Seyfarth Synopsis: Recent California legislation, including laws banning questions about salary history and criminal convictions, has bought new interview jitters for employers. These new laws, along with the Fair Employment and Housing Act’s prohibitions against questions going to an applicant’s protected status, confirms the point that there is such a thing as a “bad interview question.” In this ever-changing legal landscape, it is important for California employers to know what they can and cannot ask candidates in a job interview.

Although Michael Scott’s fictional character in The Office would have us believe there is no such thing as a “bad question,” that expression holds less true in California today than ever. California’s legislative updates in the last year have made job interviews more perilous than ever for the unwary employer.

The Legislature has recently introduced prohibitions on salary history and criminal conviction questions for certain employers. What is more, the FEHA prohibits questions like Michael Scott’s zinger, “Why are you the way that you are?”—a question that could go to various protected statuses, such as race, national origin, sex, nationality, and gender.

While such restrictions seem straightforward, implementing them is not always a no-brainer. Indeed, according to one survey, one in five hiring managers admitted that they have asked a question in a job interview only to find out later that it was illegal to ask.

So if you are looking to recruit for a temporary role, or hiring to fill the next coveted regional manager role at Dunder Mifflin, certain interview questions can have you breaking a sweat in California in 2019:

  1. Have You Ever Been Convicted of a Crime?

What used to be a common check-the-box question on employment applications is now illegal to ask before the employment offer stage. In late 2017, California joined several states in introducing “ban the box” laws to reduce barriers to applicants in the pre-hiring stage. Under AB 1008, California employers with more than five employees now must not

  • include on any job application questions that seek the disclosure of an applicant’s conviction history,
  • ask about or consider the conviction history of an applicant until he/she has received a conditional offer, or
  • consider, distribute, or disseminate information related to specified prior arrests, diversions, and convictions when conducting a conviction history background check.
  • San Francisco’s version of the “ban the box” legislation provides even greater protections to job candidates and includes stiff penalties for violations.
  1. How Much Do You Currently Make?

With the passage of AB 168, effective January 1, 2018, California employers must not ask job applicants for “salary history information” or rely on that information in deciding whether to offer a job and how much to pay. But if the applicant voluntarily discloses salary history, the employer may consider or rely on that information in setting salary so long as prior salary is not the only factor justifying any disparity in pay.

Under recent legislation clarifying the scope of AB 168, employers can ask about an applicant’s salary expectations for the position.

  1. Where Are You From?

The innocent icebreaker questions, “Where were you born?” or “Where are you from?” or “How long have you lived in the U.S.?” can land employers in hot water. Such questions, though seemingly offhanded, can be interpreted as questions about the applicant’s national origin.

Also, California’s Labor and Workforce Development Agency has made it clear that the state’s labor protections apply to all employees—regardless of their immigration status. Thus, you should stay clear of questions about a candidate’s citizenship (unless U.S. citizenship is a legal job requirement). You can, however, ask whether the applicant has a legal right to work in the United States, so long as you do not do so on a discriminatory basis.

  1. When Did You Graduate High School?

Questions about a candidate’s age are prohibited under both California’s FEHA and the federal Age Discrimination in Employment Act. Thus, employers should stay away from questions that could reveal a candidate’s age, like “What year did you graduate high school?”

You may ask a candidate’s age, however, if the job has a minimum age requirement, for example, if it involves serving alcohol.

  1. Are You Married?

Any questions related to parenthood or marital status are off limits. Prohibited questions include whether an applicant is married, pregnant, or plans to be in the future. Even the innocuous question, “What does your spouse do?” should be avoided as it could be seen as a round-about way of getting to the candidate’s marital status. It’s perfectly OK, though, to ask such questions after the candidate has been hired.

Workplace Solutions:

You may find yourself at an interview in the predicament Michael Scott describes best, “Sometimes I’ll start a sentence and I don’t even know where it’s going. I just hope I find it along the way.” Often people develop an easy rapport at an interview, making it hard to “unsay” questions—even illegal ones. Take note of the following guidelines to ace that next interview so you can indeed be the “World’s Best Boss.”

  • Read the fact sheet developed by California’s Department of Fair Employment and Housing, which offers guidance on questions employers can ask applicants.
  • To the extent feasible, prepare questions in advance, to help avoid drifting off into forbidden territory.
  • Train job interviewers and HR personnel on what interview questions are illegal and improper.

If you have any questions about this guidance or about illegal pre-hiring questions in California, feel free to contact your favorite Seyfarth attorney.

Seyfarth Synopsis: The Fair Employment and Housing Council issues regulations to implement California’s employment and housing anti-discrimination laws, including the FEHA, the CFRA, and the Unruh and Ralph Civil Rights Acts. The FEHC also conducts inquiries and holds hearings on various civil rights issues. The latest FEHC meeting was held on December 11, 2017. Our own correspondent was there, and files this report of coming regulatory attractions in the areas of age discrimination, religious creed discrimination, and national origin discrimination.

Age Discrimination. The Council discussed the current working draft of 2 C.C.R. § 11076, on age discrimination. The proposed changes would add language defining how to establish a presumption of discrimination by showing disparate treatment of applicants or employees over the age of 40, unless the treatment was tied to a legitimate overriding business necessity, necessary to the safe and efficient operation of the business. An employer would have to show a legitimate overriding business necessity, as opposed to the current “legitimate business reason” for any disparate treatment. The proposed regulations further note: “the mere preference of retaining lower paid workers alone is insufficient to negate a presumption of discrimination.”

This language has not yet been adopted and members of the Council seemed amenable to re-working the language for clarity. The Council members also decided that more research about other jurisdictions’ approaches to regulating workplace age discrimination would be good. This draft is likely to benefit from further revision.

Religious Creed Discrimination. As to a new potential draft of regulations related to religious creed discrimination, the Council heard concerns about pre-employment religious inquiries, such as religious scheduling needs. One commenter suggested that the religious accommodation process be drafted to mirror the interactive process used in disability discussions, suggesting that employers ask prospective employees whether they could perform the essential job functions, with or without a religious accommodation.

The Council did not seem particularly interested in this type of language. Some voiced concerns with the timing of such requests, and whether they might have the deleterious effect of actually weeding out potential employees by flagging them as “religious.” Stay tuned for more comment and revision to these proposed regs.

National Origin Discrimination. As to the final version of new national origin discrimination regulations, notable public comments concerned a section addressing language usage in the workplace. Some commenters feared that a per se ban on language restrictions in the workplace, unless justified by business necessity, could raise safety concerns. For example, during an emergency, employees speaking only in a foreign language on their meal break could present a safety problem if all employees could not understand what was going on. The Council did not seem entirely persuaded by the commenter’s arguments, but the discussion did prompt recognition that overly restrictive language regulation may present problems.

Instead of adopting or approving the regulations as proposed, a contested vote among Council members ensued. Two members voted to adopt the regulation as is, while the rest voted for a renewed notice period and another round of public comments. Overall, there was some lingering hesitation on how this new regulation may affect employers.

Regs Re: Criminal History, the California Family Rights Act, and the New Parent Leave Act. Modifications considered by the FEHC included changing the gender pronouns to be gender neutral, and changing language to reflect the exact language of the CFRA and the NPLA. The council voted to move and adopt these proposed amendments for a public comment period, catapulting them towards final adoption.

Other Happenings

Gender Neutral Signage. The Council also discussed emergency regulations already in place regarding gender-neutral facility signage. A subcommittee had already met with Cal/OSHA to discuss regulatory language to harmonize the regulations under the occupational safety laws, the FEHA, and the new legislation regarding gender neutral bathrooms for single occupancy restrooms. The Council is working with Cal/OSHA to ensure consistency and enforcement.

These new proposed regulations follow hard on the heels of regulations promulgated effective July 1, 2017, concerning Transgender Identity and Expression, and Consideration of Criminal History in Employment Decisions.

We will keep you apprised of further FEHC activity on the new proposals. The next FEHC meeting is scheduled for April 4, 2018. For advice on how these regulations may affect your business, or if you would like to discuss how you can participate with us in making public comments, please reach out to your favorite Seyfarth attorney.

Seyfarth Synopsis: Automation is redefining the workplace. While some may fear that automation will displace workers, automation can enhance a company’s workforce and improve productivity. In this segment, we examine industry changes resulting from an automated workforce and identify future trends.

Many of us remember our neighborhood video store closing its doors, forever changing the way we select our Friday night entertainment. Today, we can stream a new movie release from the comfort of our own home or interact with a large red kiosk after picking up groceries at the local supermarket. Automation seems inevitable and appears to be spanning most industries.

Automation has already reduced the number of workers throughout the manufacturing industry—brightest on the radar these days being the reduction in the labor force needed by the coal industry. That trend is likely to continue. But in recent years, automation has become more widespread. Retailers are closing their brick and mortar stores to do online business. And self-checkout aisles at grocery stores are ubiquitous. Should these changes be welcomed or feared?

While recent news articles and economists’ predictions can fuel the anxiety of the American worker, there is reason to be optimistic when examining this trend as a whole. Economist David Autor reminds us that prior stages of technological growth did not devastate, but rather transformed, the U.S. labor force. If we look to the past, we can find numerous examples of when invention and improvements were feared for reasons similar to those espoused today:  mass production of the automobile, mechanical harvesting in agriculture, and more recently the advent of ATMs replacing bank tellers. Rather than displacing an entire population, these innovations improved productivity and created new job functions for workers that enabled them to increase their economic value.

Such promise appears possible with automation in the retail industry. For example, Lowes recently rolled out the “LoweBot,” an automated robot that helps customers find products. It even assists employees with inventory-related tasks. Rather than simply eliminate the store’s employees, though, Lowes states that LoweBots augment the customer service the company can provide. A LoweBot can tell a customer what aisle to find paint brushes, but staff can demonstrate their expertise and offer suggestions for customers’ at-home projects.

Meanwhile, in Japan, the sometimes frustrating self-checkout aisles are enhancing the customer’s experience by automatically reading what’s in the customer’s basket without the need to scan each item.

Anticipated Trends Resulting from an Automated Workforce

Change is inevitable, and often difficult to embrace. A fitting analogy comes from the introduction of music on television by MTV. On the one hand, it may have killed the radio star, as the Buggles so eloquently put it. But at the same time MTV made music accessible to a larger audience. To succeed, musicians had to be open to evolve and master the new visual medium. Similarly, the era of the American worker isn’t coming to an end, but it may be in transition. This new workforce, like the musicians facing a video age in the 80’s, may need to develop new specializations and skills to obtain those future positions.

Automation is here and it’s changing the labor landscape: “we can’t rewind, we’ve gone too far.” But that’s not necessarily a bad thing. Here are some trends future employers can consider as they step into the age of automation:

Potential uptick in age discrimination claims. Jobs augmented with some form of automation will likely require greater proficiency in technology. Some speculate that this will put older workers disproportionately at risk because of the belief that younger workers are more adept with technology. This perception, coupled with the aging of the baby boomer generation, may increase the number of age discrimination filings. Employers may need to monitor the latent effects of any new policies, including those relating to worker’s expectations, more closely. In choosing a qualified applicant, employers can ask questions about an applicant’s technological skills, since those questions necessarily concern the applicant’s ability to perform job-related functions. However, hiring committees should ensure their decisions are guided by business needs and not assumptions about an applicant’s grasp of technology based on their age.

Increase in workplace safety. Automation of dangerous tasks should improve safety in manufacturing, distribution and other industries, which keeps workers safe. A decrease in the number of injuries on worksites should be accompanied by a decrease in the number of worker’s compensation claims. In addition, automation should also serve to improve companies’ compliance with OSHA regulations.

Retraining or cross-training current workforce. New jobs are likely to require specialized skills to build and fix the new technology. Employers can begin to offer training programs to their workforce to ease the transition into the emerging jobs created in response to a more automated industry. This would be an efficient way for employers to retain their workforce and combat the negative effects of high-turnover and understaffing. An early investment in cross-training may both build skills that help both workers increase career mobility and allow the company to meet its demand for skilled workers.

New job types. The roll-out of new technology in the workplace is likely to generate new types of jobs with new functions and areas. Workers will be needed to maintain, fix, and repair new technology.

If you have any questions or concerns and wish to discuss, Seyfarth’s team of seasoned attorneys is available to assist you navigate the legal landscape and the future of work. We also invite you to peruse Seyfarth’s Employer’s Guide to the Future of Work.

Edited by Michael G. Cross.