It is important for employers in California to make sure that their front-line managers dealing with employees on a day-to-day basis are knowledgeable about different employment issues that routinely come up in the employment context.  This week’s Friday’s Five covers five areas that employers should review with their managers to ensure they inform the appropriate executives about any potential issues in the workplace:

1. At-will employment

Under California law, it is presumed that all employment is terminable at-will. California Labor Code section 2922 provides: “An employment, having no specified term, may be terminated at the will of either party on notice to the other.” The at-will doctrine means that the employment relationship can be terminated by either party at any time, with or without cause, and with or without advanced notice. There are some major exceptions to this rule, but generally California law recognizes that employers and employees may, at any time, and for any legal reason, terminate the employment relationship.  Of course managers should consult with human resources or the appropriate executive before terminating an employee, but managers need to understand that they can terminate employees with or without cause and should be trained on the legal parameters of at-will employment.

2. Anti-harassment, discrimination and retaliation

California employers with 50 or more employees are required to provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees who are employed as of July 1, 2005, and to all new supervisory employees within six months of assuming a supervisory position.  All covered employers must provide sexual harassment training and education to each supervisory employee once every two years.  In 2015, California requires that a portion of the training also address “abusive conduct.”  More information about what topics must be covered in the training, who qualifies to provide the training, as well as other requirements about the training can be found here.

Managers should also be trained about the employer’s obligation to prevent sexual harassment in the workplace.

3. Timekeeping requirements

California law requires employers to track start and stop times for hourly, non-exempt employees. The law also requires employer to track the start and stop times for the employee’s thirty minute meal periods. The time system needs to be accurate, and the employer needs to be involved in the installation and setup of the system. Do not simply use the default settings for the hardware and software. Understand what the system is tracking and how it is recording the data. Since the statute of limitations for California wage and hour violations can extent back four years, it is recommended that employers take steps to keep these records at least four years.  Employers should also have a complaint procedure in place and regularly communicate the policy to employees in order to establish an effective way to remedy any issues.

4. Meal and rest break requirements

As I’ve written about many times previously, employers must have a compliant meal and rest break policy.  Indeed, given the California Supreme Court’s ruling in Augustus v. ABM Security Services in December 2016, employers should review their rest beak policy to ensure it complies with this ruling.

5. Responding to requests for records and legal notices

There are many different Labor Code provisions that obligate the employer to provide current and former employees with a copy of their personnel files and/or payroll records.  For example, Labor Code section 432 permits employees to obtain a copy of any document they signed, Labor Code section 1198.5 allows current and former employees to obtain copies of their personnel records, and Labor Code section 226(c) permits employees to inspect or copy payroll records within 21 days after making a request to do so.

Managers need to be trained to immediately inform management or Human Resources about any requests to obtain these records by current and former employees.  In addition, managers should be trained to immediately report receiving any legal notices, including the following:

I’m moderating a panel discussion on best practices for how to hire and retain good employees at the Western Food Service and Hospitality Expo (WFHE).  The panelists are Joseph Pitruzelli owner of Wurstküche, Francis Drelling General Counsel at Specialty Restaurants Corporation, Naz Moin former director of Human Resources at PizzaRev, and Madelyn Alfano owner of Maria’s Italian Kitchen.  It is on Monday, August 20 at 4 p.m. in the Education Theater (session number S127.  Hope you join us if you are attending the Expo.

In addition, in connection with the California Restaurant Association (CRA), my firm is offering a special an in-person training session that will comply with all the requirements outlined in the regulations regarding California’s Mandatory Sexual Harassment Prevention Training for supervisors (AB 1825) . Supervisors for large employers are required to take this training every two years.  As a bonus, Sexual Harassment Prevention registrants will gain complimentary access to the WFHE show floor, valid day of training (Tuesday, 8/21/18).  The training is at the LA Convention Center, and will take place from 9 to 11:30 a.m. (the show starts at 11 a.m.).  This training is offered to CRA members for FREE and $25 for non-members. Both members and non-members will need to register online here before the day of the training.  Click here for more details about the training and to register.

My firm will have a booth at the show again this year, so if you attend the show, be sure to stop by and say hello.  We are at Booth #1543 (across the aisle from the California Restaurant Association’s booth).  The Expo runs from August 19 to 21 and is at the LA Convention Center.

Also, please stop by our booth and say hi to us if you are attending.  We have some nice swag for readers of the blog!

The California Supreme Court issued a monumental ruling this week regarding the test used in determining whether a worker can be classified as an independent contractor.  In the case, Dynamex Operations West, Inc. v. Superior Court, the plaintiff brought a class action complaint alleging five causes of action arising from Dynamex’s alleged misclassification of employees as independent contractors: two counts of unfair and unlawful business practices in violation of Business and Professions Code section 17200, and three counts of Labor Code violations based on Dynamex’s failure to pay overtime compensation, to properly provide itemized wage statements, and to compensate the drivers for business expenses. Here are five key issues California employers must understand about the ruling:

1. The determination of whether a worker is an independent contractor or an employee is inherently difficult.

The determination of whether an employee is an independent contractor or employee has been a difficult issue that does not provide a bight line in many cases.  The California Supreme Court recognized this in Dynamex, stating:

As the United States Supreme Court observed in Board v. Hearst Publications (1944) 322 U.S. 111, 121:  “Few problems in the law have given greater variety of application and conflict in results than the cases arising in the borderland between what is clearly an employer-employee relationship and what is clearly one of independent, entrepreneurial dealing.  This is true within the limited field of determining vicarious liability in tort.  It becomes more so when the field is expanded to include all of the possible applications of the distinction.”

2. The ABC Test: Part A: Is the worker free from the control and direction of the hiring entity in the performance of the work, both under the contract for the performance of the work and in fact?

In making the determination of whether a worker is properly considered the type of independent contractor for which the wage order does not apply, the California Supreme Court adopted the “ABC” test.  This test is used in other jurisdictions in a variety of contexts to distinguish employees from independent contractors.

To illustrate the first part of the ABC test, the Part A control test, the Court provided the following examples:  In Western Ports v. Employment Sec. Dept. the company “failed to establish that truck driver was free from its control within the meaning of part A of the ABC test, where the company required driver to keep truck clean, to obtain the company’s permission before transporting passengers, to go to the company’s dispatch center to obtain assignments not scheduled in advance, and could terminate driver’s services for tardiness, failure to contact the dispatch unit, or any violation of the company’s written policy.”  Alternatively, in Great N. Constr., Inc. v. Dept. of Labor a construction company “established that worker who specialized in historic reconstruction was sufficiently free of the company’s control to satisfy part A of the ABC test, where worker set his own schedule, worked without supervision, purchased all materials he used on his own business credit card, and had declined an offer of employment proffered by the company because he wanted control over his own activities.”

3. Part B: Does the worker perform work that is outside the usual course of the hiring entity’s business?

To illustrate the point, the Court provided the following analysis:

Workers whose roles are most clearly comparable to those of employees include individuals whose services are provided within the usual course of the business of the entity for which the work is performed and thus who would ordinarily be viewed by others as working in the hiring entity’s business and not as working, instead, in the worker’s own independent business.

The Court set forth a few examples: When a retail store hires an outside plumber to repair a leak in a bathroom on its premises or hires an outside electrician to install a new electrical line, the services of the plumber or electrician are not part of the store’s usual course of business and the store would not reasonably be seen as having suffered or permitted the plumber or electrician to provide services to it as an employee.

Alternatively, when a clothing manufacturing company hires work-at-home seamstresses to make dresses from cloth and patterns supplied by the company that will then be sold by the company, or when a bakery hires cake decorators to work on a regular basis on its custom-designed cakes, the workers are part of the hiring entity’s usual business operation it would be reasonable to view these workers as employees.

4. Part C: Is the worker customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity?

The Court held that the term “independent contractor,” “ordinarily has been understood to refer to an individual who independently has made the decision to go into business for himself or herself.”  (See, e.g., Borello, supra, 48 Cal.3d at p. 354 [describing independent contractor as a worker who “has independently chosen the burdens and benefits of self-employment”].)  Such an individual generally takes the usual steps to establish and promote his or her independent business….”  Evidence of this will be the workers’ own business incorporation, licensure, advertisements, offering to provide services to the general public or other potential customers.  Alternatively, a worker is not engaged in an independent established trade usually if the hiring company unilaterally designates the worker as an independent contractor.  In addition, “[t]he fact that a company has not prohibited or prevented a worker from engaging in such a business is not sufficient to establish that the worker has independently made the decision to go into business for himself or herself.”

The hiring entity’s failure to prove any one of these three parts of the ABC test will be result in a finding that the worker is an employee and not an independent contractor for purposes of the California wage orders.

5. Employers bear the burden of proof in establishing workers are independent contractors.

Employers had the burden prior to the California Supreme Court’s ruling in Dynamex, but the court reinforced that the employer bears the burden of proof when establishing a worker as an independent contractor.  Employers must be careful in making the determination that workers are independent contractors, as there are many wage and hour penalties for unpaid wages, unpaid overtime, and missed meal and rest breaks, in addition to the large civil penalties under Labor Code section 226.8, which is a fairly recent law which added penalties from $5,000 up to $25,000 for each violation.

The California Fair Employment and Housing Act (FEHA) requires employers to provide a reasonable accommodation for an individual with a disability to perform the essential functions of the job unless it would cause an undue hardship on the employer. Common reasonable accommodations include changing job duties for the position, allowing a leave of absence for medical care, modifying work schedules, or providing mechanical or electrical aids.

An employer may discharge an employee with a physical disability or medical condition where the employee, because of that physical disability or medical condition, “is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations.” (Gov. Code § 12940, subds. (a)(1), (a)(2).)

The issue in many reasonable accommodation and disability cases involves a dispute over what duties are “essential functions” of a job.   This Friday’s Five sets forth five critical aspects of the analysis used to determine the essential functions of a position:

1. The function may be essential because the reason the position exists is to perform that function.

2. The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed.

3. The function may be highly specialized, so that the individual in the position is hired for his or her expertise or ability to perform the particular function.

4. Evidence reviewed in making the determination of whether a function is essential includes:

(A) The employer’s judgment as to which functions are essential.

(B) Written job descriptions prepared before advertising or interviewing applicants for the job.

(C) The amount of time spent on the job performing the function.

(D) The consequences of not requiring the incumbent to perform the function.

(E) The terms of a collective bargaining agreement.

(F) The work experiences of past incumbents in the job.

(G) The current work experience of incumbents in similar jobs.

5. Job descriptions are essential.

In making this determination the the job advertisement and the job description for the position at issue will also be reviewed.  Job descriptions should be carefully drafted and updated on a regular basis so that they can be utilized in establishing the essential duties of a job in disability litigation.

Clients come to my firm often frustrated by California employment laws and their complexity, the raising costs of doing business in California (such as the higher minimum wage), and the legal system in general.  I have to agree that California poses one of the most difficult business environments businesses have to operate within, but I come back to thinking that many of the issues the clients voice frustration with can be managed if they are given the tools to do so.  This Friday’s Five lists five things every employment attorney should tell their California clients:

1. Litigation is expensive (and no, I’m not just talking about legal fees).

Two lessons here:  1) Don’t approach litigation with the attitude that you are fighting for principle (unless you have unlimited resources), and 2) focusing on human resources/policy development/legal compliance before litigation (see #5 below) can help prevent litigation and save resources.  For most businesses, litigation should be avoided, but to the extent it cannot be avoided, companies should usually view the transaction not as a personal vendetta, but as a business transaction.  Executives should weigh the costs of litigation versus the benefits just as they do in any other business decisions to determine whether to litigate the case or make an attempt at settlement.  But don’t approach this decision based on any attorney’s advice that litigation can be completed fast and inexpensively.  As there are defense costs, but as just or possibly costlier is the time and effort that the company and its managers and employees will have to spend defending the litigation instead of running the business.  This is often a hidden cost that must be taken into consideration.

2. Treating people with respect will likely result in less litigation.

I understand, it seems like California employment law is always adding new requirements on employers that are difficult to comply with.  However, with a small amount of time and attention, most of the issues that present the largest amounts of potential liability for employers can easily be managed.  But for the few occasions when it is legally unclear about what action the company should take, or if legal counsel cannot be reached in time for a decision where the law is not clear, employers that treat the employee with respect will usually avoid litigation.  I believe that, for the most part, employees understand that employers/managers/supervisors must make difficult decisions.  When the employee is treated with respect during a difficult employment decision, even though they might not like the decision, they will probably understand why it was made, and most likely will not hold a grudge against the company.

3. When in doubt, document.

As a litigator, the worse feeling I have is when the employer provides me with an employee personnel file for a problem employee, but the personnel file contains less than a few pages.  Employers’ primary defenses to many employment lawsuits will be won or lost on the documentation created and maintained by the employer.  The employee that believes they were wrongfully terminated will face a much tougher case if there were a dozen documented performance write-ups in their file setting for the date and examples of what the employee did or failed to do.  For additional information, see my prior post, Five best document storage and retention practices for California employers.

4. Train front line managers and supervisors.

A company’s managers and supervisors are the eyes and ears of the company.  They must be well trained about what issues can create legal liability for the company, as well as be trained in new developments in the law (for example, so they are not asking about criminal histories during the interview process since the beginning of 2018) and are trained about how to be managers (and treat people with respect).  This training for managers/supervisors is the difference between a good and a great company.

5. A small investment in human resources will provide a return.

As I wrote about last week, human resource departments need to have a more critical role in organizations and should be viewed on the same level as marketing and finance departments.  Giving HR managers budgets to proactively update policies, handbooks, and training sessions for managers will provide a positive return to the company.  Now it may not be an immediate net gain on the financials, but if one lawsuit is avoided because of the proactive measures put into place, this will be money well spent (see item #1).

I recently read an article from the Harvard Business Review published in 1981, Managing Human Resources, by William Skinner.  The article raised great points about the lack of respect human resource departments receive in companies at the time.  The article is as timely as when it was published nearly 40 years ago.   Skinner’s article really hit a nerve for me in that companies manage, measure results, and set long terms goals for their functional departments, but these same type of management tools are not often used in human resources.  The article also illustrates that the issues existing nearly 40 years ago, are still persistent today.  Here are the five key lessons for me from the article illustrating why human resources is such a difficult field to manage:

1. Obtaining employee commitment to a company is difficult

Aligning the long term goals of a company with the often short term goals of employees is difficult at best.  Companies are working on 5 or 10 year plans, while employees are focused on the next year’s wages, job titles and potentially moving to another company for a better position.  As Skinner points out, “it’s rosy idealism to think that every employee is going to turn on and perform with 100% devotion to a company and its objectives.  Short-term economic interests are in clear conflict….Further, political factors such as Nader’s Raiders and the anti-big-business wing of the Democratic party exploit employees’ distrust of business, the corporation, and managers, whom employees often see as being out for themselves and siding with their corporate basses against the employee.”

So what is HR’s role to help with employee commitment?  Executives in the company need to understand that HR’s role is a long-term function, and provide HR with the time to develop and execute goals over a 5 year period (or even longer as Skinner recommends).

2. As companies grow, they lose their competitive advantage

Larger the company, the larger the risks are in trying new approaches to HR or employment practices.  Skinner points out that larger companies are inherently more conservative about innovation: “Decisions become more sensitive, have longer shadows, and, understandably, executives may become more cautions and may procrastinate or pass the buck when they can.”  Small start-up companies have been utilizing their size and ability to adapt quickly has a competitive advantage in the technology industry for years now based on the same assumption – big companies are less likely to innovate because they are the established player.  As the incumbent, the management team takes a defensive posture, not an innovative one.

3. Hiring is hard

Skinner sets outs that hiring is difficult: “Subtle differences in job and personal skills and in attitudes toward work and employers have made selecting an outstanding set of employees even more difficult.”  Skinner cites “mass education” as an issue that makes selecting employees even harder.  More of the population has a college degree, but this does not necessarily a good indication of how well the employee will do.  This is especially truer today.

The hiring aspect of HR’s function needs to be more than getting new employees through a new hire orientation and providing them a parking card.  HR needs to be involved in the hiring process to develop a process to ensure the best employees are hired, as opposed to simply filling empty seats.  I strongly believe that having A employees will lead to brining in other A employees.  Permitting B employees to pervade a company will result in only being able to hire C employees.  Hiring is hard, but the selection of employees determines the success of the company.

4. Managing people is hard

The issues facing HR are different than those facing other departments in a company, such as finance or marketing.  HR must manage morale, a HR manager’s decision are based in conflict, and each interaction with employees varies based on personalities.  On top of this, there is also  the ever changing legal landscape and legal obligations the employer faces, which often times the employees do not want to follow (for example getting tipped employees to clock out for an unpaid 30-mintue meal break when they are waiting to collect tips from a large party).   HR managers that can navigate these issues, and do it while maintaining a positive employee morale are a very rare breed, but necessary to a successful company.

5. There is a natural gravity towards alienation

Skinner points out that there are many forces that if left unchecked, are driving employees to become alienated from the company.  Therefore, HR must ensure that managers in the company are trained well on how to communicate with employees, able to listen to employee complaints, and when it is appropriate to involve HR in critical issues.  Managers within the company are the tool to stop alienation, but they must have the tools and know-how to accomplish this.  The process of having employees committed to the company, and trust the company, is a long-term process that can easily be destroyed by a single lawsuit or complaint.  I also view employee alienation with a direct correlation with increase in employment lawsuits.  Employees who are treated with respect, even when are confronted with their inadequacies for what the company needs, may not be happy with the decision, but they will be more likely to respect the decision.

The hiring process cannot be underestimate, both from a managerial and legal perspective.  This Friday’s Five focuses on critical management and legal considerations for employers during the hiring process:

1. Ignore the applicant’s resume during the interview.

Nolan Bushnell, the inventor of Atari and Chuck E. Cheese, and the first person to hire Steve Jobs, provides some great examples of how to conduct an interview to determine if the applicant is a good fit for the company in his book, Finding the Next Steve Jobs.  He recommends asking applicants about their top ten favorite books, listening to how they describe their life (“the passionless tend to be blamers”), and asking questions that have no right answers. This allows the interviewer to understand how the applicant analyzes a problem.  The book is a must read for leaders in companies that require creative thought leaders working in their establishment.

2. Leaders need to be involved in the hiring process.

This is simply something too important for a company to leave to other people.  Sam Altman, of Y Combinator, wrote:

The vast majority of founders don’t spend nearly enough time hiring. After you figure out your vision and get product-market fit, you should probably be spending between a third and a half of your time hiring. It sounds crazy, and there will always be a ton of other work, but it’s the highest-leverage thing you can do, and great companies always, always have great people. You can’t outsource this—you need to be spending time identifying people, getting potential candidates to want to work at your company, and meeting every person that comes to interview. Keith Rabois believes the CEO/founders should interview every candidate until the company is at least 500 employees.

Founders interviewing employee number 1 to 500 sets to tone for the company in many ways in addition to the value mentioned by Sam. First, meeting all new hires illustrates that the employees are valued. Second, it shows that the founders are approachable and should the employee have any complaints they could discuss the issues with the founders. Granted once the company passes the 50 employee mark, it becomes more difficult to have a personal relationship with everyone in the company, but at least the founders are meeting everyone working at the company. This proves to the employees that they are valued. Usually the company’s open door policy states that if the employee has any complaints, they are free to discuss it with their supervisor, and if appropriate their concerns can be escalated to the founders/CEO. Meeting with employee during the hiring process can give teeth to the open door policy, and promote the practice of speaking with the founders if any employees have concerns about work.

3. Try working with the applicant first.

I don’t care how many interviews someone has conducted, no one can determine if an applicant will be a good fit in a company over an interview at lunch. No matter how good you believe your interview questions are at finding out the applicant’s true values, work ethic, and knowledge base, anyone with an internet can study-up on how to handle almost any type of interview scenario and look amazing during the interview. How does a company get past this problem? Sam Altman again has some great advice and recommends hiring the applicant as an independent contractor and giving her a day or two of work on a noncritical project. I recommend that companies may take it one step further, and depending on the circumstances, it may even be appropriate to hire the applicant as an employee with the idea that they are to only work on one short project during the nights or weekends. There is nothing in the law that prevents a company from hiring employees for a day or two to see how they would work, that is the idea behind at-will employment.

4. Find the applicant’s true ambition.

 Gary Vaynerchuk has a great take on what interviewers should be striving to determine during the interview:

 When I interview you, the main thing I want to know is where you want your career to go. “What do you want to be when you grow up?” I want to get into the psychology of what their ambition is. And I spend most of the interview trying to get that person comfortable enough to tell me the truth to that question. Because I don’t care if you want to be the CEO of VaynerMedia, or if you just want to move a couple levels up and have great work life balance. I don’t even care if you want to come work for me for two years, suck up all my IP, and then go somewhere to start your own agency. I really don’t care. Truly. Whatever your agenda is, I’m fine with it. I just want to know what it is, so I can help us get there. You and me.

5. Make a checklist of legal hiring compliance issues.

As always, it is good to periodically review hiring materials, questions and processes to insure compliance with local, city, and state laws, such as:

  • Are applications seeking appropriate information?
  • Are new hires provided with required policies and notices?
  • Are new hires provided and acknowledge recommended policies?
    • For example: meal period waivers for shifts less than six hours
  • Are hiring managers trained about the correct questions to ask during the interview?
  • Does the company provide new hires (and existing employees) with arbitration agreements?

Effective January 1, 2018 California employers can no longer ask an applicant for employment to disclose information about criminal convictions.  The new law (added as Section 12952 to the Government Code) applies to employers with 5 or more employees.  Once an offer of employment has been made, employers can conduct criminal history background checks, but only when the conviction history has a “direct and adverse relationship with the specific duties of the job,” and requires certain disclosures to the applicant if employment is denied based on the background check.  This Friday’s Five covers five areas of the new law that California employers should be aware of when hiring employees:

1. Employers may not include on any application for employment “any questions that seeks the disclosure of an applicant’s conviction history.”

2. Employers may not inquire into or consider this conviction history of the applicant, including any inquiry about conviction history on any employment application, until after the employer has made a conditional offer of employment to the applicant.

3. Employers can only research certain areas of an applicant’s background after a conditional offer has been made.

Employers may not “consider, distribute, or disseminate information” relating to any of the following areas when conducting a conviction history background check:

(A) Arrest not followed by conviction, except in some limited circumstances set forth in Labor Code section 432.7.

(B) Referral to or participation in a pretrial or posttrial diversion program.

(C) Convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.

4. If an employer intends to deny employment based on the applicant’s conviction history, it must make an “individualized assessment” if the conviction history “has a direct and adverse relationship with the specific duties of the job.

In making his determination, the employer shall consider all of the following:

(i) The nature and gravity of the offense or conduct.

(ii) The time that has passed since the offense or conduct and completion of the sentence.

(iii) The nature of the job held or sought.

The employer is not required to record these results of this individualized assessment in writing. However, employers that are governed by local city and county background checks must be careful to follow those requirements as well.  For example, Los Angeles’ ordinance requires that employers provide this assessment in writing to applicants. 

5. If the employer preliminary disqualifies the applicant based on a conviction history, the employer is required to provide written notice to the applicant.

The notice must contain all of the following items:

(A) Notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer.

(B) A copy of the conviction history report, if any.

(C) An explanation of the applicant’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final and the deadline by which to respond. The explanation shall inform the applicant that the response may include submission of evidence challenging the accuracy of the conviction history report that is the basis for rescinding the offer, evidence of rehabilitation or mitigating circumstances, or both.

The applicant then has five business days to respond to the notice before the employer makes a final decision.  If the employee responds within this time limit, and states that they dispute the accuracy of the conviction history report and is in the process of obtaining evidence to support their position, the applicant will have an extra five business days to respond.  The employer must consider the information provided by the applicant before making a final decision.

If the employer makes a final decision denying the applicant employment solely or in part because of the applicant’s conviction history, the employer is required to provide a second written notice to the applicant containing the following:

(A) The final denial or disqualification. The employer may, but is not required to, justify or explain the employer’s reasoning for making the final denial or disqualification.

(B) Any existing procedure the employer has for the applicant to challenge the decision or request reconsideration.

(C) The right to file a complaint with the Department of Fair Employment and Housing.

In addition to this new law, California employers need to be sure they are in compliance with the Federal Fair Credit Reporting Act (FCRA) and the California Investigative Consumer Reporting Agencies Act (ICRAA) when conducting any background checks.

Happy New Year.  I started the Friday’s Five articles in the summer of 2014, and the interest in the articles has been more than I expected.  I appreciate everyone who has read them and provided comments and feedback. If you have any topics you would like me to address, please let me know. With that said, here is a list of five resolutions for California employers in 2018:

1. Relax – Still need to make sure your employees are taking their meal and rest breaks.

2. Train – All supervisors must be trained to comply with California’s required sexual harassment prevention training for employers with 50 or more employees.

Since 2015 the training must discuss bullying in the workplace to be legally compliant, and as of January 1, 2018, the training also needs to cover harassment based on gender identity, gender expression, and sexual orientation.

3. Read – Update employment handbook policies on a yearly basis.

2018 has a few new laws that should be addressed the employee handbook and new hire packets.

4. Run – Sorry, no play on words with this one, you just need to get outside and run a bit.

5. Organize – and keep employment files, time records and wage information for at least the length of any applicable statute of limitations.

Employers should review their systems to ensure there is a process in place on how to organize and maintain employment information for the required time periods, it is required under the law and can help defend the company should litigation ensue.

A final more bonus resolution:
Learn – more by attending my webinars on California employment laws to stay up to date.

In the next month, I will be hosting a seminar on the new laws facing employers in 2018 and what steps should be taken to comply. The date is still to be determined, but drop me an email if you are interested and I make sure you are notified once we set the date and location.

Wishing you the best in 2018!

AB 168 was approved by Governor Brown on October 12, 2017 which prohibits employers from seeking or taking into consideration an applicant’s prior compensation and benefits when determining whether to hire the applicant, and in setting the applicant’s compensation and benefits.  The new law creates Labor Code section 432.3.  This Friday’s Five covers five issues of the new law that employers must understand:

1. The law applies to all employers, regardless of size, effective January 1, 2018.

2. Employers may not rely on salary history information of an applicant in determining whether to offer employment and in determining the about of compensation to offer.

3. Employers may not seek salary history information, which includes compensation and benefits, about the applicant.

4. Upon a reasonable request, an employer must provide the “pay scale” for the position to an applicant.

5. Nothing in the law prohibits employees from voluntarily disclosing salary history to a prospective employer.