California Lawmakers Introduce More Employment Bills Before Deadline

By Michael S. Kalt Feb 28, 2017
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California legislators put forth a number of potentially significant employment bills before the Feb. 17 deadline.

As SHRM Online reported earlier in the session, lawmakers have introduced bills to:

Here's a quick overview of a few more employment bills that are likely to generate attention, especially since some may be more likely to pass with the Democratic supermajority in both chambers. This gives Democrats the ability to potentially override any veto by Gov. Jerry Brown.

'Ban the Box' Bill (A.B. 1008)

Over the last few years there's been an emerging national trend to pass "ban-the-box" laws at the state and local level. These laws prevent employers from asking job applicants criminal background questions until a certain point in the selection process.  

In 2013, California enacted a law prohibiting state agencies and cities from inquiring about or using criminal conviction information during the hiring process except in specified instances.

[SHRM members-only HR Q&A: What are the California rules regarding employer use of an outside agency to perform background checks?]

Legislators now seek to place similar limitations on private-sector employers. A.B. 1008 would amend the Fair Employment and Housing Act (FEHA) to prohibit private employers from inquiring about a job applicant's criminal record or conviction history until after a conditional employment offer is made.

The bill would also impose new notice and disclosure requirements if this information is sought.

It would preclude consideration or dissemination of the following items during a background check:

  • Arrests not followed by a conviction.
  • Referral to or participation in a pretrial or post-diversion program.
  • Convictions that have been sealed, dismissed or expunged pursuant to law.
  • Misdemeanor convictions for which no jail sentence could be imposed.
  • Misdemeanor convictions for which three years have passed since the date of conviction or felony convictions for which seven years have passed since the date of conviction.

It would also prohibit employers from interfering with or restraining the exercise of any right provided under this new section.

These limitations would not apply to any position for which a state or local agency is required by law to conduct a criminal history background check or to any position within a criminal justice agency.

Before denying a position based upon the findings of a criminal history check, the employer would also need to conduct an individualized assessment that considers the following:

  • The nature and gravity of the offense.
  • The time that has passed since the offense and completion of any sentence.
  • The nature of the job held or sought.

The assessment would need to be consistent with the Equal Employment Opportunity Commission's related 2012 guidance.

If an employer makes a preliminary decision to deny employment, the employer would need to provide written notice of this intent to the applicant and provide all of the following:

  • The conviction that is the basis for the denial.
  • A copy of the conviction history report, if any.
  • Examples of what the applicant may voluntarily provide to show evidence of mitigation or rehabilitation.
  • Notice of the applicant's right to respond and the deadline for doing so.

The applicant will then have at least 10 business days to respond before a final employment decision can be made.

This response can consist of a challenge to the conviction or evidence of mitigation/rehabilitation evidence, including:

  • That one year has passed since release from a correctional institution without a subsequent conviction.
  • Compliance with the terms and conditions of probation or parole.
  • Any other evidence of mitigation/rehabilitation, including letters of reference.

An employer would need to consider the applicant's response before making a final decision and could not disqualify an applicant who has shown evidence of rehabilitation or mitigation.

An employer that ultimately denies employment at least in part because of the applicant's conviction history must provide written notice of:

  • The final denial or disqualification.
  • Any existing procedure to challenge this decision.
  • Whether the applicant is eligible for other positions with the employer.
  • The earliest day the applicant may reapply for the position.
  • The right to file a complaint with the California Department of Fair Employment and Housing.

Veterans' Hiring Preference (A.B. 353 and A.B. 1477)

Laws allowing private employers to grant hiring preferences to veterans have been very popular lately, with more than 30 states enacting such preferences, often on an overwhelmingly bipartisan basis.

While California has long permitted public employers to grant such a hiring preference, the preference allowed to private employers was fairly limited and arguably outdated. Specifically, private employers were permitted only to extend hiring preferences to Vietnam War-era veterans, and these preferences were only insulated from sex discrimination claims.

A.B. 353 and A.B. 1477 would update and expand the current preference provisions, allowing private employers to extend preferences to any honorably discharged veterans and insulate such preferences from any FEHA discrimination claims, provided certain requirements are followed.

In 2016, a similar bill unanimously passed the Assembly before stalling in the Senate.

Reproductive Health Discrimination (A.B. 569)

This bill may be one of the first of its kind in the nation and would prevent employers from taking any adverse action because of an employee's or dependent's use of a drug, device or medical service related to reproductive health.

It would also prohibit employers from requiring employees to sign a waiver or other document denying their right to make their own reproductive health care decisions.

Businesses with handbooks would need to add a notice about workers' rights and remedies under this new section.

Right to Work (A.B. 1174)

Echoing the trend in other states, this bill would prohibit employees from being required, as a condition of employment, to contribute financial support to a labor organization or any charity sponsored by a labor organization.

This bill would not apply to any employment contract entered into prior to Jan. 1, 2018, and would not apply to certain federal employees.

This bill seems likely to be very heavily opposed and unlikely to pass.

Spot Bills

There were also a number of so-called spot bills introduced, which are essentially placeholders that are filed by the deadline and the details of which are filled in later.

This session's spot bills suggest that there will soon be proposals concerning FEHA, pay equity, predictable scheduling, meal and rest period issues, immigration protections, and employee privacy rights.

Thus, the number of employment-related bills is expected to increase as these spot bills are amended before key committee votes in April.

Michael S. Kalt is an attorney with Wilson Turner Kosmo in San Diego and the government affairs director for the California State Council of SHRM.

 

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