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: Governor Jerry Brown has already signed into law legislation covering meal period exceptions for truck drivers delivering commercial feed, adding communications to be considered as “privileged” for purposes of defamation suits, removing a reference to the seven-day waiting period for disability benefits under the paid family leave program, and clarifying salary history information.

As temperatures begin to drop, with pumpkin spiced lattes and the smells of dew in the air, things are still heating up in the Governor’s office. With only 16 days remaining in his signing period of his final term in office, the Governor has been active. This week he has been focused on bills covering climate—as he kicked off the Global Climate Action Summit on September 12 and recently signed bills blocking offshore oil drilling expansion, reducing carbon emissions, and setting a 100% clean electricity goal for the state. In addition, the Governor signed a much talked about bill, SB 954, requiring printed disclosures to mediation participants concerning mediation confidentiality.

While we’re keeping an eye on all employment bills sitting on his desk, here’s a quick recap of what he has already approved.  All these new laws take effect January 1, 2019 unless otherwise stated.

Meal Periods. Sponsored by the California Grain and Feed Association, AB 2610 carves out an exemption to Labor Code 512 by allowing truck drivers who transport commercial feed (i.e., livestock feed) to “remote, rural areas” to take a meal period after the sixth hour if their regular rate of pay is at least one and a half times the state minimum wage and the driver is subject to overtime pay.  Drivers must still be provided a second meal period at the tenth hour. The bill does not define “remote, rural areas,” but bill sponsors point to factors such as road conditions – narrow, twisting, in higher elevations or mountainous regions; limited rest stops, closed rest stops, or lack of road space to safely take a meal period; and low average speeds (e.g., 40-50 mph).

Privileged Communications. AB 2770 amends Section 47 of the Civil Code to add three types of communications regarding sexual harassment that are now considered “privileged” communications—meaning they cannot be used as a basis for defamation claim—unless they are made with malice (i.e., statements made with complete disregard for the truth or false accusations made out of spite, ill will, or hatred towards the alleged harasser). Specifically, the bill protects:

  1. Reports of sexual harassment made by an employee to their employer based on credible evidence and without malice;
  2. Communications made without malice regarding the sexual harassment allegations between the employer and “interested persons” (such as witnesses or victims); and
  3. Non-malicious statements made to prospective employers as to whether a decision to rehire, or not, would be based on a determination that the former employee engaged in sexual harassment.

Paid Family Leave. Prior legislation that went into effect on January 1, 2018 removed the seven-day waiting period before an eligible employee may receive family temporary disability benefits (under the paid family leave program, which provides wage replacement benefits to workers who take time off work to care for a seriously ill family member or to bond with a minor child within one year of birth or placement). AB 2587 removes the seven-day waiting period reference in Section 33013.1 of the Unemployment Insurance Code, since the waiting period rule has been removed.

Salary History Information. This year’s Fair Pay Act bill, AB 2282, was noted as sensible legislation that amends and clarifies ambiguities in Labor Code sections 432.3 and 1197.5 created by prior pay equity legislation—AB 1676 (Chaptered in 2016) and AB 168 (Chaptered in 2017). Read our in-depth analysis of AB 2282 here.

Immigration Status. SB 785, which went into effect upon the Governor’s signing on May 17, 2018 with a January 1, 2020 sunset date, prohibits the disclosure of an individual’s immigration status in open court in a civil or criminal action unless the party wishing to disclose the information requests a confidential in camera hearing and the judge deems the evidence relevant and admissible.

What other new laws will fall upon our Californian employers? We’ll keep our eyes and ears glued to his office anxiously waiting to see what may fall next—fueled by our PSL coffees, of course. Stay tuned for our next in-depth update coming after Governor Brown’s last day to sign or veto bills deadline of September 30th.

We are pleased to cross-post with our sister blog, Pay Equity Microblog, the following important and timely blog post regarding the latest in California pay equity legislation.

Seyfarth Synopsis: California Governor Brown signed into law yesterday Assembly Bill No. 2282 to clarify previously passed legislation that prohibits inquiries into an applicant’s salary history. Read on for a recap of Assembly Bill No. 2282.

When AB 168 was signed into law in October 2017, California prohibited employers from asking job applicants for “salary history information.” Under this legislation, California employers must provide “applicants” with the “pay scale” for a position upon “reasonable request.” The law was rather unclear, however, about what each of these three terms meant. On July 18, 2018, Governor Brown signed new legislation, Assembly Bill 2282, designed to clarify those terms and other items in AB 168.

For example, under AB 168, it was not clear whether the term “applicant” meant only external applicants for a position or also current employees applying for the position. AB 2282 clarifies that an “applicant” is an individual who seeks employment with the employer, not a current employee.

Next, it was not clear what information an employer would have to supply when a reasonable request was made for the “pay scale” of a position. AB 2282 defines “pay scale” as a salary or hourly wage range and clarifies that the definition of “pay scale” does not include bonuses or equity ranges.

AB 2282 also clarifies what constitutes a “reasonable request” for pay scale information. A “reasonable request” is defined as a request made after the applicant has completed the initial interview.

Additionally, AB 2282 clarifies that although AB 168 prohibits employers from asking for the applicant’s salary history information, employers may ask about an applicant’s salary expectations for the position.

The new legislation addresses aspects of the California Equal Pay Act as well. It was unclear under what circumstances an employer could use prior salary to justify a disparity in pay. The new legislation attempts to clarify this: “Prior salary shall not justify any disparity in compensation. Nothing in this section shall be interpreted to mean that an employer may not make a compensation decision based on a current employee’s existing salary, so long as any wage differential resulting from that compensation decision is justified by one or more of the factors listed in this subdivision.” Those factors are (1) a seniority system, (2) a merit system, (3) a system that measures earnings by quantity or quality of production; and (4) a bona fide factor other than race or ethnicity, such as education, training, or experience.

For Seyfarth’s full 2018 California Legislative Update, please click here.

Seyfarth Synopsis:  California Governor Jerry Brown recently vetoed the Gender Pay Gap Transparency Act (AB 1209), which would have required California employers to produce pay data, without consideration of legitimate reasons for differences in pay, to the Secretary of State, who then would publish the data on the internet.

Read about this development in a recent post to Seyfarth’s Pay Equity Issues and Insights Blog.

Salary History Webinar tomorrow:  For further discussion about use of wage and salary history information across the country, please join the authors of the blog post for a webinar tomorrow, October 25, 2017, at 11:00 PT/1:00 CT. They will be talking about recent legislation in California, Oregon, and San Francisco (joining Massachusetts, Delaware, Puerto Rico, New York City and Philadelphia) in prohibiting employers from inquiring about wage history information from job applicants. Join them as they summarize the changes and legal implications and describe the practical considerations employers are considering in this new frontier. The webinar is free, but registration is required. Use this link to sign up.

Seyfarth Synopsis: Governor Jerry Brown has till October 15 to approve bills the Legislature sent to his desk by its Friday, September 15, deadline, including bills that would require employers to ”show us the money” for certain employees and to make “mum be the word” for an applicant’s past conviction history.

The 2017 California Legislative Session kicked off on January 4, 2017, with lawmakers introducing over 2,200 bills. Of the many employment-related bills introduced, only a small handful made the Legislative cut. But some, addressed below, could have significant impacts on employers. Will the Governor sign or veto these possible new California peculiarities? We’ll know by his October 15 signing deadline. (Wondering what bills did not make the cut? We’ll include those in our post-October 15 wrap-up.)

Gender Pay Gap Transparency Act. AB 1209—called by some the “public shaming of California employers” bill—would require employers with at least 500 California employees to, beginning July 1, 2019, collect information on differences in pay between male and female exempt employees, by job classification and title, and male and female Board members. The bill would require employers submit the information to the California Secretary of State by July 1, 2020, in a form consistent with Labor Code § 1197.5 (California’s fair pay statute), and, to provide an update to the Secretary every two years. The bill would require the Secretary to publish the information on a public website if the Legislature provides it with sufficient funding. For more detail, click through to our in-depth analysis on AB 1209.

Salary Inquiry Ban. AB 168 would prohibit employers from relying on an applicant’s salary history when deciding whether to offer employment and what salary to offer, and from seeking an applicant’s salary history. The bill expressly authorizes employers, in setting pay, to consider salary history that an applicant discloses voluntarily and without prompting, but affirms Labor Code § 1197.5’s prohibition against using salary history by itself to justify a disparity in pay. The bill would require an employer to provide a job applicant with the position’s pay scale upon reasonable request. The bill would apply to all employers but not to salary information available to the public pursuant to the California Public Records Act or the Freedom of Information Act. This bill comes on the heels of last year’s fair pay legislation AB 1676 and Governor Brown’s veto of AB 1017 (last year’s bill to prohibit salary history inquiries), which veto (he explained) was an effort to give SB 358 (the Fair Pay Act) a chance to work. The new bill also follows in the footsteps of similar legislation in San Francisco, New York City, Philadelphia (stayed pending legal challenge), Delaware, Puerto Rico, Oregon and Massachusetts.

Prior Conviction History of Applicants. AB 1008, dubbed the “Scarlet Letter Act,” by Assembly Member Kevin McCarty on the Assembly Floor, would repeal existing Labor Code § 432.9 and add a section to the Fair Employment and Housing Act (FEHA), which would prohibit an employer with five or more employees from (1) including on any employment application a question seeking disclosure of a job applicant’s conviction history, (2) inquiring into or considering an applicant’s conviction history until after extending a conditional offer of employment, and (3) while conducting a conviction history background check in connection with an employment application, considering, distributing, or disseminating information related to (a) certain arrests not followed by a conviction, (b) referral to or participation in a pretrial or post trial diversion program, and (c) convictions that have been sealed, dismissed, expunged, or statutorily eradicated.

As to an employer that intends to deny employment to a job applicant because of the applicant’s conviction history, this bill would also require the employer to:

  • Make an individualized assessment of whether the conviction history has a direct and adverse relationship with the specific duties of the job—considering the nature and gravity of the offense, the time passed since the offense and completion of the sentence, and the nature of the job held or sought.
  • Notify the applicant in writing of a preliminary decision to deny employment based on that individualized assessment, including disqualifying convictions forming the basis for rescission of the employment offer, a copy of the applicant’s conviction history report, and explanation of the applicant’s right to respond to the preliminary decision before it is final.
  • Allow the applicant specified periods of time to respond, then consider information submitted by the applicant before making a final decision, and then notify the applicant in writing of the final denial or disqualification, of any existing procedure the employer has for the applicant to challenge the decision, and of the right to file a complaint with the DFEH.

The bill’s provisions would not apply to positions with criminal justice agencies, state or local agencies required to conduct background checks, farm labor contractors, and employers required by state, federal, or local law to conduct background checks or restrict employment based on criminal history. The bill would also repeal (because this section would replace) a Labor Code provision prohibiting state or local agencies from asking an applicant for employment to disclose conviction history information.

Reproductive Health. AB 569 would add a provision to the Labor Code prohibiting an employer from taking adverse employment action against an employee or the employee’s dependents or family members for their reproductive health decisions, including the use of any drug, device, or medical service (e.g., birth control, abortions, or in vitro fertilization). An employer that violates this prohibition would be subject to penalties under Labor Code § 98.6, as well as reinstatement, reimbursement of lost wages and interest, and other appropriate compensation or equitable relief. This bill would prohibit employers from attempting to contract out of these requirements, by making null and void any express or implied agreement waiving these requirements. The bill would require employers to include a notice of these employee rights and remedies in its handbook.

This bill is the Legislature’s response to the 2012 U.S. Supreme Court case Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, to provide employees of religiously affiliated institutions the same benefits and protections as other California employees, unless the employee is the functional equivalent of minister, subject to a “ministerial exception” as developed in First Amendment case law. The Legislature agrees with Justice Alito, in his concurring opinion, that the ministerial exception should apply only to an “employee who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.” Supporters of this bill cite cases of employees being fired for getting pregnant while unmarried. The bill’s author, Assembly Member Lorena Gonzalez Fletcher, stated on the Assembly floor that this bill “[is] an issue of basic health, privacy and worker rights.” The bill expressly states that it supplements, and does not limit, any right or remedy available under FEHA.

New Parent Leave Act and Parental Leave DFEH Mediation Pilot Program SB 63, the “New Parent Leave Act” would—through a new section added to the California Family Rights Act—extend CFRA’s protections to smaller employers (with at least 20 employees within 75 miles). The bill would prohibit those employers from refusing to allow employees with more than 12 months and at least 1,250 hours of service to take up to 12 weeks of parental leave to bond with a new child within one year of the child’s birth, adoption, or foster care placement. The bill would provide that an employer employing both parents who both are entitled to leave for the same child need not give more than 12 weeks of leave total to the employees (which may be granted simultaneously if the employer chooses). Further, an employer would be able to recover the costs of maintaining the health plan for employees who decide not to return to work after their leave exhausts because of a reason other than a serious health condition or other circumstances beyond the employee’s control.

SB 63 would also require the DFEH, when it receives funding from the Legislature, to create a parental leave mediation pilot program under which an employer may request all parties to participate in mediation within 60 days of receiving a right-to-sue notice. The bill would prohibit an employee from pursuing any civil action under these provisions (and toll the statute of limitations) until the mediation is complete. The mediation is considered complete when either party elects not to participate or withdraws from mediation, or notifies the DFEH that further mediation would be fruitless.

Retaliation: Expanding The Labor Commissioner’s Authority. SB 306 would authorize the DLSE to investigate an employer, with or without a complaint being filed, when retaliation or discrimination is suspected during a wage claim or other investigation being conducted by the Labor Commissioner. If the Labor Commissioner finds reasonable cause to believe a violation has occurred, the Labor Commissioner may seek injunctive relief. The bill would also allow an employee bringing a retaliation claim to seek injunctive relief upon showing that reasonable cause exists to believe the employee has been subject to adverse action for bringing the claim. The bill would provide that the injunctive relief would not prohibit an employer from disciplining or firing an employee for conduct that is unrelated to the retaliation claim. The bill would also authorize the Labor Commissioner to issue citations directing specific relief to persons determined to be responsible for violations and to create certain procedural requirements for such.

Immigration: Worksite Enforcement Actions. AB 450, known as the “Immigrant Worker Protection Act,” would prohibit employers from allowing immigration enforcement agents to have access to non-public areas of a workplace, absent a judicial warrant, and would prohibit immigration enforcement agents to access, review, or obtain employee records without a subpoena or court order, subject to a specified exception. This bill would also:

  • Require an employer to provide current employees with notices of an immigration agency’s inspection of I-9 Employment Eligibility Verification forms or other employment records within 72 hours of receiving the federal notice of inspection—using a template created by the Labor Commissioner.
  • Require an employer to provide affected employees (meaning employees who may lack work authorization or whose documents have deficiencies) a copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms, upon reasonable request.
  • Require employers to provide to affected current employees, and to an employee’s authorized representative, a copy of the immigration agency notice that provides for the inspection results and written notice of the obligations of the employer and the affected employee arising from the action.
  • Grant exclusive authority to the Labor Commissioner or Attorney General to enforce the provisions of this bill and require that any penalty recovered be deposited in the Labor Enforcement and Compliance Fund.
  • Prescribe penalties for failure to satisfy the bill’s prohibitions and for failure to provide the required notices of $2,000 up to $5,000 for a first violation, and $5,000 up to $10,000 for each further violation.
  • Prohibit an employer from re-verifying the employment eligibility of a current employee at a time or in a manner not required by federal law, and authorize the Labor Commission to recover up to a $10,000 penalty for each violation.

Employee Request: Injury and Illness Prevention Program. AB 978 would require an employer to provide a copy—free of charge—to an employee, or to the employee’s representative, of the company’s injury prevention program within 10 days of a written request. A representative would include a recognized or certified collective bargaining agent, an attorney, a health and safety professional, a nonprofit organization advocate, or an immediate family member. The bill would allow the employer to take reasonable steps to verify the identity of the person making the written request. The bill would authorize an employer to assert impossibility of performance as an affirmative defense in any complaint alleging a violation of these new provisions.

Stay Tuned … check back for a full breakdown of this year’s legislative bills coming after the Governor’s October 15th deadline.