Here are five considerations that should be on the top of every employer’s mind in California when interviewing applicants for an open position.

1. Does the applicant’s actions back-up their interview?

Don’t come to an interview saying that you have a passion for business development and marketing, but when I review your LinkedIn page you have five connections and have never written any articles on your subject matter.  You don’t have to have 1,000 connections either, but employees saying they are interested in marketing need to back this up with some actions.  And no, your 1,000 followers on your Instagram account that only has pictures of where you eat and vacation does not count either.

2. Will the applicant commit the “unforgivable sin”?

Gary Vaynerchuk explains that being able to put in long hours is not a skill that he looks for in every employee.  The “unforgivable sin” for Vaynerchuk is if employees cannot get along with co-workers, are disrespectful, selfish, or create conflict.  How can an employer find out if an applicant is not a team player?  Seeing how the applicant treats the receptionist upon arriving for the interview and how they treat the waiter at the lunch meeting can be key indicators.  Calling references provided by the applicant can lead to good information.  Also, asking around with colleagues and your network about people can surprisingly lead to great information about applicants.  For example, it amazes me how many attorneys know of other attorneys in Los Angeles and how important one’s reputation is even in a large legal community like Los Angeles.

3. Does the employer follow-up with references provided by applicant?

It is a good practice to follow-up with the applicant’s references provided.  I’m also a big proponent of conducting a search of the applicant’s background on the Internet.  For some issues that may arise when an employer uses the Internet to do a search on an applicant, my previous article on the topic can be read here.

4. Does the employer understand obligations when conducting non-criminal background checks?

When conducting background checks on applicants and employees, employers need to take time to review the applicable state and federal laws that apply to background checks.  LinkedIn was sued previously for violation of the federal Fair Credit Reporting Act (FCRA) for certain background reports it generated for users of the site.  In addition, under California law, the Investigative Consumer Reporting Agencies Act and the Consumer Credit Reporting Agencies Act could apply to background checks in the employment context.  These laws are very complex, and employers should enter this area with the knowledge of their obligations before conducting background checks.  For more information about background checks, please see my previous article here.

5. Does the employer understand state and local criminal history background check prohibitions?

Effective January 1, 2018 California employers cannot 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.  In addition, local governments, such as Los Angeles and San Francisco have implemented their own prohibitions on criminal history checks, and employers must also comply with these local requirements.  Don’t forget about California’s prohibition on inquiring about applicant’s prior salary history as well.

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.

IMG_4751 (1)Mid-way through 2017 and the California legislature is busy and, as expected, there are a number of employment law bills making their way through the legislature.  This Friday’s Five reviews five bills that could have a major impact upon California employers if passed:

1. AB 168 – Prohibition of asking salary history when hiring employees.

This bill prohibits employers from seeking salary history information from applicants and requires employers to set pay scale for positions and to provide this information to applicants.

2. AB 1008 – Statewide “Ban the Box” (limiting any questions by employers about criminal histories on applications).

Los Angeles and San Francisco have already passed regulations prohibiting employers for asking about criminal histories before a job is offered to employee.  This bill would apply similar requirements on employers state-wide.

3. AB 1565 – Increasing the required salary threshold to $47,472 annually ($3,965/month) for white collar exempt employees.

To qualify as an executive, administrative, or professional employee exemption, employers bear the burden of establishing that the employee is paid a salary the equivalent of two times the state minimum wage and that the employee spends more than 50% of their time on exempt duties.  With the state minimum wage at $10.50 per hour for large employers as of January 1, 2017 the currant salary level that must be paid in order to qualify for the white collar exemptions is $43,680/year.  On January 1, 2018, the state minimum wage increases to $11 per hour for large employers, raising the salary required for exempt employees to $45,760/year.  This bill proposes to increase the salary required to be paid to employees to meet the white collar exemptions since the Department of Labor’s attempt to do this on a federal level stalled at the end of last year.

4. AB 1209 – Internet publication of wages based on gender. This bill would require employers to publish information about “pay gender differentials” on a website open to the public. 

The bill would apply to employers who are required to file a statement of information with the Secretary of State and who have 250 or more employees to collect specified information on gender pay differentials. The bill would require an employer to annually update, publish, and submit the information.

5. SB 63 – Require small businesses to provide parental leave.

Currently, employers with 50 or more employees are required to comply with the California Family Rights Act and provide parental leave of up to 12 weeks to bond with a new child within one year of the birth.  This bill would lower the number of employees for covered businesses to 20 employees in a 75-mile radius.  The bill would also prohibit an employer from refusing to maintain and pay for coverage under a group health plan for an employee who takes this leave.