By: Eric J. Wu, Esq.
Employers in California understand that “Happy New Year!” means ringing in a host of new employment laws that must be carefully scrutinized. California law has long prohibited discrimination against job applicants on the basis of age, color, race, religion, sex, gender, sexual orientation, marital status, national origin, ancestry, disability, medical conditions, genetic information, and military status, among other protected categories. While the legislature’s intent is noble, the effect is that California employers are faced with a veritable minefield of potential liability when it comes to interviewing and hiring job applicants.
In the face of reports that the U.S. recently added 312,000 jobs and experienced a tremendous increase in hiring, employers operating in the Golden State would be remiss not to carefully examine their hiring practices. Two specific areas to examine are an applicant’s criminal background and salary history.
Criminal Background and The Fair Chance Act
Since 2018, the Fair Chance Act (California Assembly Bill No. 1008) (the “FCA”) has generally prohibited California employers from asking applicants about their criminal history prior to making a conditional job offer. Also known as a “ban the box” law, the FCA makes it illegal for employers to ask about an applicant’s criminal record on a job application, listing, advertisement, and during a job interview. In addition, employers may not consider, distribute, or disseminate information related to an applicant’s specified prior arrests, diversions, and convictions.
The California legislature’s intent is to prohibit employers from discriminating against applicants with criminal backgrounds. However, an exception to the FCA permits employers to conduct a criminal history inquiry when making an employment decision where federal or state law requires such an inquiry.
Effective January 1, 2019, California Senate Bill No. 1412 (“SB 1412”) adds to the FCA’s protections by narrowing the FCA exception to permit a criminal background inquiry only where an employer is legally required to inquire into a “particular conviction” or is legally prohibited from hiring an applicant with that specific conviction. “Particular conviction” is defined as a “conviction for specific criminal conduct or a category of criminal offenses prescribed by any federal law, federal regulation, or state law that contains requirements, exclusions, or both, expressly based on that specific criminal conduct or category of criminal offenses.”
In those narrow exceptions, an employer’s inquiry may now include an applicant’s convictions that were expunged, sealed, or even dismissed.
Changes Regarding Salary History
California employers should also be aware of new changes regarding an applicant’s salary history. Last year, California Labor Code section 432.3 went into effect, prohibiting employers from asking applicants for their salary history and requiring employers to provide applicants with a pay scale.
Effective January 1, 2019, employers may ask applicants about their salary expectations. The legislature also clarified that applicants who are not current employees may ask for a pay scale for the job position to which they are applying. However, employers are not required to comply with requests for a pay scale until an applicant has completed an initial interview.
Leech Tishman’s Employment Practice Group can help clients ensure compliance with California’s complex and technical employment laws and can assist clients with defending against civil or administrative actions.
Employers should carefully review and revise their hiring practices and procedures to comply with California’s new laws. If you have any questions about California employment law, please contact Eric J. Wu. Eric is a Partner in Leech Tishman’s California offices and practices in the firm’s Business and Employment Practice Groups. He can be reached at 424.738.4400 or firstname.lastname@example.org.
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Leech Tishman Fuscaldo & Lampl is a full-service law firm dedicated to assisting individuals, businesses, and institutions. Leech Tishman offers legal services in alternative dispute resolution, aviation & aerospace, bankruptcy & creditors’ rights, construction, corporate, employee benefits, employment, energy, environmental, estates & trusts, family law, government relations, immigration, insurance coverage & corporate risk mitigation, intellectual property, internal investigations, international legal matters, litigation, real estate, and taxation. Headquartered in Pittsburgh, PA, Leech Tishman also has offices in El Segundo, CA, Chicago, Los Angeles, New York, Sarasota and Wilmington, DE.