areas. Available here is a link to a list of unincorporated areas within Los Angeles County.
Please note that January 1, 2018, will bring minimum wage increases for employers throughout California.
You can find additional information on the California minimum wage increases here.
(2) Have you implemented the City of Los Angeles Sick Leave Law?
- Must be implemented by July 1, 2017, for smaller employers (24 or fewer employees)
- Has been in effect as of July 1, 2016, for larger employers (25 or more employees)
Under the law, Los Angeles employees are entitled to use up to 48 hours of accrued sick leave each year, and can accrue up to 72 hours at any one time. Employers can elect to provide the entire 48 hours as an annual lump sum, or allow employees to accrue it over time (such that the employee accrues one hour of sick leave for every 30 hours worked). Employers must allow unused hours to carry over to the next year, subject to a minimum accrual cap of 72 hours.
Please note that these requirements for Los Angeles employees are in addition to the state of California’s paid sick leave.
Please also note that the City of Los Angeles Sick Leave Law and Minimum Wages (question number 1) apply to any employee who performs at least two hours of work in a particular week within the City of Los Angeles. The employer need not be based in Los Angeles for the law to apply.
(3) Have you updated your employment practices and applications to comply with the “Ban the Box” regulations?
(A) If you are subject to California’s Fair Employment and Housing Regulations (“FEHA”), beginning in July, California employers will have to comply with the restrictions on seeking applicants’ criminal background.
(i) California employers are prohibited from considering criminal records such as:
- An arrest or a detention that did not result in a conviction;
- Certain marijuana infractions and misdemeanor convictions that are older than two years;
- Referral to or participation in any pre-trial or post-trial diversion program;
- An arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while a person was subject to the process and jurisdiction of a juvenile court;
- Convictions that have been sealed, judicially dismissed, expunged or statutorily eradicated by law; and
- As of July, any non-felony conviction for possession of marijuana that is older than two years.
(ii) Notice Requirements
Before an employer may take an adverse action (e.g., decision not to hire, discharge, or decline to promote) against a candidate based on criminal conviction history, the regulations require an employer to give the candidate notice of the disqualifying conviction and to provide him or her with a reasonable opportunity to present evidence that the conviction information is factually inaccurate (if the criminal information is obtained by a source other than the candidate, like a background check). If the candidate can demonstrate that the record is factually inaccurate, the employer will not be permitted to consider the record.
In the City of Los Angeles and San Francisco, notice may be required if an adverse action is taken against a candidate based on criminal record information derived from any source.
(iii) Possible Liability for Adverse Impact Discrimination
The regulations prohibit an employer from considering criminal history in employment decisions if doing so will result in an adverse impact on individuals in a protected class. This is known as “adverse impact discrimination.” This type of discrimination can arise from the administration of a “neutral” policy or procedure that, in practice, disproportionately affects members of a protected class. Therefore, employers should periodically review their “non-hired” applications and analyze the effects of their hiring practices to ensure that they are not inadvertently discriminating against a protected class.
The regulations regarding consideration of criminal history are complex. This section does not cover all of the requirements of the laws. If you have questions or concerns about this, or any other employment-related matters, please contact one of the attorneys in Greenberg Glusker’s Employment Department to discuss.
(B) Remember the City of Los Angeles has implemented the Fair Chance Ordinance, because the imposition of penalties and fines begins July 1, 2017.
The City of Los Angeles’s Fair Chance Ordinance took effect on January 22, 2017, with penalties and fines starting July 1.
As with the City of Los Angeles Sick Leave and Minimum Wage regulations, the Fair Chance Ordinance applies to employees who work at least two hours a week in the City of Los Angeles.
To comply with the Ordinance, employers must do the following:
- State in all advertisements and solicitations (both internal and external) that the employer will consider qualified applications with criminal histories in a manner consistent with the ordinance.
- Post a notice of the ordinance in a conspicuous place at every workplace and job site in the City.
- Refrain from asking applicants about their criminal history until after a conditional offer is made.
- If, after a conditional offer has been made, the employer conducts a criminal background check that discloses criminal history information unfavorable to the applicant, the employer must still perform "a written assessment that effectively links the specific aspects" of the criminal history with risks inherent in the job sought by the applicant.The employer must consider various factors, including the nature and gravity of the offense, time that has elapsed, and nature of the job sought.
- Before taking any adverse action, the employer must also engage in the “Fair Chance Process,” which involves: (1) providing the applicant written notification of the adverse employment action; (2) providing a copy of the written assessment described above; and (3) providing any other information or documentation supporting the proposed adverse action.The employer then must allow the applicant five business days to provide additional information or documentation regarding the accuracy of the criminal history results or mitigating factors.If the applicant provides correcting or mitigating information, the employer must conduct another written assessment and inform the applicant of its decision with a copy of that written assessment.
The penalties and fines that will start to be imposed on July 1 include: up to $500 for the first violation, $1,000 for the second, and $2,000 for subsequent violations. The law also has anti-retaliation provisions.
Additional information on the City of Los Angeles Fair Chance Ordinance is available here.
(4) Have you obtained the Labor Commissioner’s notice regarding protected time off and given it to new hires?
Beginning on July 1, employers are required to provide new hires with written notice of the right to protected time off for employees who are victims of sexual assault, domestic abuse and stalking.
The Labor Commissioner is required to create a uniform “sample” written notice for employers to use by July 1, so remember to obtain it and give it out! It should be available here, once it is released.
(5) Are you prepared to implement FEHA’s expanded protections for transgender persons?
Beginning on July 1, FEHA’s protections for transgender people will be expanded as follows:
(A) The protections for employees who identify as transgender are expanded in the new regulations to now specifically include individuals who are transitioning, have transitioned, or are perceived to be transitioning.
Remember that the transitioning process may include a number of different steps, but an employer cannot base its treatment of a transitioning employee on completion of any particular step.
(B) Employers must honor an employee’s request to be identified by a preferred gender, name or pronoun. This includes gender-neutral pronouns.
Violations can subject an employer to liability under FEHA and federal Equal Employment Opportunity charges (if a refusal to use the requested pronoun contributes to a hostile work environment based on sex).
(C) Employers are prohibited from making inquiries that, directly or indirectly, identify an individual on the basis of sex, gender, gender identity or gender expression. Employers also cannot ask for or about proof of an individual’s sex, gender, gender identity or gender expression as a condition of employment.
There are some very limited exceptions to this, including “bona fide occupational qualifications” or if an employer is subject to an affirmative action reporting or recordkeeping requirement.
(D) Employers must provide equal access to comparable, safe and adequate facilities without regard to the sex of the employee. Employees have the right to use a facility that corresponds with their identity. Also, “facilities” are not limited to just restrooms, but can include employer locker rooms or shower areas.
The regulations do provide feasible alternatives in order to address potential privacy concerns, including such things as locking toilet stalls or staggered shower schedules.
Of course, as of March 1, 2017, every single-user restroom in any California place of business, public accommodation or government agency must be an “all-gender” facility that is marked with a sign that complies with building code requirements in CCR Title 24.85.
How did you do? Are you prepared? Do you need some additional guidance?
Do not hesitate to contact any of the Greenberg Glusker employment law attorneys. We are here to answer any questions you may have about these laws, or others.