Get Ready for 2018: California Trends Put HR in the Spotlight

It’s looking like 2018 will be the year of HR leadership

By June Bell January 10, 2018
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Human resource professionals in California will play a vital strategic role in how businesses navigate critical workplace challenges, including sexual harassment prevention training, the legalization of recreational marijuana and demands for equitable compensation.

They have their work cut out for them. Effective with the new year, California employers can no longer ask job candidates for their salary history or immediately disqualify job applicants with criminal records. New laws also legalize pot and make more parents eligible for baby-bonding leave.

Sexual harassment prevention education tops the to-do lists of many HR professionals and attorneys who advise California businesses. They've been fielding detailed questions about the adequacy and efficacy of their anti-harassment instruction in the wake of highly publicized accounts of harassment and assault by powerful men, including Hollywood producers and actors, Silicon Valley investors and executives, Sacramento politicians, and a Pasadena-based federal appellate judge.

Employees say they are unclear about what comments and behaviors are inappropriate on the job or would create a hostile work environment. Is commenting on a colleague's new outfit acceptable? Are hugs forbidden? Effective training will provide answers and guidance.

Can I Give You a Hug?

Even the California courts are wrestling with where to draw the line: A Yolo County corrections officer sued the county, claiming that her supervisor, Sheriff Edward Prieto, created a hostile work environment by repeatedly hugging her and other colleagues. She claimed that the hugs made her feel uncomfortable and stressed. A trial court sided with the county, saying the sheriff's behavior did not meet the standard of a hostile environment. But a federal appeals court disagreed earlier this year, noting that a jury might see things differently.

California employers with 50 or more employees must provide sexual harassment training to supervisors every other year. Some businesses may decide to offer more than what's legally required.

For example, Elisabeth Giammona, SHRM-CP, said her employer, Agari of San Mateo, may make sexual harassment prevention education mandatory for all employees. Giammona, the company's senior HR manager, also wants to include material on recognizing unconscious bias and promoting diversity and inclusion at Agari, an e-mail security software company with about 100 employees.

The startup's casual culture lends itself to a more anecdotal, conversational approach to training, rather than a lecture or presentation. It's tricky to find people to do training because of the demand and because developments around sexual harassment are moving quickly, she said.

Mike Letizia, SHRM-SCP, president and CEO of Letizia HR Solutions in Stockton, is urging his clients to provide sexual harassment prevention training for all employees—and many small businesses are requesting it.

Businesses are definitely more aware of the need for such training than they used to be, he said. His training includes a blunt warning to workers that they will lose their jobs and face litigation alone—without their employer's legal defense—if they harass colleagues. Letizia said he won't be surprised if California lawmakers introduce legislation in 2018 to make training mandatory for every Golden State business—not just those with 50 or more workers.

Effective Jan. 1, California sexual harassment prevention training must include gender identity, gender expression and sexual orientation. Managers have inquired about best practices for handling workers' requests when transitioning genders to be identified by a name that better reflects their identity, said Wendy E. Lane, an attorney with Greenberg Glusker in Los Angeles. She recommends that requests be accommodated whenever possible—such as on ID badges. But tax and insurance paperwork should use given names until workers provide proof of a name change.

How Much Do You Make?

California HR professionals are also overseeing compliance with AB 168, which forbids employers from requesting candidates' salary histories. That ban means HR professionals must also ensure that job applications no longer request salary information and that recruiters don't ask for it.

"It's kind of a watershed moment in a way," said Marielle Smith, vice president of people for software developer Inflection.com Inc. in Redwood Shores. She's been revising applications to remove requests for salary history and is asking candidates early in the interview process to specify an acceptable salary range.

[SHRM members-only toolkit: Managing the Hiring Process in California]

Though a majority of the company's 100 U.S.-based employees work in Omaha, Neb., Inflection will extend California's ban on salary history inquiries to hiring efforts there as well. "We're going to apply the most candidate-friendly laws, and that's going to insulate a business best from risk," said Elizabeth McLean, an in-house attorney for Inflection. Agari will do the same, Giammona said.

Even if job applicants volunteer their salary histories, Jenn Protas advises clients never to record that number or consider it when making a job offer. Employers accused of pay inequities have a stronger defense if their notes do not mention prior salary, said Protas, an attorney with Hoge Fenton Jones & Appel in San Jose.

While California's salary history ban can prevent pay disparities based on gender or ethnicity for new hires, Protas and Lane noted that it doesn't affect entrenched inequities. A salary history ban is no substitute for a thorough pay audit spearheaded by HR professionals and then, if needed, corrective action.

Going to Pot

As more job candidates test positive for marijuana, employers will need to explore whether to modify—or even abandon—their policies on pre-employment drug testing, Lane said. Businesses are reconsidering mandatory testing because Millennials are pushing back against what they see as employers meddling in their off-duty activities.

The number of candidates who can pass a drug test has been "significantly impacted" by the widespread casual use of marijuana, she said. Pot is still illegal under federal law, but California is one of 29 states (as well as Washington, D.C.) that have legalized it.

June D. Bell covers California labor and employment issues for SHRM.

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