On September 15, 2021, a divided panel of the Ninth Circuit Court of Appeals decided…
Lawsuit Prevention for Employers
Several new laws were enacted in late 2017, most of which took effect on January 1, 2018. Some of these significantly impact most employers in California, and will affect existing policies, requiring the modification of some, and the elimination or replacement of others.
In addition, the new laws will require revision of application/hiring and other existing procedures. What follows will summarize some of the most significant new laws.
- Ban-the-Box Application Inquiries. Employers of five or more employees are prohibited from requesting information pertaining to the criminal history of applicants. Before relying on such information to reject an application, employers must determine that a conviction has a direct and adverse impact on the applicant’s ability to perform the job in question. Before rejecting an application, the employer must allow the applicant to respond, complying with specific time constraints, and give serious consideration to any response offered by the applicant. Also, written notice informing the applicant of the decision to deny employment due to a criminal conviction must be provided.
- Application Inquiries Regarding Salary/Earning History. Employers are prohibited from inquiring about the prior earning, compensation or benefits history of applicants, directly or through third parties, such as job recruiters.
- Parental Leave for Employers of 20 or More Employees. Requires employers to provide eligible employees with up to 12 weeks of unpaid leave to bond with a new child, adopted child or foster child. Employers must pay for the continuation of medical insurance coverage under a group health plan, as though the employee was still actively employed, for the duration of the leave period. Before the commencement of leave, the employer is required to provide a written guarantee of reinstatement to the same or a comparable position.
- New Leave Rights for Military Reserve. AB 1711 grants State Military Reserve members the same military leave and other specified benefits presently available to National Guard and other military reserve personnel.
- Harassment Training for Gender Identity, Expression and Sexual Orientation. SB 396 expands training requirements applicable to employers of 50 or more employees beyond sexual harassment and workplace violence, to include training related to workplace harassment based on gender identity, gender expression and sexual orientation.
- Sexual Harassment Training by Farm Labor Contractors. Farm labor contractors are presently required to attest in writing that their employees have been provided sexual harassment prevention and reporting training. Newly-enacted Labor Code, section 1684 requires that training be provided to each agricultural employee in the language understood by that employee. Contractors are now required to provide the Labor Commissioner with a complete list of all materials or resources used to provide harassment training, and to identify the number of employees trained in harassment prevention.
- Building Contractors Liable for Wage and Benefit Obligations of Subcontractors. “Direct contractors” will now be jointly liable with “subcontractors” for unpaid wage, fringe benefit or other benefit payment obligations of their subcontractors for contracts entered into on or after January 1, 2018.
- Employers are Now Required to Implement California’s Sanctuary Policies. In what appears to be a gesture of defiance to federal immigration polices, AB 450 requires California employers to facilitate California’s “sanctuary state” policy by establishing rules that in effect compel employers to impede enforcement of federal immigration policies.
Jay G. Putnam is a Petaluma labor lawyer who has specialized in representing California employers for over three decades. His practice is devoted to preventing lawsuits against his clients, without sacrificing workplace authority or management prerogatives.
While no one can guarantee a future free of lawsuits, Putnam has compiled a remarkable record of success: Not one employer-client has been sued in 36 years with his system of precautions in place.
For those clients who have arrived with pending lawsuits, Putnam has established an excellent track record of success as well.
You are invited to visit Mr. Putnam’s website, where you will find in-depth discussion of the most common mistakes made by California employers, and how to avoid them. http://www.jaygputnam.com/newsletter/