The theme of Poole & Shaffery’s annual Employment Law Update had an ominous sound to it: “Be Afraid. Be VERY Afraid!”
For good reason.
“There is a lot to be afraid of in this state,” Attorney David Poole told the hundreds of business leaders who descended on the Hyatt Regency Valencia on Tuesday afternoon.
And, he cautioned, “Ignorance is not bliss.”
From 2018 legislative changes that prohibit employers from asking prospective employees about their salary background and restrict questions about criminal history to complexities surrounding cannabis policies, rest periods and social media, Poole and one of his colleagues, Brian Koegle, spent more than an hour outlining potential hurdles in an ever-changing landscape for business professionals across California.
“If you’re not updating your employee handbook every year … it’s probably not worth the paper it’s written on anymore,” Koegle stressed
A few of the newest pieces of statewide legislation consumed much of the conversation:
The days of employers being allowed to ask about an applicant’s salary history are history.
This law, which took effect Jan. 1, bans employers from relying on salary history during the recruiting process, both on application forms and during interviews.
“If you ask that question, you are now in violation of California state law,” Koegle emphasized.
He added, “The only way we can see around it is to say, “Well, what is it that you would like to make?” though he added that such a question might not always elicit a useful response.
As for reasoning behind the law, Koegle said California lawmakers believed that some employers had been using salary history to “artificially depress females’ wages for years” and wanted to “force employers to make a qualitative decision” in deciding between equally qualified candidates.
In addition, AB 168 requires employers to provide a pay scale for all positions, upon request.
A job applicant’s criminal past if off the table, too – with few exceptions.
This law, also effective Jan. 1, deprives employers with five or more employees from requesting conviction history on an application, inquiring or considering an application’s conviction history prior to a conditional offer of employment, or “consider, distribute, or disseminate information” related to arrests or conviction when conducting a background check.
Also, AB 1008 outlines employers’ steps if denying employment following a concerning background check, a process that includes multiple written notices.
“If you don’t think that’s a set-up for a lawsuit,” Koegle warned.
While recreational use of cannabis products is now legal in the Golden State, Health and Safety Code §11362.54 was instituted to allow employers to maintain a drug- and alcohol-free workplace.
If an employer suspects that an employee is high in the workplace, Koegle said, “You absolutely have the right to send them for testing,” adding that the employer should provide transportation to and from the testing facility.
Also, Koegle encouraged employers to specifically call out cannabis or marijuana products in their employee handbooks.
Required rest periods and the ongoing rise of social media use in the workplace also captured attention during the law firm’s annual update, hosted by the Valley Industry Association.
It is the employers’ “burden” – not the employees’ responsibility – to mandate duty-free rest periods, including allowing employees to leave premises for a break, Koegle said.
“What about the dedicated employee that wants to stay at his or her desk (and not take a rest break)?” Poole asked.
“You actually have to walk up and tell him or her, ‘You have to leave your desk,” Koegle responded.
After calling Facebook “the worst invention in the history of mankind,” Koegle encouraged employers to develop a specific policy to ensure that “billions” of hours of possible production are not lost to social media chatter.
“Do you have a written social media policy in your employee handbook? You better,” he said.
At a glance
Poole & Shaffery’s “Best Practices” for California employers in 2018:
– Perform an annual audit of employment practices, policies and procedures.
– Update employee handbook to reflect changes in law.
– Maintain written job descriptions for every category of employment.
– Conduct an annual written audit of every exempt employee’s classification.
– Update wage claim release language.
– Provide new employees LC 2810.5 notice.
– Obtain Employment Practices Liability Insurance (EPLI) coverage.