Seyfarth Synopsis:  The California Fair Employment and Housing Council (“FEHC”) has approved new regulations, effective July 1, 2017, to limit employers’ use of criminal history when making employment decisions.

Request for a criminal background checkNew Regulation Highlights

Updating our prior post, the FEHC has finalized new regulations on employer consideration of criminal history, largely adopting the guidance set forth by the Equal Employment Opportunity Commission (“EEOC”) in its April 2012 “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.

  • Expanding the Types of Criminal History Employers May Consider: Employers will be prohibited from considering any non-felony convictions for marijuana possession if the conviction is more than two years old. (Current California law prohibits asking applicants to provide information concerning convictions for marijuana-related offenses that are more than two years old; detentions or arrests not resulting in conviction (except for those pending); convictions that have been judicially dismissed or ordered sealed; and information concerning a referral to or participation in a work/education program as part of probation.)
  • Requiring Notice to the Applicant/Employee of a Disqualifying Conviction and Providing a Reasonable Opportunity to Present Evidence of Factual Inaccuracy: Under the new regs, prior to taking adverse action, an employer must provide the applicant notice of the disqualifying conviction and give the applicant a reasonable opportunity to present evidence of factual inaccuracy. If the applicant produces such evidence, the conviction cannot be considered in the employment decision. The notice is only required when the criminal history is obtained from a source other than the applicant or employee (e.g., through a consumer report or internally generated search). This notice differs from the notice required by the Fair Credit Report Act (“FCRA”), which mandates notices only if the employer takes adverse action based on information contained in a third-party background check. This notice also differs from those in “Ban the Box” city ordinances, such as Los Angeles and San Francisco, where notice may be required if adverse action is taken from criminal history information from any source, including disclosure from the candidate.
  • Prohibiting Consideration of Criminal History When Doing So Will Result in an Adverse Impact on Individuals Within a Protected Class: Employers will also be prohibited from considering criminal history if doing so will result in an adverse impact (referred to by the EEOC as “disparate impact”) on individuals within a certain class (e.g., race, national origin, etc.). The regs bring California into explicit alignment with federal law on this point. Applicants bear the initial burden of proof with respect to establishing that the employer’s background screening policy has an adverse impact on a protected class, e.g., conviction statistics or other types of evidence. If adverse impact is demonstrated, the burden shifts to the employer to demonstrate that its policy is “job related and consistent with business necessity,” and tailored to the specific circumstances, taking into account factors such as those set forth in Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1975), i.e.,: (i) nature and gravity of the offense or conduct; (ii) amount of time since the offense or conduct and/or completion of the sentence; and (iii) nature of the job held or sought. (Bright-line disqualification policies that include convictions that are older than seven years create a rebuttable presumption that they are not sufficiently tailored.) Even if an employer can demonstrate job-relatedness and consistency with business necessity, an applicant or employee can still bring a claim if they can show that there is a less discriminatory alternative (such as a narrower list of disqualifying convictions) that advance the employer’s legitimate concerns as effectively as the current policy or practice.

Employer Outlook

Employers in California should review their policies on use of criminal history in hiring and modify any practices to ensure compliance with the new FEHC regulation (as well as the FCRA and applicable municipal Ban the Box ordinances, such as Los Angeles and San Francisco).

Pamela Q. Devata is a partner in Seyfarth Shaw’s Chicago office. Stacey L. Blecher is counsel in the firm’s New York office. If you would like further information, please contact your Seyfarth Shaw LLP attorney, Pamela Q. Devata at pdevata@seyfarth.com or Stacey L. Blecher at sblecher@seyfarth.com.

Seyfarth Synopsis:  With summer months almost upon us, here are some dress code tips and tricks for employers to ensure both employee compliance with relaxed summer dress codes and increased employee motivation and morale. We also note pitfalls to avoid when developing these dress codes.

Who doesn’t love wearing khakis and polos to work? Relaxed summer dress codes are a common practice among businesses that seek to boost employee morale during a time when some folks want to be at the beach. Establishing these summer dress code guidelines, however, can be a challenge because they can introduce ambiguity and confusion. Employees may not have a clear sense of what attire satisfies a “relaxed” dress code, and as a result wear clothing that is inappropriate.

Here are some considerations to keep in mind, with suggested language for dress codes.

Acceptable Summer Dress Code Restrictions

Establish written guidelines for dress in the workplace. One place to put them is the employee handbook. If a relaxed summer dress code is a new addition, then an addendum to the dress code policy may be in order, or even a stand-alone policy.

California recognizes the need for employers to adopt dress and grooming standards based on business needs. These include safety in the workplace, fostering an atmosphere of professionalism, and adherence to accepted social norms or customs. With these points in mind, it is generally okay to ask that employees not wear the following:

  • shorts
  • crop tops, halter tops, tank tops and spaghetti straps
  • “maxi” dresses
  • sun dresses
  • jumpsuits, rompers, or overalls
  • T-shirts
  • flip flops, sandals, and other casual footwear
  • sunglasses
  • hats

The EEOC generally tolerates dress codes that apply to all employees within a certain job category, even if the dress code might conflict with some workers’ ethnic beliefs or practices. Employers, then, can require employees to leave their nose rings, tongue studs, and other body piercings at home.

What To Avoid: Discriminatory Dress Codes

In America generally, dress codes that differentiate between men and women are not unlawful as sex discrimination because these employer requirements do not affect employment opportunities. Employers thus may allow women, but not men, to wear their hair long, or may ban earrings for men, while allowing them for women. But California takes things to the next level: California law forbids employers to ban the wearing of pants, unless that ban applies to both genders. California thus protects the right of women to wear pantsuits. There are a few exceptions to the pantsuits rule, such as dress codes requiring employees “in a particular occupation to wear a uniform” or requiring employees to wear a costume while portraying a specific character in a dramatic role.

Federal law does not recognize gender as a stand-alone category and instead identifies “gender identity, including transgender status” as types of sex discrimination. Not surprisingly, California is different here as well.  California’s interpretation of gender includes “gender identity and gender expression.” “Gender expression” in California includes gender-related appearance and behavior whether or not it is stereotypically associated with the person’s assigned gender at birth. This language aims to protect persons whose physical and behavioral characteristics are associated with a particular gender.  Summer dress codes, as with any dress code, should take into account this expansive definition.

California is also peculiar in the area of religious dress and grooming practices. California law, unlike federal law, defines “religious grooming practices” as including  “all forms of head, facial, and body hair that are part of the observance” of the individual’s religious creed. Along those same lines, California is also peculiar in that it forbids segregating an employee to achieve a religious accommodation. Thus, an employer confronted with an employee with a religious grooming practice does not have the option of accommodating that practice by moving that the employer away from customers and to the back of the house.

Workplace Solutions

The summer months by their nature inspire a more casual atmosphere (especially in sunny California!). While dress codes can be tailored to reflect this, it is important to ensure that they still comply with the law and that they are consistently and equitably enforced (especially in California). If you are considering instituting a summer dress code, or if you would like to review an existing one, please do not hesitate to reach out to our experts in Seyfarth’s California Workplace Solutions Group.

Edited by Michael Wahlander.

Seyfarth Synopsis: Some California employers offer floating holidays for employees to use for events like the upcoming St. Patrick’s Day holiday. Floating holidays, while offering additional unrestricted days off that promote employee satisfaction and work-life balance, can also bring a sinking feeling to employers who learn, too late, of their possible ballast.

Many California businesses provide 11 paid holidays to employees. In addition, some employers provide floating holidays, which bob along on the sea of workdays until an employee grabs one to serve as a personal life preserver. All good, right? Not necessarily. Granting floating holidays can raise questions that, if not answered correctly, can lead to unexpected liability despite the good intent.

What is a floating holiday anyway?

“Floating holidays” allow employees, with advance notice, to take off any work day, for any reason they choose. These extra days off may enable employees to attend to personal business such as a parent-teacher conference, to observe religious holidays such as Yom Kippur, Rosh Hashanah, or Christmas Eve, to take a “mental health” day, or to celebrate other significant days such as a birthday, a spouse’s birthday, or an anniversary.

Are floating holidays mandatory?

Although no law requires employers to provide floating paid holidays, some employers use them to promote employee satisfaction and work-life balance.

Do floating holidays affect final pay? 

That’s where things can get tricky. In California, employers can let floating holidays truly float with the wind or tether them to other events. Depending on the employer’s approach, unused floating holidays may need to be included in an employee’s final pay.

One approach is for the employer to treat floating holidays as unrestricted. This allows employees to take a day off any time they chose, regardless of the occurrence of any other event. With this approach, courts are likely to treat floating holidays as simply vacation by another name. As such, any unused floating holiday must be paid out at the time of the employee’s termination, along with any other wages owed.

The other approach is for the employer to tie floating holidays to the occurrence of a specific event. This approach requires that floating holidays be used on or near specific days (such as on or near the employee’s birthday). The right to take the day off does not arise until the occurrence of the event to which it is tethered; that is, if the employee is no longer employed upon reaching a birthday (in this example), the right to take the associated floating holiday never springs into being. In that case, the floating holiday would be treated like a regular paid holiday, which is not owed until the event (e.g., Thanksgiving, July 4th) occurs. Consequently, pay for the unused holiday pay would not due upon termination.

Can we cap the number of floating holidays?

Yes. An employer may cap the number of floating holidays that an employee can take. But employers must remember that California law on vacation does not allow a “use it or lose it” policy. As we’ve just learned, if use of a buoyant holiday is unrestricted, it will be considered a vacation equivalent. Because California equates earned vacation pay with wages, it vests as it is earned. As we detailed in an earlier piece, an employer may not have a policy that makes employees forego “vacation” pay that is not used by a specific date. Likewise with those unrestricted floating holidays.

What must our written policy include?

Because employers can treat floating holidays in different ways, it’s important to have your policy clearly reflect when floating holidays may be taken and what happens if the floating holidays are not taken. If floating holidays can be taken at any time, then it is important to track the employee’s accrued and unused floating holidays. Those must be paid out at the time of termination.

Workplace Solution:  By making sure that the written policy is clearly drafted, California employers can avoid many of the pinpricks and burst bubbles of good intent that can come along with providing floating paid holidays. If you would like assistance with ensuring compliance with California rules regarding floating holidays, please contact the authors or another attorney from Seyfarth’s Labor and Employment Group.

Edited by Michael Cross.

Seyfarth Synopsis: On March 13, 2017, San Jose’s new “Opportunity to Work Ordinance” takes effect, requiring covered employers to offer additional hours to part-time employees before hiring new or temporary employees. As the law’s effective date looms, the City has issued guidance clarifying portions of the ordinance and has released the notice form that employers must post.

An earlier post detailed the obligations that San Jose’s new voter-approved ordinance creates for San Jose private employers. The ordinance requires certain employers to:

  • offer additional work hours to existing, qualified part-time employees before hiring new employees, through a “transparent and non-discriminatory process,”
  • post a notice of the rights created by the ordinance, and
  • retain, for four years, relevant records such as work schedules, payroll records, and offers to current and former part-time employees.

With the ordinance’s March 13th effective date now knocking, the City has issued guidance on how to comply. We provide some highlights below.

For starters, employers can stop banging on the City’s door for the ordinance’s required notice. The City has issued the notice for employers to post with their other employment notices (click here for the notice in English, Spanish, Chinese, and Vietnamese).

The City has also published Frequently Asked Questions to shed some light on how the City interprets the ordinance. Perhaps most importantly, the FAQs define a “full-time” employee as an employee who works at least 35 hours a week, which means that “part-time” employees (who must be offered extra hours) are those who work fewer than 35 hours a week.

The FAQs also remind us that a “covered employer” is an employer that has at least 36 employees and that is subject to San Jose’s business tax (i.e., the ordinance doesn’t apply to government employers). The FAQs also explain that the employer’s total number of employees includes employees who work in locations outside of San Jose.

The FAQs go on to explain that only non-exempt employees count towards the 36-person threshold required to become a covered employer (this number includes part-time and full-time employees). Administrative and professional employees will not affect an employer’s coverage under the law; in fact, the FAQs explain that they are exempt from the law.

Further, the FAQs details how employers can comply. First, employers need to offer additional hours to part-time employees only at a particular location. Employers do not need to reach out to employees at other locations.

Second, employers can decide how to offer additional hours to part-time employees, provided that the employers adopt a process that is transparent and non-discriminatory. For example, an employer can give employees a limited window to accept additional hours of work before bringing on new labor. And employers need not rearrange their shift schedules to give more hours to part-time workers; the part-time worker must be able to work during the employer’s regularly scheduled shift.

Finally, for those covered employers who feel like the ordinance might knock them out, the City has provided a hardship application. On a case-by-case basis, the City will grant renewable twelve-month exemptions where a covered employer’s “work or need is unpredictable or requires a specialized skill and there is a need to essentially have Employees ‘on call.’ ”

This recent guidance, while not removing all uncertainty, certainly gives employers a better understanding of what lurks behind the Opportunity to Work Ordinance door, which will open on March 13.

Workplace Solutions. Compliance with new city ordinances can be tricky, especially since they are often relatively obscure. Knowledge is the first step. Compliance efforts are the next. If you would like assistance with ensuring compliance with this new ordinance, then please contact the authors or another attorney from Seyfarth’s Labor and Employment Group.

Edited by Michael Cross.

Seyfarth Synopsis: Heeding some lessons from HBO’s Silicon Valley can help employers avoid mistakes related to potential hostile work environments and discrimination that might occur in a startup environment.

In a world where life often imitates art, startups can avoid perceived gender bias and sexual harassment in the workplace by learning from the pitfalls of the socially awkward team at TV’s fictional startup firm: Pied Piper. In honor of the upcoming return of Silicon Valley, we discuss five lessons for fledgling companies, using situations that may sound oddly familiar to fans of this geek squad.

1. She Loves Me Not: Workplace Romances Gone Wrong

Imagine that your programming engineer is flirting with one of the (few) female engineers on staff. She politely tries to discourage him, but he isn’t taking the hint. What do you need to be concerned about?

Unwelcome conduct based on gender often forms the basis of a sexual harassment complaint. That’s why it’s important to take all complaints seriously and to both quickly and effectively address misconduct. An employer has a legal obligation to prevent harassment. Therefore, startups should have clear anti-harassment policies informing employees of their rights and outlining complaint and investigation procedures in place for addressing such complaints (more on this below).

But what, you ask, if the conduct is welcome? Does that mean all’s well? Not quite. Although California law doesn’t require employers to prevent all employees from dating or pursuing romantic relationships with their coworkers, a workplace romance between a supervisor and a subordinate can lead to prohibited conduct. Why? Such dalliances can lead to harassment or hostile work environment claims, as well as conflicts of interest and morale issues. In addition, some companies may want to consider implementing a “love contract” for peer relationships; review our prior blog post to see if one might suit your company.

2. Promise To Be Nice To Each Other? Pinky Swear? Not Enough

In the rush to open its doors, a startup might not contemplate certain policies until it becomes clear that they are necessary. For example, maybe you didn’t think to launch your startup with a clear anti-harassment policy in place, but are prompted to by the recent hire of a woman into what was previously a small, all-male workforce (think Pied Piper). In this case, would the following policy suffice?

“Essentially, if you find the workplace hostile in any way you can submit a written complaint. It will be completely anonymous. Essentially don’t do or say anything that might offend anyone. Okay? Thank you. That’s the policy.”

While well-meaning, the above policy falls short in a number of ways. California requires that employers prevent harassment in the workplace and take immediate and appropriate corrective action when harassment occurs. But blanket guarantees of confidentiality or anonymity are  impractical because remedial action may require some form of disclosure of the complainant’s identity. In addition, employer policies must use specific language that FEHA and DFEH regulations require. That includes clearly stating that the employer will not tolerate discrimination or harassment on the basis of protected characteristics including: age, ancestry, color, religion, race, national origin, citizenship, creed, ancestry, sex, gender, gender identity, gender expression, sexual orientation, medical condition, pregnancy, childbirth, or related medical condition, denial of family and medical leave, mental or physical disability, marital status, military and veteran status, and genetic information. It’s also required to designate a specific person to whom these types of complaints can be made—someone other than the complainant’s supervisor. Lastly, it’s important to note that startups with 50 or more employees must provide interactive sexual harassment training to their managers and supervisors every two years (more on this training in one of our previous blog posts).

3. There Are Such Things As Stupid Questions: Discrimination During Hiring

Imagine your Silicon Valley-like CFO “struggles” between hiring a woman and hiring the “best” engineer, falsely believing these are mutually exclusive propositions. This CFO claims to understand the value of diversity, but at the same time, wants to ensure that he hires “the most qualified person for the job. But it would be better if that person was a woman even though the woman part is irrelevant.”

California law, of course, protects against discrimination on the basis of gender, as well as the other protected characteristics mentioned above. An employer’s obligation to prevent discrimination begins with the application and hiring process. Whether it’s by asking questions during an interview that reflect a bias for or against a particular gender, or considering gender when deciding whether or not to hire, employers can expose themselves to liability. It’s important that those with the authority to interview and hire are properly trained with respect to what can and cannot be considered when making hiring decisions.

4. Equal Pay Or Bust

Similarly, what if your previously all-male workforce expresses concern that a newly hired female programmer will be paid the same as her male counterparts?

As previously reported here, as of January 1, 2016, California has one of the most aggressive pay equity laws in the country. It requires that employers pay persons of different genders equally for substantially similar work, or else be able to explain legitimate differences. Recent amendments impose the same rule for employees of different races or ethnicities (which we discussed at length here).

5. Creativity v. Etiquette

You may face a scenario in which certain startup members rely, for creative inspiration, on crude or vulgar language in order to produce the outcome your customers expect. Does the creation of groundbreaking compression software, for example, justify workplace use of vulgar language?

Probably not. Vulgar and crude language, if sufficiently pervasive and gender-specific, may give rise to a hostile work environment. Standing alone, the above scenario might not rise to the severe and pervasive standard required for workplace harassment. But if persistent vulgar language exists, your startup could be in some hot water. If the language is related to or directed toward a specific gender, your version of Pied Piper may ultimately have to pay.

Workplace Solution:

Until we reach a post-gender culture, or until the next tech genius creates an algorithm to perfect these issues, businesses—especially startups—should not be afraid to seek legal counsel on how to best handle these issues in the workplace.

Edited by Michael Cross.

Seyfarth Synopsis: The Court of Appeal, on rehearing, has superseded a 2016 decision that employers must reasonably accommodate work restrictions because of the disabilities of the employee’s associates. The superseding opinion recognizes that employers have no established duty to provide accommodations because of the disability of an employee’s associates.

Seyfarth’s One Minute Memo readers will recall that we reported, back in April 2016, on a classic case of “hard facts make bad law. In that case, Castro-Ramirez v. Dependable Highway Express, the Court of Appeal creatively held that California employers must accommodate employees who do not themselves have disabilities but who simply are associated with someone who has a disability.

We are happy to update you on later proceedings in that case. The unusual result that we criticized last year is no longer even arguably the law in California. The accommodation claim, which was the focus of the prior Court of Appeal decision, was abandoned by the plaintiff after the initial decision. In the decision upon rehearing, issued August 29, 2016, the Court of Appeal observed:

[N]o published California case has determined whether employers have a duty under FEHA to provide reasonable accommodations to an applicant or employee who is associated with a disabled person. We acknowledge that the reasonable accommodation subdivision of section 12940 does not expressly refer to persons other than an applicant or employee. . . . We only observe that the accommodation issue is not settled and that it appears significantly intertwined with the statutory prohibition against disability discrimination . . . .

While the Court of Appeal conceded that it could not rule on a question that the plaintiff had abandoned, the Court of Appeal emphasized that there is a cause of action for associational discrimination under both the FEHA and the ADA, and held that triable issues precluded summary judgment on the discrimination and retaliation claims.

(The California Supreme Court, meanwhile, has denied Dependable’ s petition for review.)

Workplace Solution: California law remains the same as it was before the original Castro-Ramirez decision: there is no established duty for an employer to grant a reasonable accommodation to an employee who is not disabled, but who is merely associated with someone who is. It remains the case, though, that employers must not discriminate against employees on the basis that they are associated with someone who has a disability. Caution in making employment decisions relating to employees with known disabled associates thus remains highly advisable.

Edited by: Michael A. Wahlander.

Seyfarth Synopsis: As of March, all single-occupancy restrooms in California businesses, government buildings, and places of public accommodation must be gender neutral. This post reviews the annoyingly specific requirements regarding restroom signage to help employers remain compliant.

North Carolina achieved notoriety with its “Bathroom Bill,” restricting restroom access on the basis of gender. California has countered with its own bill, AB 1732, the Equal Restroom Access Act, signed by Governor Brown in September 2016.

Single-occupancy restrooms once could be designated as being either for males or for females. The Equal Restroom Access Act, applying to single-occupancy restrooms in businesses, government buildings, and places of public accommodation, requires that they be available to everyone. The Act defines a single-user restroom as a “toilet facility with no more than one water closet and one urinal with a locking mechanism controlled by the user.” Assemblyman Phil Ting provided context in stating that “this bill sends a simple message that everyone’s rights must be respected and protected…restricting access to single use restrooms defies reason.”

To comply with the new law (codified at Health & Safety Code § 118600, et seq.), the signage on single-occupancy restrooms must be updated to gender-neutral signs by March 1, 2017. And although the Act does not create any penalties or a private right of action for non-compliance, inspectors, building officials, and local officials can inspect, and it is likely that municipalities will pass or revise ordinances in response. So this is a good time to take a fresh look at existing signage to see that it complies.

The California Building Standards Code provides the requirements for the three types of restroom signs to be aware of for your business:

  • Geometric signs: a circle (women), a triangle (men), and a triangle on top of a circle (gender neutral)
  • Designation signs: signs that identify permanent rooms and spaces (i.e., restrooms, closets, and vending areas)
    • Tactile signs: Signs that are read by touch (i.e. raised lettering and Braille)
    • Pictograms: Pictures accompanied by tactile characters and Braille
  • Directional and Information signs: signs that are read visually

California requires at least two signs to identify each restroom open to the public: a geometric sign and a designation tactile sign. Just how California businesses must designate these signs is very peculiar indeed, so you’ll want to read this closely!

Geometric Signs

The required geometric symbols are different for men’s, women’s, and unisex or all-gender restrooms. Women’s restrooms are identified by a circle measuring 12 inches in diameter. Men’s restrooms are identified by an equilateral triangle with all sides being of equal 12 inches length. Finally, relevant to AB 1732, all single-occupancy restrooms must now be identified by an equilateral triangle measuring 12 inches on each length within a circle with a 12 inch diameter. The color of the triangle must contrast with the color of the circle within which it is superimposed.

Regardless of which geometric restroom sign is used, the sign must contrast in color with the surface on which it is mounted. So a light sign should be on a dark door and, conversely, a dark sign should be on a light colored door. Further, each geometric sign must be ¼ of an inch thick and be mounted at a minimum of 58 inches and a maximum of 60 inches above the ground.

Designation Signs

Designation signs that must be tactile include signs for “Restroom,” “Women’s,” Men’s,” “All-Gender Restroom,” and “Unisex Toilets.” Descriptive signs, such as “All restrooms are open to persons of all genders,” are not considered designation signs and are not required by law to be tactile.

For required tactile signs, the lettering must be 1/32 inches thick, in all uppercase, 5/8 inches to 2 inches in height, and may not be italic, oblique, script, highly decorative, or any other unusual style. Left-flush or centered 3/8 inches to 1/2 inches below the lettering must be a Braille duplication of the lettering. Tactile signs are also subject to certain mounting requirements, including the requirements that the sign be mounted on the latch side or on the right hand side of doorway without a door, and placed outside the swing of any door.

Although pictograms are not required by the new law, they are commonly used to identify restrooms. Familiar pictograms used for restrooms include the toilet symbol, as well as the corresponding symbols for male and female. If pictograms are used, California law requires that they have contrasting colors and no glare, and the field must be six inches minimum in height with no text, Braille, or anything else in it. A text description must also be placed below the field in tactile lettering and Braille. Pictograms are subject to the same mounting requirements as tactile signs and should be placed adjacent to the door.

Important For Our Readers:

  • The minimum size of the pictogram field will not fit into a 12 inch triangle. As a result, all “unisex” geometric signs with pictograms in them are not compliant and should be not used.
  • You must use approved symbols and verbiage when using pictograms. Although many websites offer pictograms for use, they may not comply with the size requirements, or they may potentially be offensive. So look at these very carefully for compliance!

Directional and Information Signs

Directional and information signs provide messages about interior or exterior places and facilities, such as: “Smoking is not allowed in the restrooms” or “For customer use only.”

These signs have various requirements regarding matters such as the finish, size, style, thickness, and spacing, depending upon the viewing distance and mounting height. Unlike designation signs, directional and information signs are not required to have raised lettering or Braille.

Note that when using directional and information signs, it is important to remain generic so that the sign does not become an identifier requiring tactile signage. For instance, “the company’s restroom is open to all persons” is generic and only gives information about the restroom. Contrast that with a sign saying “Unisex Restroom” which specifically identifies the restroom and is therefore a designation sign that must comply with tactile sign requirements.

Workplace Solution: As you can see, California’s bathroom signage requirements are very technical and specific. Please contact your favorite Seyfarth attorney if you need any assistance with remaining or becoming compliant with these specifications.

Edited by Coby M. Turner.

Readers interested in developments concerning California’s unique Private Attorneys General Act (PAGA) may want to delve into a short thought piece (actually advice to the California Legislature) on a recently-proposed bill that would amend PAGA. To read that post, also available on Seyfarth’s Wage & Hour Litigation Blog, please click here or at the end of the synopsis.

Seyfarth Synopsis: Sometimes, plaintiffs’ attorneys have circumvented a key aspect of the California Legislature’s intent in enacting PAGA: limiting standing to pursue penalties for Labor Code violations to those employees who were actually harmed. Though a new California bill could halt those attempts, PAGA plaintiffs’ wiliness warrants a cautionary comment to the Legislature to ensure that any amendment furthers—rather than further frustrates—the original legislative intentContinue Reading

Seyfarth Synopsis: Background screening companies that provide background checks to online child care job posting services in California may face increased civil liability as they seek to comply with new Assembly Bill No. 2036.

Parents want to employ only the most qualified individuals to watch over their children. Background checks on these individuals—often provided by consumer reporting agencies—therefore are at a high premium. The author of Assembly Bill 2036, Assembly member Patty Lopez, cited just this concern in support of her new bill, which imposes additional restrictions on businesses providing online childcare job posting services in California and on background screening companies providing background checks to those businesses: “This Bill is another good step to protecting our children and ensuring that child care consumers are making the most informed and safest decisions about the individual(s) they hire to care for their child[ren].”

In the old days, people who needed childcare would often engage a nanny referral service. Now, of course, there are websites (“online child care job posting services”) that list babysitters and nannies available for hire by parents (or other consumers). These websites usually state that the babysitters/nannies listed have undergone background checks. According to the California Child Care Resource and Referral Network, while parents trust online child care job posting services when they advertise that their providers have undergone background checks, these checks are often conducted by “third parties,” a process that makes it difficult to determine what information the background check may contain (for example, the check may not contain information from the FBI and the DOJ’s Child Abuse Central Index databases).

AB 2036 amends existing law by imposing new duties on businesses that offer child care services (for example, nannies and babysitters) via online job-posting. In particular, if a covered business provides access to a background check on child care providers listed on its website in California, the business must provide “by means of a one-click link on each California child care provider” a written description of the background check provided by the background screener. The background screener is responsible to provide this information to the business posting the child care services. Background screeners that fail to comply with the law may be liable to individuals using the job-posting websites.

For background screening, to whom exactly does this statute apply?

The statute applies to background screeners that “provide background checks for online child care posting websites in California.” These background screeners must “provide to the online child care posting services a written description of the background checks conducted,” as detailed below.

This language does not expressly address whether the statute applies to background screeners that are affiliated with the job-posting website but that provide the background checks directly to the users of the child care services rather than to the business offering the services.

What information must background screeners include in their descriptions?

At minimum, a background screener’s description of the information contained in the background checks must include:

  1. A detailed description of what is included in the background check.
  2. A chart that lists each county in California and the databases that are checked for each county, including the following information for each database, as applicable:
  • The source of the data, the name of the database used, and a brief description of the data included in the database.
  • The date range of the oldest data and the most recent data included.
  • How often the information is updated.
  • How the databases are checked (by name, social security number, fingerprints, etc.).
  • A list of the counties for which no data is available.

These requirements raise a host of issues, including:

  • Are these requirements general or specific? In other words, do they require a description of what background check services are generally offered, or do they require a description of what background check services were offered and provided on a particular individual?
  • Do the requirements include searches that are not tied to a county? For example, if a background screener includes social traces in background report, should the social trace be listed in the chart?
  • What do “database” and “source” mean, and how do the terms differ? The terms are undefined in AB 2036.  If records are obtained from a court, is the court considered a “database,” a “source,” or both?  What about records obtained from a vendor?
  • How frequently must a background screener update the descriptions? For example, if a database is updated regularly (and many are), the date range for the data in that database would vary regularly.

What are the liability risks and resulting penalties?

In the grand California tradition, AB 2036 provides a right to sue, and there are no restrictions on class actions. Any individual “damaged by a willful violation” can sue under the act. This class of individuals seems to encompass recipients and subjects of the reports (for example, parents requesting the reports and the providers who were the subject of the reports). Recoverable damages include general, special, and punitive damages. Because individuals must be “damaged” to sue, lawsuits under the statute are likely to be limited to claims involving financial loss or a plausible claim of emotional damage. In addition, the requirement of actual damage may make it difficult for individuals to bring class actions for violations of the statute.

The statute provides for civil penalties of $1,000 per offense. These penalties can be awarded in actions brought by government entities, but an action can proceed only if the defendant was notified of the violation and failed to correct it within 30 days of the notice.

So what next?

What AB 2036 means for background screeners is not fully clear, and we expect that there may be additional guidance from regulators and the courts as the statute is implemented. We will keep a close eye on this one, so please stay tuned for developments and updates!

If you have questions about the statute, including its application to your business, please contact Esther Slater McDonald, Marjorie Soto, or your favorite Seyfarth attorney.

Seyfarth Synopsis: With the availability of new vehicle GPS devices and smart phone tracking applications, employers need to be mindful of employee privacy rights when using location technologies in the workplace.

It Doesn’t Take A Magellan To Map Routes Anymore

Employers now have available the technology that concerned parents of wayward teenagers have often wished for. Thanks to technological advances, one can now monitor another’s movements in ways that could only be imagined a couple of decades ago.

The benefits of tracking employee activity through GPS (Global Positioning Systems) include: (i) verifying routes and locations for mobile employees, particularly in the transportation or delivery industry, (ii) ensuring that employees are not violating traffic laws, (iii) monitoring employee overtime, (iv) verifying that employee time records are accurate, (v) locating company-owned stolen vehicles, and (vi) verifying that employees are not misusing company vehicles by, for example, driving to inappropriate locations or at inappropriate times.

With the advent of GPS smart phone applications, companies have begun to install GPS tracking apps on company-issued smart phones, which monitor not only the employees’ transportation in vehicles, but may allow for out-of-vehicle monitoring as well.

So with all of this great new technology, where (if at all) must employers draw the line when it comes to tracking employee mobility?

Navigating The Nexus of Privacy and Employer Needs

At the center of the debate on the lawfulness of tracking employees via GPS is the employee’s right to privacy vs. the employer’s need for productivity and business-related information. California has a strong tradition of protecting individual privacy rights. Article I, Section 1 of the California Constitution provides that “all people” have an inalienable right of privacy. This provision applies to private as well as public employers. California employers thus must be wary of infringing on employee privacy by learning too much about private time and lawful off-duty activities.

Litigation Beginning To Moovit Related To GPS Tracking

Of major importance is whether the GPS tracking information is related to job performance: if it is not, then cataloging off-duty activities may violate constitutional rights to privacy. Consider this recent cautionary tale: In Arias v. Intermex Wire Transfer, an employee sued her former employer, claiming she was fired for uninstalling a GPS tracking app from a company-issued smart phone that was tracking her movements even when she was off the clock. The employee objected to being tracked on her own time and compared the GPS to the ankle bracelet placed on someone under house arrest. She sued for wrongful termination, invasion of privacy, unfair business practices, retaliation, and other claims, seeking over $500,000 in damages. This suit, privately settled, is likely not the last of its kind.

An additional source of legal restriction on remote employee monitoring is California Penal Code section 637.7, which prohibits the use of “an electronic tracking device to determine the location or movement of a person” via a “vehicle or other moveable thing” unless “the registered owner, lessor, or lessee of a vehicle has consented to the use of the electronic tracking device with respect to that vehicle.” So while an employer arguably can install GPS tracking on company-owned vehicles, and even on employee-owned vehicles used for work purposes (with advance consent as we’ve blogged previously), there is currently no such carve-out allowing employers to require GPS tracking through smart phones.

In What Waze Should Employers Be Mindful About Using GPS?

A California employer using GPS to monitor employees should have policies carefully considering employee privacy issues. As with other kinds of workplace monitoring (e.g., cameras in the workplace, use of email and Internet systems), we recommend (a) full disclosure to employees, and (b) obtaining employee consent, including implementing a separate GPS tracking policy. The policy should:

  • Outline the legitimate business reasons for using GPS tracking (e.g., increasing operational efficiencies, improving customer service, maintaining accurate timekeeping records, improving safety).
  • Provide clear notice of the company’s right to monitor employee locations while the employee is using company-owned property, describe when and how employees should expect to be monitored, and tell employees they should have no expectation of privacy while using the company property.
  • Explain how the employer will use and safeguard data collected.
  • Notify the employee of the consequences that could lead to discipline for disabling a GPS device without the employer’s permission.
  • Communicate the policy to all employees, and have them provide written acknowledgement of their receipt and understanding of the policy.

Other best practices to consider include:

  • Limit monitoring of activity to work hours, and monitor an employee’s location only for a specific business purpose in compliance with the GPS tracking policy. The collected data should not reveal details of the employee’s private life.
  • Limit access to the GPS tracking information to company personnel who have a clear business need to know that information.
  • Make sure that you store any GPS-related data securely.
  • Where employees are unionized, consider whether there is a duty to bargain before implementing the use of GPS tracking, depending on the language of the contract and the parties’ course of dealing. The NLRB has advised that a complaint would issue when an employer failed to bargain before unilaterally implementing a vehicle data recorder system to monitor employee compliance with driver safety rules.

Workplace Solution: Because this area of law is still developing as new technologies emerge, employers should continually revisit their GPS policies for compliance. We monitor developments in this area and will provide our readers with further information as it becomes available. In the meantime, if you have any questions, please contact the author or your favorite Seyfarth attorney.

Edited by Coby M. Turner.