Archives for February 27, 2018

2018 Employment Law Update

As we reach the end of February, it is safe to say that we are warming up to 2018. Rather than dwell on the fact that time has flown by remarkably fast, it is worth noting that the new year has ushered in favorable new legislation and court decisions for employees (and prospective employees)!

It’s Not Polite to Talk Finances at Dinner … Or During a Job Interview

Under the newly added section 432.3 to the California Labor Code, California employers are now prohibited from seeking an applicant’s salary history. In practice, this means you cannot be asked about your prior salary on a job application or during an interview. While you are free to voluntarily disclose this information during the hiring process, an employer may not use this information as a factor in determining whether to offer employment or what salary to offer you. Additionally, an employer must provide a pay scale for a position when an applicant reasonably requests one.

Ban the Box

California now prohibits employers with five or more employees from asking about or even considering, an applicant’s criminal conviction history during the application process, unless the employer has made a conditional offer of employment. Even if your employer factors your criminal history into denying employment, your conviction history must have a “direct and adverse relationship with the specific duties of the job that justify denying [you] the position.” Additionally, your potential employer is prohibited from considering information regarding a non-conviction arrest (with some exceptions), referral to a diversion program, or convictions that have been sealed, dismissed, expunged, or statutorily eradicated. In other words, the mistakes you made in the past will not come back to haunt you when you are working hard to get back on your feet!

Breaking Through Gender Norms

California amended the Fair Employment and Housing Act (FEHA) to now require employers with 50 or more employees to provide training once every two years to supervisory employees on harassment based on gender identity, gender expression, and sexual orientation. These employers are also required to prominently display a new DFEH poster regarding FEHC regulations on gender identity and expression.[1] Additionally, FEHA removed gendered terms from FEHA and added gender-neutral terms to ensure that FEHA applied to all California employees, including transgender, non-binary, and gender non-conforming employees.

Baby Bonding Expansion

California added Section 12945.6 to the Government Code to extend parental bonding rights to employees of smaller employers, by reducing the 50 or more-employee threshold to 20 or more employees. Furthermore, employers must provide qualified employees with a guarantee of reinstatement to the same or comparable position following their leave. This is great news for new parents!

Salespeople Need a Break Too!

In addition to the legislation that has come out of Sacramento, California Courts also worked hard last year to expand employee’s rights. In Vaquero v. Stoneledge Furniture LLC, the California Court of Appeals held that employers must separately compensate employees for rest periods if an employee’s plan does not already include a minimum hourly wage for such time.[2] In Vaquero, the defendant furniture company argued that its commission plan still guaranteed sales associates would be paid more than $12 an hour; thus, effectively capturing rest period time. The Court of Appeal did not buy this argument and stated that an employer needed to separately compensate its employees for rest periods. Simply put, this decision effects commissioned employees where the employee’s commission plan does not provide separate compensation for non-selling time, such as time spent in meetings or rest periods.

Third-Party Problems

Your employer may be liable for failing to protect you from abuse/harassment from a third party. In M.F. v. Pac. Pearl Hotel Mgmt. LLC, a housekeeper sued her employer (a hotel) after a man who was not a guest of the hotel sexually assaulted her.[3] The California Court of Appeal held that the plaintiff stated a claim under FEHA as to whether the employer had taken reasonable steps to prevent harassment.

Hugs Are Not Always Harmless in the Workplace

The Ninth Circuit held in Zetwik v. County of Yolo that hostile conduct over a twelve-year period, including unwelcomed hugs, and at least one unwelcomed kiss, was sufficiently severe or pervasive to constitute harassment in the workplace.[4]

“We Swipe Left, And Reverse”

Last month, the California Court of Appeal held that Tinder (a popular online dating app) engaged in age discrimination in pricing, because Tinder charged its consumers over 30 years old $19.99/month, but only charged $9.99 or $14.99/month for consumers under 30.[5] The Court of Appeal reversed the lower court’s ruling and held that the Unruh Act provides broad protection against age-based price discrimination. Notably, the Court stated, “[a]ccordingly, we swipe left, and reverse.”

If your employer is still living in the past and violated any of the above, you may have a case against your employer. For more information about your rights, and a free case evaluation, please contact us online or call us at (619) 342-8000.

[1][2] Vaquero v. Stoneledge Furniture LLC, 9 Cal. App. 5th 98 (2017).[3] M.F. v. Pac. Pearl Hotel Mgmt. LLC, 16 Cal. App. 5th 693 (2017).[4] Zetwik v. County of Yolo, 850 F. 3d 436 (9th Cir. 2017).[5]

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