McLeod Witham


That’s California

Employment Law Blog

Jennifer Grock on January 24, 2017

The City of Los Angeles has imposed new limitations on employers’ consideration of applicants’ criminal history.

Though it has become commonplace for employers to include a box for applicants to check on an employment application to indicate prior criminal convictions, employers who do business within the City must now revise their applications to eliminate such inquiries.  The City of Los Angeles is following the lead set by San Francisco to restrict employers’ consideration of an employment candidate’s criminal history.

The City of Los Angeles passed its Fair Chance Initiative for Hiring (Ban the Box) effective January 22, 2017, which limits private employers within the City who employ ten or more employees from inquiring into or seeking a job applicant’s criminal history unless and until a conditional offer of employment has been made to that individual.  Once a conditional offer has been extended, the employer is permitted to inquire into the candidate’s criminal history.  If the candidate does have a criminal conviction in his or her background that displeases the employer, the company is nevertheless not allowed to simply retract the offer of employment.  Rather, the employer is required by the new ordinance to take the extraordinary step of producing a written assessment that links the specifics of the candidate’s criminal history with risk inherent in the position sought by the candidate.

But the “fair chance” doesn’t end there.  The employer is required to provide a copy of the written assessment to the candidate with any supporting documentation and then wait up to five days before withdrawing the offer of employment.  During that five-day timeframe, the candidate is allowed to complete the “Fair Chances Process” by providing the employer with additional information or documentation, presumably regarding his or her rehabilitation or the accuracy of his or her criminal background, though the law is not completely clear.  If the candidate presents any such information, the employer is then obligated to do a written re-assessment of the candidate’s criminal history and the sought-after job position, and to provide a copy of it to the candidate if the job offer is ultimately retracted.

While the City has placed a burden – and frankly a litigation risk – on employers in requiring them to produce the written assessments and re-assessments, it has also failed to provide clear guidance on exactly what employers need to include in such a write-up in order to fully comply with this new ordinance.  The ordinance vaguely states that any written assessment should “at a minimum” consider the EEOC’s factors on this issue as well as any factors to be announced by the City’s “Designated Administrative Agency,” but does not provide much in the way of specifics.  Employers will therefore have to try to comply with the new ordinance without the benefit of knowing exactly what will ultimately be deemed acceptable by the City.

Of course, wasting no time, the new law provides employees with the right to bring a civil action to collect penalties for violations of these as-yet undefined requirements.  Stay tuned for further developments on this topic.

The ordinance can be viewed here.

Daniel J. Turner on January 24, 2017

Recent news reports claim that President Trump will announce his Supreme Court nominee next week.  Although candidate Trump previously released a list of potential Supreme Court nominees, recent news reports claim that Justice Neil Gorsuch of the 10th Circuit Court of Appeals is under strong consideration and may end up being selected.

Justice Gorsuch is a former clerk for Justice Anthony M. Kennedy and served in President George W. Bush’s Justice Department before he was confirmed to the 10th Circuit in 2006.  Interestingly, unlike several of President Bush’s other judicial nominees, he was easily confirmed by the Senate.  In any event, click here for a brief summary of Justice Gorsuch’s background and experience.

Daniel J. Turner on January 20, 2017

New California Employment-Related Laws in 2017

Control of the Presidency may have changed, however, nothing that happened in Washington D.C. this weekend changes the fact that a variety of new employment-related laws have recently gone into effect in California.  Accordingly, here is a brief summary of the new laws that will impact California employers:

Minimum Wage Increase– As of January 1, 2017, the minimum wage for employers with 26 or more employees increased to $10.50 an hour.  The minimum wage for employers with 25 or fewer employees is $10.00 an hour.

Ban on Mandatory Arbitration of Labor Claims (Labor Code Section 925) – Employers “shall not require an employee who primarily resides and works in California, as a condition of employment, to agree to a provision” that:  (i) requires the employee to adjudicate outside California a claim arising in California; or (ii) deprives the employee of the substantive protection of California law with respect to a controversy arising in California. 

 As of January 1, 2017, contracts containing these provisions will be voidable at the employee’s election subject to certain exceptions contained within Section 925.  Most importantly, the new law excludes contracts where the employee is “individually represented by legal counsel in negotiating the terms [of the] agreement.”  In addition, Section 925 is not retroactive and only applies to agreements that are entered into “as a condition of employment.” 

All Gender Bathrooms – Starting March 1, 2017, businesses are prohibited from labeling any “single-user toilet facility” as either “male” or “female.”  An “inspector, building official, or other local official responsible for code enforcement” may inspect for compliance during “any inspection of a business or a place of public accommodation,” so you have a few more weeks to order new signs

Employers Required to Notify Employees Regarding Rights to Domestic Violence Leave – Employers with 25 or more employees must provide notice to employees of their rights to take protected time off for domestic violence, sexual assault or stalking.  (Labor Code Section 230(c) already provides that employers “shall not discharge or in any manner discriminate against or retaliate against an employee who is a victim of domestic violence, sexual assault, or stalking for taking time off from work to obtain or attempt to obtain any relief, including, but not limited to, a temporary restraining order, restraining order, or other injunctive relief, to help ensure the health, safety, or welfare of the victim or his or her child.”).  In any event, Labor Code Section 925 requires employers to “inform each employee of his or her rights” upon hire and at any time thereafter upon request.  The Labor Commissioner is developing a notification form and intends to publish it by July 1, 2017. 

No wonder the Labor Commissioner’s Office is hiring.

Jennifer Grock on January 20, 2017

Follow us to receive guidance on navigating California's complex employment laws.

In our combined 22 years of practicing employment law in California, we have never ceased to be surprised by the ever-changing, ever more complex array of laws and regulations that impact the employment relationship in our State.

This blog will provide legal updates, analysis, and advice for business owners, human resources professionals, and fellow attorneys who must navigate these issues in their day-to-day work with employees and clients.  We aim to provide you with useful guidance on subjects such as compliance with wage and hour, discrimination, accommodation, harassment, privacy, disability, pregnancy, and leave laws, as well as timely and effective solutions to minimize your risk of costly employment disputes.  We will also address new developments in the law, with practical advice on how to implement the new requirements.

We want this blog to be a valuable resource for you.  So, please feel free to contact us if you have any questions about our posts or employment law generally, or if there are any topics you would like us to cover.


Links & Resources