By Nadia P. Bermudez & Gregory A. Garbacz

New California state laws for 2018 may have immediate impact on employers’ recruitment and training processes.

Prohibition on Inquiries of Salary History 

Starting January 1, 2018, employers must immediately refrain from making inquiries about salary history in the recruitment of candidates for hire (AB 168).  Codified in Labor Code Section 432.3, the law provides that an employer “shall not, orally or in writing, personally or through an agent, seek salary history information, including compensation and benefits, about an applicant for employment.” Additionally, the law states that an employer “shall not rely on the salary history information of an applicant for employment as a factor in determining whether to offer employment to an applicant or what salary to offer an applicant.”

Some employers routinely ask candidates about their salary or pay “expectation.”  In light of the vague language prohibiting attempts to “seek” compensation information, such an inquiry may put an employer at risk depending on how the question is framed.  Notably, nothing in Section 432.3 prohibits an applicant from voluntarily and without prompting disclosing salary history information to a prospective employer.

Requests for salary history should be deleted from applications for employment in California and employers should ensure that interviewers are trained not to delve into salary history in interviews.  Interviewers and recruiters should further be trained that AB 168 requires that “[a]n employer, upon reasonable request, shall provide the pay scale for a position to an applicant applying for employment.”  There is no specific guidance offered in the statute to assist employers in answering this question, especially in the situation where no pay scale exists.  As such, employers need to use their best, good faith efforts to respond to such questions.

Interaction with Other California Laws

Employers are urged to review their paper and on-line applications for employment and make necessary changes.  Also, any social media (LinkedIn) or on-line recruitment posts should be reviewed to ensure that prior salary information is not solicited.  A violation of those restrictions is a misdemeanor and can lead to civil liability.

“Ban the Box”

Effective January 1, 2018, California employers with five or more employees should not inquire about any criminal convictions until after a conditional offer of employment has been made (AB 1008).  As such, it would be unlawful to include on any application for employment a question that seeks information on an applicant’s criminal history.  (The new law does not apply to certain state or local agencies that are otherwise required by law to conduct a conviction history background check, among other very narrow exceptions.)

The “Ban the Box” phrase takes its name from the frequently seen image of a box to check on applications for employment indicating a criminal conviction.  In the past, such applications with the box checked would be immediately rejected by employers.

These new restrictions are codified in Section 12952 of the California Government Code.  The key provisions are:

• An employer with five or more employees may not inquire into or consider the conviction history of the applicant, including any inquiry about conviction history on any employment application, until after the employer has made a conditional offer of employment to the applicant.
• While conducting a conviction history background check in connection with any application for employment, an employer with five or more employees may not consider, distribute, or disseminate information about any: (a) arrest not followed by conviction, except in limited circumstances; (b) referral to or participation in a pretrial or post-trial diversion program or (c) convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.

Section 12952 of the California Government Code describes the steps an employer should take under this new law if an employer intends to deny an applicant a position of employment solely or in part because of the applicant’s conviction history:

1. As a preliminary matter, the employer shall make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position. In making the assessment, the employer shall consider all of the following: (a) the nature and gravity of the offense or conduct; (b) the time that has passed since the offense or conduct and completion of the sentence; and (c) the nature of the job held or sought.  An employer may, but is not required to, commit the results of this individualized assessment to writing.
2. If the employer makes a preliminary decision that the applicant’s conviction history disqualifies the applicant from employment, the employer shall notify the applicant of this preliminary decision in writing. That notification may, but is not required to, justify or explain the employer’s reasoning for making the preliminary decision.
3. The notification shall contain all of the following: (a) a notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer; (b) a copy of the conviction history report, if any; and (c) an explanation of the applicant’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final and the deadline by which to respond. The explanation shall inform the applicant that the response may include submission of evidence challenging the accuracy of the conviction history report that is the basis for rescinding the offer, evidence of rehabilitation or mitigating circumstances, or both.
4. The applicant shall have at least five business days to respond to the notice provided to the applicant before the employer may make a final decision. If, within the five business days, the applicant notifies the employer in writing that the applicant disputes the accuracy of the conviction history report that was the basis for the preliminary decision to rescind the offer and that the applicant is taking specific steps to obtain evidence supporting that assertion, then the applicant shall have five additional business days to respond to the notice. The employer shall consider information submitted by the applicant pursuant to paragraph before making a final decision.
5. Finally, if an employer makes a final decision to deny an application solely or in part because of the applicant’s conviction history, the employer shall notify the applicant in writing of all the following: (a) the final denial or disqualification. The employer may, but is not required to, justify or explain the employer’s reasoning for making the final denial or disqualification. (b) any existing procedure the employer has for the applicant to challenge the decision or request reconsideration; and (c) the right to file a complaint with the Department of Fair Employment & Housing.

While some of the practices identified above are permissive as opposed to mandatory, best practices would favor keeping documentation showing strict compliance with the above requirements for each candidate that is rejected due to a past criminal conviction.  Finally, because a cause of action under this statute is subject to a three year statute of limitations, it is recommended to keep records related to a rejected candidate under these circumstances for several years in case the employer has to defend itself from such claims.

Harassment Prevention Training:

The “#MeToo” movement that swept the country in 2017 makes the threat of sexual harassment liability difficult to ignore for employers.  It is critical that employers take affirmative steps to train their employees in the prevention of workplace harassment.

SB396, codified at Section 12950 of the Government Code, requires an expanded course of training topics to include topics of: gender expression, gender identify and sexual orientation. The length of time for the training has not been extended.  Rather these topics are to be addressed as a component of the already-required two hours of sexual harassment training provided to supervisory employees every two years and within six months of an supervisor’s hiring or promotion as a supervisor.

These changes are law today. All of these rule changes became effective 1/1/2018.

Employers are urged to scrutinize online recruitment tools or paper applications to make sure that they comply with these new rules.  Klinedinst PC’s Employment Department is ready to assist you on in complying with these new rules and in providing training to your workforce.

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