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Entries in hiring and firing (7)

Thursday
Oct122017

California Employers: Governor Brown Signs Important New Legislation re Parental Leave and Hiring

Lawyer for EmployersEmployment Defense

by Tal Burnovski Yeyni

818-907-3224

 

You can like it. You can hate it. But one thing is certain: California is a trend-setter when it comes to employees’ rights. Maintaining that tradition, Governor Brown just signed Senate Bill 63 and Assembly Bill 168 into law.

California Parental Bonding Leave

Here is the gist:

Senate Bill 63: Parental Leave 

The new legislation provides eligible employees up to 12 weeks parental leave to bond with a new child. Parents may take this leave within one year of the child’s birth, adoption or foster care placement.

An employee is eligible for the leave if s/he has at least 12 months of service with the employer, has at least 1,250 hours of service with the employer during the previous 12-month period, and works at a worksite in which the employer employs at least 20 employees within 75 miles. 

Senator Hannah-Beth Jackson, SB 63’s author, defined the governor’s endorsement as:

...a great victory for working parents and children in California [...] With more women in the workforce, and more parents struggling to balance work and family responsibilities, our policies must catch up to the realities of our economy and the daily lives of working families. No one should have to choose between caring for their newborn and keeping their job.

The bill specifies it will be an unlawful employment practice for an employer to:  

  • Refuse to allow an eligible employee to take up to 12 weeks of the bonding leave;  

  • Refuse to provide a guarantee of employment in the same or a comparable position before the start of the leave;

  • Refuse to maintain and pay for coverage for an eligible employee during the leave (if applicable);

  • Refuse to hire, or to discharge, fine, suspend, expel, or discriminate against an individual because:
    • An individual’s exercise of the right to bonding leave;
    • An individual’s giving information or testimony as to his or her own bonding leave, or another person’s bonding leave, in an inquiry or proceeding concerning the bonding leave.
  • Interfere with, restrain, or deny the exercise of, or the attempt to exercise any right provided with respect to the bonding leave.  

The new law does not apply to employees who work for large employers (50+ employees) and are otherwise eligible for protected leave under the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA).      

If an employer covered by SB 63 employs both parents that are entitled to the leave – that employer is not required to grant bonding leave that would allow the parents leave totaling more than 12 weeks.

There’s more  the legislature also seeks to create a parental leave mediation pilot program.

Under the program, if an employer receives notice regarding an employee’s claim of violation of the parental leave law, the employer may request to mediate the dispute in a special Mediation Division Program.  An employee may not pursue any civil action concerning the parental leave until the mediation is complete. The pilot program will be in effect until January 1, 2020. 

Employers should be mindful that the new bonding leave is provided in addition to pregnancy disability leave. Thus, an employee who works for a covered employer and is disabled by pregnancy, childbirth, or a related medical condition is eligible for up to four months of pregnancy disability leave and up to 12 weeks of bonding leave.  

Assembly Bill 168: Salary Information

Employers may not ask for salary history

AB 168 prohibits all employers from: 

  • Relying on the salary history information of an applicant as a factor in determining whether to offer employment to an applicant or what salary to offer; and

  • Seeking salary history information, including compensation and benefits, about an applicant for employment;

Furthermore, the legislation requires employers to provide, upon reasonable request, the pay scale for a position to an applicant applying for employment.  

As the bill’s author Assemblymember Susan Eggman explained:

The practice of seeking or requiring the salary history of job applicants helps perpetuate wage inequality that has spanned generations of women in the workforce. AB 168 is a needed step to ensure that my 9-year-old daughter, and all women, can be confident that their pay will be based on their abilities and not their gender.

Note, however, that if an applicant, voluntarily and without prompting, discloses salary history information to a prospective employer, the employer may consider or rely on that voluntarily disclosed information in determining the salary for the applicant.  

Employers, update your company policies – both new laws go into effect January 1, 2018. As always, seek experienced employment counsel if confused about state and federal laws regarding leave of absence or hiring and firing practices.

Tal Burnovski Yeyni is an Employment Defense Attorney

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Thursday
Feb162017

Hiring and Firing in Los Angeles: Fair Chance Initiative Update

Lawyer for EmployersEmployment Defense

by Tal Burnovski Yeyni

818-907-3224

 

We told you about Los Angeles’ Ban the Box ordinance in early December. Also known as the Fair Chance Initiative for Hiring Ordinance (FCIHO), the new regulation seeks to reduce recidivism by limiting inquiries regarding applicants’ criminal histories.

The City of Los Angeles recently posted further resources online in connection with the FCIHO. They include: 

  • Rules and Regulations for Implementing FCIHO

  • Notice to Applicants and Employees (for Private Employers or City Contractors)

  • Assessment and Reassessment Forms

  • Sample Letter: Notice to Rescind Employment Offer

  • Complaint Forms (in English and Spanish for applicants and employees) 

If you read our post in December (see link above), you know that employers must include in employment ads notice regarding compliance with the FCIHO.

Employers may not inquire about an applicant’s criminal history until AFTER an initial offer of employment has been made – in other words, not on a job application or during the interview or selection process.  If an applicant provides information/documents regarding criminal history, any decision to withdraw or cancel the conditional offer of employment may not be made until the employer complies with specific notice requirements and performs written assessment.

The Rules and Regulations suggest that the employer shall at least consider the following factors in the assessment: 

  • What is the nature and gravity of the offense? (The harm caused by the criminal conduct should be considered)

  • How much time has passed since the offense? (Convictions remote in time are less significant than similar more recent ones)

  • What is the nature of the job duties and responsibilities? (Consider the job’s essential functions and the circumstances under and the environment in which the job is performed.)

  • Is the employer looking at ONLY convictions? Arrests cannot be considered in employment decisions. 

Duty to Maintain Records for a Period of Three Years. Employers are required to retain all records and documents related to applicants’ employment applications and the written assessment and reassessment for a period of three years following the receipt of an applicant’s employment application.  The Rules and Regulations specify that if an employer relied on oral information to form a determination of Adverse Action, the employer should summarize this information by putting it in writing and maintain it with the employment records.  For example, a verbal reference check with former Employer should be documented.

Of course, certain exceptions still apply, i.e. if the employer is mandated by federal or state law to obtain information regarding conviction, especially if the position requires the use of a firearm, or if the employer is prohibited by law from hiring applicants with criminal convictions. Also, some applicants may be prohibited from holding certain positions because of their criminal histories.

Remember, fines on employers who violate the Rules and Regs of FCIHO will be imposed as of July 1, 2017.

Tal Burnovski Yeyni is an attorney in our Employment Practice Group

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Thursday
Dec292016

Employer Responsibilities re Mental Health Conditions

Wage and Hour Defense Attorney

 

by Sue M. Bendavid & Tal Burnovski Yeyni

 

The Equal Employment Opportunity Commission recently issued a “User-Friendly Document” explaining the rights of job applicants and employees with mental health conditions. In doing so, the EEOC has confirmed that individuals with such conditions are protected from discrimination and harassment.

Employment Law Mental Health Disability

As noted, employers cannot fire, deny a job, deny a promotion or force an employee to take leave because of a mental health condition (there are exceptions when employees pose a “direct threat” to safety or cannot perform their jobs). The guidelines remind employers of the obligation to provide reasonable accommodations that would enable employees perform their jobs.

In our work advising and counseling employers, we often encounter employers who struggle with how to properly respond to disabled employees.

Whether it is an employee’s injury, mental health condition or stress, employers face confusion as to their legal obligations. Since failure to communicate and/or accommodate may sometimes result in costly litigation, we are providing a few basic guidelines to assist employers when facing similar issues.

Do not discriminate against employees with a mental or physical health condition:

Employers do not have to hire or retain employees in jobs they cannot perform, or employ people who pose a “direct threat” to safety (based on objective evidence, not merely myths and stereotypes). However, firing an employee or rejecting an applicant with a disability (whether physical or mental) is prohibited, unless the employee or applicant cannot perform the job with reasonable accommodation.

For example: Jane notified her employer she was depressed and needed two weeks off. Her employer believed depression was not a “real disease” and rejected Jane’s request without further discussion. When Jane failed to show up because of her condition, her employer fired her for unpermitted absence.

The employer’s actions in this scenario were potentially unlawful. When Jane gave notice of her mental condition and asked for accommodations in the form of time off, her employer was required to engage in an “interactive dialogue” (explained below) rather than rejecting her request for time off and then terminating her employment.

Even if you don’t believe an employee’s health condition and request for accommodation are legitimate, you must at least engage in an interactive dialogue. Under some circumstances (e.g., if the need for an accommodation is not obvious), you can ask the employee to provide reasonable medical documentation to confirm the existence of the disability and the need for reasonable accommodation.

Timely engage in “interactive dialogue” with the employee, even if the employee does not “officially” ask for accommodations:

This can be tricky. Under California law, an employer is required to initiate the interactive process when: (1) the employee requests an accommodation; or (2) the employer otherwise becomes aware of the need for an accommodation through a third party or by observation.

For example: Robert was cleaning a window when he fell off a ladder and hurt his hand. Emily, Robert’s supervisor, witnessed the incident. The next day, Robert came back to work with bandages on his hand. Robert never asked for an accommodation but was struggling with his usual manual tasks. As Robert never asked for an accommodation, Emily assumed Robert did not require one.

Emily assumed wrong. Since Emily witnessed the incident and saw Robert’s bandages she was on notice regarding his possible need for accommodations. Even if Robert did not need accommodations, it was Emily’s duty, as the employer, to engage in the interactive process with Robert to determine whether accommodations could be provided.

Even if the employee is not eligible for protected time off under the Family Medical Leave Act or California Family Rights Act, consider time off as reasonable accommodation:

Family and medical leave laws generally cover employers with 50 or more employees. However, even if you are not a covered employer, you may be large enough and must consider whether protected time off can be provided as a reasonable accommodation (See also 2 CCR 11065(p)(2)(M)).

Don’t rely on the undue hardship defense:

Generally, employers are not required to accommodate a disabled employee or applicant if the accommodation would cause an “undue hardship” to the employer. The term “undue hardship” generally means an accommodation that is unduly costly, extensive or substantial, or that would fundamentally alter the nature of the business’s operation. (See definition and factors to consider in 2 CCR 2 11065(r))

However, employers are advised to use the “undue hardship” defense narrowly and only when the accommodations might place extensive financial burden or would prevent the ongoing operation of the business. Further, employers should engage in the interactive dialogue before concluding an undue hardship exists.

For example, an applicant with a severe vision impairment applies for employment with a small market that has only four other employees. The applicant requires assistance to work the register by having another employee present at all times. The business in question would not have to provide the accommodation if, for example, it could not afford the cost of the additional staff or could not afford the cost of remodeling to accommodate two employees at the same time. (From California Department of Fair Employment Housing guidelines).

Keep an employee’s mental or physical health condition confidential:

Medical information that employers obtain regarding the medical or mental conditions or history of an employee or applicant must be maintained in separate medical files and kept confidential. The employee’s medical information may be discussed only under the following circumstances:

1. Supervisors and managers may be informed of restriction(s) on the work or duties of employees with disabilities and necessary reasonable accommodations; and

2. First aid and safety personnel may be informed, where appropriate, that the condition may require emergency treatment; and

3. Government officials investigating compliance are to be provided relevant information on request. (See 2 CCR 11069(g))

Document, Document, Document:

We cannot emphasize this enough. A little documentation can go a long way.

When you meet with an employee as part of the interactive process, prepare a written summary of the meeting and indicate the reasonable accommodation options discussed. If you decide to grant the employee’s request, document that as well. If you deny the employee’s request because of undue hardship, put that in writing and explain the reasons for the denial. You should invite the individual to further engage in the interactive process and keep the door open to other options. In fact, any change in accommodations should be in writing.

Bottom line:

A little communication and documentation can go a long way and prevent costly litigation. Don’t rely on stereotypes or your personal knowledge and beliefs when an employee requests accommodations or gives notice of medical or psychological conditions. Meet with the employee, discuss his/her restrictions and discuss possible accommodations, if necessary.

As always, if you have questions or concerns regarding your obligations as an employer, contact an attorney in our Employment Practice Group: 818-990-2120.

Sue M. Bendavid and Tal Burnovski Yeyni are  Employer Defense Attorneys at our Firm. 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Monday
Dec052016

Criminal Background Checks: Banning the Box in Los Angeles

Lawyer for EmployersEmployer Compliance Attorney

Employer Update 02.09.17

The City updated its website with further information and resources for both Private Employers and City Contractors, including official notices for applicants and employees, sample letters and rules for implementing the Fair Chance Initiative for Hiring Ordinance.

Please visit this City of Los Angeles webpage to access these: Ban the Box resources.

 

 

by Tal Burnovski Yeyni

818-907-3224

 

Los Angeles City is on its way to approve a new Ordinance prohibiting employers with 10 or more employees from including on any application for employment any question that seeks the disclosure of an applicant’s criminal history. The Ordinance was approved on Wednesday, November 30, 2016 and is rescheduled for a second reading on December 7, 2016 (commentators say this second hearing is merely a formality).

Los Angeles' Ban the Box

More commonly known as the Ban the Box or Fair Chance Initiative, the Ordinance aims to reduce recidivism by providing more job opportunities to those with a criminal history, from relapsing into criminal behavior.

Ban the Box’s Primary Parameters

Who May Be Held Liable? The Ordinance defines “Employer” as any “individual, firm, corporation” etc., that is located or doing business in the City and that employs 10 or more employees. The definition also includes owners, management, supervisors and employment agencies.

No Inquiry Permitted Until a Conditional Offer of Employment is Made. An employer may not, at any time or by any means, inquire about or require disclosure of an applicant’s criminal history unless and until a conditional offer of employment has been made to the applicant.

Notice to Employee before an Adverse Action Is Required. If an applicant provides information/documents regarding criminal history, any decision to withdraw or cancel the conditional offer of employment may not be made until the employer complies with specific notice requirements and allows the applicant an opportunity to provide information regarding the accuracy of his/her criminal history or information regarding other factors that should be considered.

These include mitigating factors or evidence of rehabilitation. The notice requirements also include preparation of written assessment and reassessment by the employer that links the aspects of the criminal history with risks inherent in the duties of the position.  

Hiring and FiringNotice Requirements in Job Posts. Any job posts or employment ads must include a statement that the employer will consider for employment qualified applicants with criminal histories in a manner consistent with the requirements of  the Los Angeles Fair Chance Initiative for Hiring.  

Additionally, employers are required to post a notice informing applicants of the provisions of the Ordinance in a conspicuous place at every workplace, job site or other location in the City under the employer’s control visited by applicants.  

Duty to Maintain Records for a Period of Three Years. Employers are required to retain all records and documents related to applicants’ employment applications and the written assessment and reassessment for a period of three years following the receipt of an applicant’s employment application.  

Exceptions. The criminal history inquiry prohibition, the assessment and reassessment requirements, and the duty to give notice to applicants in all solicitations or advertisements seeking applicants do not apply if: (1) the employer is required by law to obtain information regarding conviction; (2) the position requires possession or use of a firearm; (3) an individual who has been convicted of a crime is prohibited by law from holding the position sought by the Applicant, and; (4) an employer is prohibited by law from hiring an applicant who has been convicted of a crime.  

Fines for Failure to Comply Will Be Imposed This Summer. As of July 1, 2017 the City may impose fines of up to $500 for failure to (1) provide notice to applicants in solicitations or advertisements; (2) post notice in a conspicuous place; or (3) retain records as required. For any other violation of the Ordinance, the City may impose a fine of up to $500 for the first violation; up to $1,000 for the second violation and; up to $2,000 for the third and subsequent violation.  Administrative fines paid by the employer may be awarded to the applicant or employee, up to a maximum of $500 per violation.  

Approximately half of America's states have Ban the Box laws, though most, including California, currently apply only to public employers.

Tal Burnovski Yeyni is an attorney in our Employment Practice Group

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Tuesday
Mar012016

Employers: Criminal History Inquiries May Get Tricky 

Lawyer for EmployersAttorney for Employers

 

by Tal Burnovski Yeyni

818-907-3224

 

 

 

Employment Background ChecksProposed Amendment to California Code of Regulations 

Last week the California Fair Employment and Housing Council of the Department of Fair Employment and Housing (or, in short, the Council) announced its proposed amendment to the California Code of Regulations, aiming to substantially limit the use of criminal history information in employment decisions. 

The use of criminal background checks in the employment context has long been hotly contested. The argument against using the info is that it may have a disparate impact upon a protected class.

According to the U.S. Equal Employment Opportunity Commission’s ("EEOC") 2012 Guidance on Criminal Background Checks, an employer's criminal record screening policy or practice may be biased against a Title VII-protected group (i.e., those protected for their race, gender, national origin, etc.). To avoid discrimination claims, employers must demonstrate that the policy or practice is job-related for the positions in question, and consistent with business necessity.

California state law also prohibits employers from asking job applicants to disclose information or otherwise obtain information about:  

  • Arrests or detentions not resulting in conviction;

  • Information concerning a referral to or participation in a criminal diversion program (a criminal diversion program is a work or education program as part of probation);

  • Convictions for most marijuana possession offenses more than two years old;

  • Convictions that have been judicially dismissed or ordered sealed pursuant to law per Labor Code §§ 432.7, 432.8

There are several exceptions to the prohibition, e.g., when the employer is required by law to obtain the information, the employer is prohibited by law from hiring an applicant who has been convicted of crime, etc. Labor Code §432.7.

New Rules for Background Checks?

 

The proposed amendment seeks to introduce regulation 11017.1 "Consideration of Criminal History in Employment Decisions."

It would set forth statutory limitations when seeking or considering information regarding various types of criminal history (as stated in Labor Code §§432.7, 432.8). This includes the limitations on state agencies from asking applicants about conviction history, until the agency has determined that the applicant has met the minimum employment qualifications (Labor Code § 432.9).  It also includes additional limitations on employers pursuant to local laws or city ordinances (e.g., San Francisco's Fair Chance Ordinance.)    

Most importantly, the proposed new regulation mirrors the EEOC guidance regarding criminal background checks. It states:

"Depending on factors such as the type of convictions considered, the job position, and the geographic bounds of the applicant pool, consideration of other forms of criminal convictions ... may have an adverse impact on individuals on a basis protected by the [Fair Employment and Housing Act], including, but not limited to, gender, race and national origin." 

Thus, if the policy or practice re criminal information creates an adverse impact, the employer has the burden of showing that the policy is justifiable because it is job-related and consistent with business necessity 

  • The criminal conviction consideration policy or practice needs to bear a demonstrable relationship to successful performance on the job and in the workplace and measure the person’s fitness for the specific job, not merely to evaluate the person in the abstract.  In order to establish the "job-related and business necessity" criteria, the employer must demonstrate that the policy or practice is appropriately tailored, taking into account at least following factors:

a. The nature and gravity of the offense or conduct;

b. The time that has passed since the offense or conduct and/or completion of the sentence; and

c. The nature of the job held or sought 

  • Demonstrating that the policy is appropriately tailored to the job requires the employer to:

a. Show that any bright-line, across the board conviction disqualification can properly distinguish between applicants or employees that do and do not pose an unacceptable level of risk, and that the convictions being used to disqualify have a direct and specific negative bearing on the person's ability to perform the duties or responsibilities necessarily related to the position; or

b. Show that the employer conducts an individualized assessment of the circumstances or qualifications of the applicants or employees excluded by the conviction screen.

  • Note that per the proposed rule, conviction disqualification policies that do not incorporate an individualized assessment and includes a conviction related information that is seven or more years old are subject to a rebuttal presumption that they are not sufficiently tailored.  

  • Finally, the proposed rule seeks to require employers to give employees notice before taking an adverse employment action regarding the disqualifying conviction and allow the individual a reasonable opportunity to present evidence that the information is factually inaccurate.  If the individual establishes that the record is factually inaccurate, then that record cannot be considered in the employment decision. 

But that's not all. Even if the employer demonstrates that its background check policy or practice is job-related and consistent with business necessity, adversely impacted employees or applicants may make an FEHA claim if they can demonstrate that there is a less discriminatory policy or practice that serves the employer's goals as effectively as the challenged policy or practice  – such as a more narrowly targeted list of convictions or another form of inquiry that evaluates job qualifications or risk, without significantly increasing the cost or burden on the employer.

Hearing, "Sentencing" & Bottom Line for Employers

 

The Council will hold a public hearing regarding the proposed amendment on April 7, 2016. Employers or other interested parties may submit written comments relevant to the proposed amendment until 5:00 p.m. on April 7, 2016.  

If the amendment will be adopted employers who use information regarding conviction history in making an employment decision will have to review their policies or practices to determine whether they can demonstrate that their policies are job related and consistent with business necessity.    

 

Tal Burnovski Yeyni is an attorney in our Employment Practice Group

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

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