Seyfarth Synopsis: Employers in California: be aware and prepare for new laws increasing minimum wages and mandating overtime pay for agricultural employees; expanding the California Fair Pay Act to race and ethnicity and to address prior salary consideration; imposing new restrictions on background checks and gig economy workers; and more. Small employers will be relieved

Seyfarth Synopsis: When employee theft occurs, employers must be cautious in investigating, avoiding self-help, and in deciding if and how to terminate the offending employee.

Companies work hard to hire trustworthy employees, but employee theft can occur in any business. Employee theft takes different shapes—you may discover an employee is stealing products, supplies, confidential

iStock_000076923915_LargeSeyfarth Synopsis:  The Fair Employment and Housing Council is vetting proposed regulations to prevent employers from discriminating against applicants or employees with criminal histories. Our colleague Kate Svinarich attended a recent public hearing and filed this report. And stay tuned for a later dispatch, featuring proposed regulations on Transgender Identity and Expression, which the FEHC

The California employment agencies have been busy!

  • In February, the DFEH issued guidelines on dealing with transgender issues in the workplace (see our report here).
  • Now, effective April 1, 2016, the Fair Employment & Housing Council gives us amended regulations on preventing discrimination, harassment and retaliation in the workplace. See our One Minute Memo

With the 2016 hiring season well under way, California employers are well advised to reconsider their use of criminal records in making hiring decisions.  Although employers are probably aware of “ban the box” and other legislative initiatives, they may not be as familiar with the liability exposure they may create by when using blanket policies

By Soo Cho, Michele Haydel Gehrke, and Pamela Devata

Not only is complying with California’s labor laws challenging, operating a business in San Francisco can be particularly challenging due to a number of San Francisco city ordinances regulating employers.  Most recently, on February 17, 2014, Mayor Ed Lee signed the “Ban the Box” ordinance.  While the ordinance sounds as if it belongs in the same category as other  San Francisco environmental ordinances banning the use of plastic bags, this ordinance, formally known as the “Fair Chance Ordinance,” actually relates to what an employer can ask about relating to criminal history and when an employer can conduct a criminal background check in hiring. San Francisco is joining the ranks of many other states and municipalities who have recently passed similar restrictions “banning” the criminal history box (i.e., HI, MA, MN, RI, Newark, NJ, Seattle, WA, etc.).  See our publications relating to these trends here and here.

The Fair Chance Ordinance requires private employers in San Francisco who employ 20 or more employees (in any location) to limit the use of criminal background checks during the hiring process.  “Employers” is defined broadly to include not only private employers in San Francisco, but also employment agencies, contractors and subcontractors (with performance contracts in excess of $5,000 and for longer than 30 days), and housing providers.

Employers are barred from asking about criminal history or conducting a background check until the employer determines that the individual’s qualifications meet the requirements for the position.  Specifically, the law requires removal of the box or question on an employment application asking “Have you ever been convicted of a crime?”  The ordinance notes that an estimated one of four California adults has an arrest or conviction record and seeks to limit the “unnecessary and significant barriers to employment” created by such application questions. This is similar to the reasoning espoused in Equal Employment Opportunity’s Enforcement Guidance on the Use of Arrest and Criminal Records in the Hiring Process, which can be found here.

Employers in San Francisco may ask about a candidate’s conviction history after the first live interview, but must provide the candidate with a notice of rights (an applicable notice of rights will be published by the city within the next six months).  Employers are also prohibited from considering (1) any arrests that do not lead to convictions, (2) offenses other than felonies or misdemeanors, (3) convictions more than seven years old, (4) an applicant’s participation in or completion of a diversion or deferral of judgment program, and (5) sealed, inoperative or juvenile convictions.

Similar to the federal requirements under the Fair Credit Reporting Act, 15 U.S. C. Sec. 1681 et. seq. and state requirements under the California Investigative Consumer Reporting Agencies Act, Cal. Civ. Code Sec. 1786 et. seq,  the ordinance also provides that if an employer does run a background check and intends to take an adverse action against the candidate based on that information, the employer must:
Continue Reading Asking About Criminal History and Conducting Background Checks (“Ban the Box”)