The nationwide “ban-the-box” movement is part of government’s effort to remedy blanket disqualification of job applicants with criminal records. Ban-the-box laws typically require employers to eliminate the criminal history question on a job application, reduce an employer’s accessibility to criminal records until after extending a conditional job offer, and require the criminal offense to be relevant for that job position to use it as a disqualifying factor.

Following San Francisco, Los Angeles City, Los Angeles County, and California’s statewide Fair Chance Act, San Diego County (the County) has adopted the San Diego County Fair Chance Ordinance (FCO). See also, San Diego County Fair Chance Ordinance hiring toolkit.

Effective October 10, 2024, the FCO applies to any employer -- including job placement agencies -- located or doing business in the unincorporated areas of the County that employs five or more employees.

The FCO also covers individuals whose employment involves, or will involve, performing at least two hours of work on average each week within the unincorporated County.

Covered employers should pay particular attention to these unique points:

Rescinding the Conditional Job Offer:

An employer subject to the FCO must make a written individualized assessment of whether the applicant’s criminal history has a direct and adverse relationship with the specific duties of the job that justify withdrawing the conditional job offer, along with written notice of the person’s right to file a complaint with the County.

Holding the Position:

Barring exigent circumstances requiring the position to be filled immediately, the employer must keep the position open for up to 10 business days to permit the applicant to respond to the employer’s preliminary decision to withdraw the conditional job offer.

Recordkeeping Obligations:

Employers must retain all documents related to the written assessment for one year following the receipt of the employment application.

Penalties:

Violators can incur penalties of up to $20,000 for each aggrieved applicant or employee.

Take-Aways:

Covered employers should carefully review their job postings, webpages, and conditional job offer letters to ensure proper compliance with statewide and local fair chance legislation.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

• What’s New in 2024- Los Angeles County Fair Chance Ordinance Effective September 3, 2024 (August 15, 2024)
• Give Peeps a Chance – Civil Rights Department Sues Ralphs for Violating Fair Chance Act (January 26, 2024)

Cindy Bamforth
November 27, 2024

Effective January 1, 2025, SB 988 provides new protections for freelance workers.

“Freelance worker” is defined as an individual or single-person organization, incorporated or not, which a hiring entity engages “as a bona fide independent contractor to provide professional services” of $250 or more, either singly or combined with services in last 120 days.

SB 988 adopts Labor Code 2788’s 15-part definition of professional services, covered in What’s New In 2021: California’s Newest Independent Contractor Law Part 3 (October 10, 2020). For a freelancer providing any such services, valid independent contractor status requires:

• A written contract identifying: the parties’ names and mailing addresses and all services the freelancer will provide, including value and rate/method of compensation; date of payment or how date will be determined; and date freelancer must submit list of services in order to be paid on time;
• A freelancer can also establish a valid contract by terms stated in texts and emails between the parties and the hiring party’s oral representations;
• The hiring party must pay by the date in the contract or, if none, within 30 days after the work is completed. The hirer may not pay less than agreed or require the freelancer provide additional goods or services beyond those contracted; and
• The hiring party may not retaliate.

SB 988 does not apply to state and federal governments or foreign entities or individuals engaging services for themselves, their families, or their homestead.

Take-Aways:

A company that wishes to hire an individual or single-person company as an independent contractor must determine if the prospect falls under Labor Code 2788’s 15 professional services categories and, if so, document the relationship in a written contract fulfilling all SB 988 requirements.

For further assistance, please contact one of our attorneys, Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

• What’s New In 2025: Unsplitting Hairs: Race Discrimination Clarified (November 8, 2024)

Helena Kobrin
November 20, 2024

Since the 1959 enactment of California’s Fair Employment and Housing Act (FEHA), the statewide Civil Rights Department (CRD) (formerly the Department of Fair Employment and Housing or DFEH) has been the sole authority to enforce workplace discrimination laws. SB 1340 now permits cities and counties to enact and enforce local ordinances prohibiting discrimination so long as:

1. The local enforcement concerns an employment complaint filed with the CRD;
2. The CRD has issued a “right-to-sue notice” to the complaining party;
3. The deadline specified in that notice has not expired; and
4. The local ordinance is at least as protective as state anti-discrimination law.

The law allows a complaining party two possible bites at the apple. If that person chooses not to combine FEHA and other state claims with the local ordinance claim, his/her right to file a state law claim is on hold (tolled). That individual then has the option of later going to court on FEHA or other statewide grounds.

For further assistance, please contact one of our attorneys, Tim Bowles, Cindy Bamforth or Helena Kobrin.

Take-Aways:

SB 1340 is yet another reason employers must carry clear prevention and resolution policies and regularly train all management and staff in their enforcement.

See Also:

• Unsplitting Hairs: Race Discrimination Clarified (Nov. 8, 2024)
• 72 Million Reasons Not to Mess with Women: Employer Agrees to End Widespread Sex Discrimination (February 16, 2024)

Helena Kobrin
November 15, 2024

Recently enacted Senate Bill 1137 clarifies that California’s anti-discrimination and anti-harassment laws based on protected classifications – such as race, gender, age, disability and sexual orientation – also apply to “intersectional identities” in which two or more of these classifications can result in a unique form of discrimination.

Intersectionality refers to how combined forms of discrimination can exacerbate each other and result in amplified prejudice and harm. For example, a Black woman could face workplace discrimination based on a combination of race and gender that subjects her to stereotypes not shared by Black men or white women.

The bill’s author, Senator Smallwood-Cuevas stated: “Discrimination transcends singular dimensions…and not only happens based on one protected class, such as race, gender or age, but any combination thereof. This bill is common-sense reform that addresses the intersectionality of discrimination cases, providing greater protections for Californians, especially those from our most marginalized communities of color.”

Take-Aways:

Effective January 1, 2025, California employers should update their equal employment opportunity statements and anti-harassment policies with the assistance of competent legal counsel and train managers on recognizing and preventing intersectional biases.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

• What’s New in 2025 - Unsplitting Hairs, Race Discrimination Clarified – November 8, 2024

Cindy Bamforth
November 15, 2024

As previously reported, California’s Fair Employment and Housing Act (FEHA) prohibits racial discrimination for an employee’s and applicant’s “historically” race-related hairstyles under the 2019 Creating a Respectful and Open Workplace for Natural Hair (CROWN) Act.

Recently-enacted AB 1815 removes that vague and undefined “historically.” Thus, simply:

• “‘Race’ is inclusive of traits associated with race, including, but not limited to, hair texture and protective hairstyles.”
• “‘Protective hairstyles’ includes, but is not limited to, such hairstyles as braids, locs, and twists.”

Employers of course may require all employees to maintain a clean and neat appearance. However, dress and grooming policies must not prohibit protective hairstyles.

Take-Aways:

AB 1815 applies retroactively as a declaration of existing law. California employers should promptly update their dress code policies and equal employment opportunity statements with the assistance of competent legal counsel.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

• Hairstyle Discrimination (March 29, 2019)

Cindy Bamforth
November 8, 2024

Unemployment Insurance Code 3303.1 has permitted California employers to require an employee to take up to two weeks of earned, unused vacation prior to commencing Paid Family Leave (PFL).

No longer. Under AB 2123, effective January 1, 2025, employers may not compel workers to take pre-PFL paid vacation.

For further assistance, please contact one of our attorneys, Tim Bowles, Cindy Bamforth or Helena Kobrin.

Take-Aways:

The change underscores the need for at least annual workplace policy review and revision to stay current with changing state and federal laws. Coming soon: our 2025 model handbook and forms amendments.

See also:

• Modifications to California’s Paid Family Leave Pamphlet (August 12, 2022)
• California Paid Family Overview (August 3, 2018)

Helena Kobrin
November 1, 2024

California’s Fair Employment and Housing Act (FEHA) * forbids harassment against employees that alters the conditions of employment resulting in an abusive work environment; and * prohibits retaliation for complaining of harassment. To rise to the level of unlawful harassment, the behavior must be severe or pervasive.

The California Supreme Court recently held in Bailey v. San Francisco District Attorney’s Office that a single racial epithet can be severe enough to violate FEHA.

In Bailey, Saras Larkin, a co-worker who shared an office with Twanda Bailey, an African American employee of the San Francisco District Attorney’s Office, called Ms. Bailey the N-word, causing her great emotional distress. The two shared an office and work duties and had to cover for each other, making it impossible for Ms. Bailey to distance herself from Ms. Larkin.

The court stated that “unambiguous racial epithets,” including “the N-word in particular,” are “odious and injurious” and that an employer could be liable for such conduct by co-workers as well as supervisors. The issue addressed was whether the co-worker’s “one-time use of the N-word was, under the totality of the circumstances, sufficiently severe as to create a hostile environment.”

When senior management learned of the situation and investigated, it concluded that a single racial slur was insufficient to cause an abusive work environment. The trial and appeals courts agreed. The California Supreme Court disagreed and sent the case back for the Court of Appeal to address the issues, including whether bad behavior by the DA’s personnel director towards Ms. Bailey after this incident constituted retaliation.

Take-Aways:

Employers need to take seriously complaints of discrimination and harassment and steer clear of retaliation when employees report such issues. They must provide the required harassment training to all employees. Among other resources, the Bowles Law Firm offers online and in-person harassment training, an annual Employment Law Seminar that includes training on this subject, and a Handbook that lays out the required rules on harassment and discrimination and how to field reports that have occurred. See links below.

For further assistance, please contact one of our attorneys, Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin
October 25, 2024

As previously reported, recently enacted Labor Code sections 1182.14 and 1182.15 substantially increase minimum wage for workers in various health care facilities, eventually raising the rate to $25/hour, superseding local minimum wage laws.

Governor Newsom delayed the implementation until either:

• certain state revenues increased or
• the Department of Health Care Services (DHCS) notified the legislature of steps taken to implement increased funding of supplemental Medi-Cal program payments, in which case the minimum wage increases would occur the earlier of January 1, 2025, or 15 days after DHCS’s notification date

On October 1, 2024, the DHCS notified the legislature of the above steps, thereby causing the wage increase to take effect on October 16, 2024.

Take-Aways:

As of October 16, 2024, covered health care employers must comply with these minimum wage increases and post the official Health Care Minimum Wage Supplement notice. Employers can also refer to the Department of Industrial Relations (DIR)’s updated FAQs.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

• California Minimum Wage Mid-Year Rate Increases (June 28, 2024)

Cindy Bamforth
October 23, 2024

California Labor Code 3550 requires employers to prominently display a Notice to Employees-Injuries Caused by Work (the Notice) on:

• the employer’s insurance carrier;
• how to obtain emergency medical treatment;
• covered incidents;
• rights to receive medical care, select and change the treating physician, and obtain certain benefits;
• instructions on reporting injuries;
• time limits to notify the employer;
• protections against discrimination; and
• other information about the claims process.

On July 15, 2024, Governor Newsom signed AB 1870, which as of January 1, 2025, requires the Notice to further state:

• “The injured employee may consult a licensed attorney to advise them of their rights under workers’ compensation laws;” and
• “In most instances, attorney’s fees will be paid from an injured employee’s recovery.”

Take-Aways:

Failure to conspicuously post the Notice shall constitute a misdemeanor and evidence of noninsurance. Employers can preorder the 2025 “all-in-one” state and federal poster from the California Chamber of Commerce.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth
October 18, 2024