As 2019 comes to an end, it is a great time to audit employment policies and practices. The next series of posts will be a review of a few practices California employers should review on a periodic basis. Obviously, it is important to work with a qualified attorney to ensure compliance, but I wanted to highlight a few issues on these topics that employers can use to start a self-audit that then can be used to save time and money when reviewing with an attorney.
Five areas to audit regarding the hiring process in California:
1. Are applications seeking appropriate information?
- Review applications to ensure they have been updated to meet new legal standards. As a reminder, starting on January 1, 2018, California prohibits employers from asking a job applicant to disclose information about criminal convictions. In addition, be careful about local city ordinances as well, such as Los Angeles and San Francisco.
2. Are new hires provided with required policies and notices?
- Items include Notice to Employee (Wage Theft Prevention Act notice for non-exempt employees); I-9; and Federal and State pamphlets. All California employers are required to post California Law Prohibits Workplace Discrimination and Harassment. In addition, the Department of Fair Employment and Housing (DFEH) has updated many posters that will apply to most California employers (it is important to check the links below near the start of 2020 for most recent documents from the DFEH):
- Transgender Rights in the Workplace (starting January 1, 2018), which applies to businesses with 5 or more employees.
- Your Rights and Obligations as a Pregnant Employee, which applies to businesses with 5 or more employees.
- Family Care and Medical Leave and Pregnancy Disability Leave, which applies to businesses with 20 or more employees.
- See my prior article for a few of the notices and pamphlets that apply to California employers and it is important to review the DFEH’s requirements for displaying the posters.
3. Are new hires provided and acknowledge recommended policies?
- For example, many employers implement meal period waivers for shifts less than six hours.
4. Are hiring managers trained about the correct questions to ask during the interview?
- Are managers trained to not ask applicants about criminal convictions? See above.
- Are they trained to no ask applicants about prior compensation and benefits? See my prior article on California’s prohibition on seeking or taking into consideration an applicant’s prior compensation and benefits.
5. Does the company provide new hires (and existing employees) with arbitration agreements?
- California employers should review with an attorney if implementing arbitration agreements in their workforce given the U.S. Supreme Court’s ruling in May of 2018 upholding the use of arbitration agreements in the employment context. My prior article on the U.S. Supreme Court’s ruling in Epic Systems Corp. v. Lewis is here.
- For employers that have an arbitration agreement in place, the agreement needs to be updated to comply with AB 51 by January 1, 2020. AB 51 prohibits employers from requiring any applicant for employment or any employee to waive any right, forum, or procedure under the California Fair Employment and Housing Act (FEHA) or the Labor Code as a condition of employment, continued employment, or the receipt of any employment-related benefit. AB 51 is California’s renewed attempt to outlaw the practice of employers requiring employees to submit to binding arbitration. Whether AB 51 is preempted by the Federal Arbitration Act is something to be monitored closely.