Top 5 California Employer Compliance Pitfalls
The state of California and some cities within it are notorious for creating compliance requirements that are not always present in other jurisdictions. However, given the lack of movement at the federal level, other cities and states are beginning to show distinctly California-leaning policy positions and accompanying legal requirements. Making policy toward protecting civil rights for employees, promoting pay equity, helping those who have had prior criminal histories recover their careers and supporting a living wage are all underlying reasons (among others) offered for the legal provisions below. Being aware of, and proactively planning for, California-specific needs is the only way to ensure they don’t disrupt the normal flow of business and cause unanticipated legal and business costs.
While there are many California-specific items, these are the ones I’ve been discussing and planning for with my clients:
· Ban the box-restrictions on criminal history inquiries in the application process: effective January 1, 2018, employers may not request criminal history information on the application, and although they may perform criminal background checks after a conditional offer of employment has been extended, but subject to certain restrictions.
· A salary history inquiry statewide ban, which prohibits requesting salary history information from applicants, and also including the requirement to provide salary information on open jobs to prospective hires upon request.
· Newly implemented marijuana legalization for recreational use, which creates challenges and questions around drug testing protocols and processes, including whether employers can enforce drug free workplace policies including marijuana.
· Ensuring legal obligations and employee notifications for immigration related requests, such as external I-9 audits: beginning January 1, 2018, employers must ensure that a judicial warrant or subpoena for immigration-related records, and must also provide notice to affected California employees.
· Disability, absence and paid leave provisions: just one recent ruling held that obesity can be considered a disability under the FEHA in California. The wage replacement rates have been increased and the 7-day waiting period removed for California paid family leave claims filed after January 1, 2018, which can influence how this program interacts with employers’ internal programs.
· BONUS: When do California labor laws apply to employees who travel into the state to perform work? In 2012, the California Supreme Court held that employers must apply its state overtime provisions to non-exempt employees traveling into the state to perform work. How much contact is required before other provisions are applicable? That’s a question worth exploring based on the specifics of your business.
California compliance can be challenging. Those small employers who have employees working in California, often lack the knowledge and resources to stay on top of these requirements. Indeed, they may not even be aware of a legal issue until after they have taken action. Ignorance of a requirement isn’t an excuse, so if this is your situation, consider staying on top of California employment compliance by joining the Solve HR mailing list here.
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