Chamber warns employers to change hiring practices for 2018

Over the next couple of months the Oxnard Chamber will be running a series of articles about changes in employment laws for 2018. Since California has a fulltime legislature which introduces thousands of bills every year, there is certainly no shortage of new laws that all employers must comply with. Today we will look at hiring practices.

Employers will need to update their employment application questions. One of the most significant changes for 2018 came into existence via AB 168. The legislation bans employers from asking about a job applicant's salary history, including information on compensation and benefits. Employers are also banned from seeking the information through an agent, such a third-party recruiter.

This new law also prohibits employers from relying on salary history information as a factor in determining whether to hire the applicant or how much to pay the applicant. However, an employer may consider salary information that is voluntarily disclosed by the applicant without any prompting. AB 168 further requires an employer to provide a job applicant, upon reasonable request, with the pay scale for the position.

AB 1008 is “ban-the-box” legislation that prohibits employers with five or more employees from asking about criminal history information on job applications and from inquiring about or considering criminal history at any time before a conditional offer of employment has been made. There are limited exemptions for certain positions, such as those where a criminal background check is required by federal, state or local law.

Once an employer has made a conditional offer of employment, it may seek certain criminal history information; however, some criminal history information, such as sealed or expunged convictions and juvenile crimes, is still off limits.

If an employer intends not to hire the applicant because of a prior conviction, the employer must first conduct an individualized assessment to determine whether the conviction has a direct and adverse relationship with specific job duties that justifies denying employment. The employer must consider specified factors in making this assessment.

Any preliminary decision not to hire because of a conviction history requires written notice to the applicant, who must be given the opportunity to respond. A specific timeline and process must be followed. The employer must consider any information provided by the applicant before making a final decision.

If the employer makes a final decision to deny employment in whole or in part because of the criminal conviction, written notice to the applicant is again required. Specific information must be included in the final determination notice.

Take note that the Department of Fair Employment and Housing passed criminal history regulations earlier this year. To the extent that this new law conflicts with those earlier regulations, the new law takes precedence.

In addition to AB 1008, Governor Brown signed a number of criminal justice reform laws, including SB 393, which authorizes record sealing and removes barriers to employment for those arrested but never convicted of a crime.

The Immigrant Worker Protection Act (AB 450) — part of a package of bills the governor signed to create a “sanctuary state” — provides workers with protection from immigration enforcement while on the job.

AB 450 prohibits employers from:

• Providing federal immigration enforcement agents access to nonpublic areas of a business without a judicial warrant; and
• Providing agents access to employee records without a subpoena or judicial warrant. This prohibition does not apply to Form I-9 or other documents for which a Notice of Inspection was provided to the employer. However, employers must follow specific requirements related to Form I-9 inspections.

An employer that provides access in violation of AB 450 can be fined anywhere from $2,000 to $5,000 for a first violation and $5,000 to $10,000 for each subsequent violation.

Regarding Form I-9 inspections, AB 450 requires employers to:

• Post a notice to all current employees informing them of any federal immigration agency’s inspections of Forms I-9 or other employment records within 72 hours of receiving Notice of Inspection. AB 450 requires that the notice contain specific information about the inspection and that it be posted in the language normally used to communicate employment-related information. Employers must comply with this posting requirement beginning January 1, 2018, even though the Labor Commissioner has until July 1, 2018, to create a model posting template. The notice must also be given to a collective bargaining representative, if any.
• Provide a copy of the federal Notice of Inspection to an affected employee upon reasonable request.
• Give each affected employee and an employee’s collective bargaining representative a copy of the inspection results and a written notice of the employer’s and employee’s obligations arising from the inspection. This must be done within 72 hours of receiving the results and specific information must be included. An “affected employee” is one identified by the inspection results as potentially lacking work authorization or having document deficiencies.

An employer that fails to follow these notice requirements can be fined between $2,000 to $5,000 for a first violation and $5,000 to $10,000 for each subsequent violation.

This bill also makes it unlawful for employers to re-verify the employment eligibility of current employees in a time or manner not allowed by federal employment eligibility verification laws. Federal law already prohibits unlawful re-verification practices, such as re-verification of unexpired documentation. However, this bill adds an additional state civil penalty of up to $10,000.

Finally, AB 1221 requires bartenders and other alcohol servers to receive mandatory training on alcohol responsibility and to obtain an alcohol server certification. Businesses with a license to serve alcohol must ensure that each alcohol server they hire or employ has the certification. The training will include such topics as how alcohol impacts the body, drunk driving laws and how to prevent service to intoxicated patrons. These requirements go into effect in 2021, after the course is developed by the Department of Alcoholic Beverage Control. (Note: The city of Oxnard already has a Responsible Beverage Server program and certification.)

As always, employers with questions about new and existing employment laws should seek the advice of legal counsel. The Oxnard Chamber strives to keep its members informed about new laws that could affect their business operations.

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