On January 1, 2024, California will become the fourth state in the union – after Maine, Montana and Washington (plus the District of Columbia) -- to bar workplace discrimination for off-the-job and off-workplace cannabis use. As below, the law retains employer rights and obligations to maintain an alcohol- and drug-free workplace and to conduct legally compliant drug screenings.

Amending the Fair Employment and Housing Act -- prohibiting various forms of employment discrimination – Assembly Bill 2188 and Senate Bill 700 make it unlawful for an employer with five or more persons on payroll to discriminate against a person in hiring, termination, or any term or condition of employment, or “otherwise penalize a person because of the person’s use of cannabis off the job and away from the workplace, except as specified.”

The new law thus makes it unlawful for an employer to seek job applicant information on prior use of cannabis, except as allowed on a criminal background check. See, Assessing Criminal Records in Hiring – New Regulations in Effect October 1, 2023 – Conviction Context Counts (September 29, 2023)

Apparently for safety considerations, these restrictions do not apply to the “building and construction trades,” an exception that appears arbitrary considering the many other hazardous industries.

However, the new provision does not permit an “employee to possess, to be impaired by, or to use, cannabis on the job, or affect the rights or obligations of an employer to maintain a drug- and alcohol-free workplace” as specified by law. This includes the ban on driving or operating a vehicle, boat, vessel, or aircraft, while smoking, ingesting, or impaired by cannabis or cannabis products. See, Drug And Alcohol – Free Workplace Policies – No Exception for Cannabis (September 3, 2021)

The law also draws a line on proper use of drug testing. Management may not discriminate where a legally proper applicant and employee drug screening shows non-psychoactive cannabis metabolites in … hair, blood, urine, or other bodily fluids. However, employers can still decline hiring on an otherwise proper drug screen that seeks and confirms only psychoactive cannabis metabolites. See, Drugs and Alcohol in The Workplace – Balancing Worker Privacy with and Employer’s Right to Protect Safety (March 9, 2011)

Take-Aways:

It is a sign of the times that FEHA now establishes recreational cannabis use cannot be a criterion for refusing to hire or for adversely affecting job status. However, employer prerogatives to ban on-the-job intoxications, whether drunk or stoned, remain in place.

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

See also:

• Keeping It Tight – Drug-and Alcohol-Free Workplace Policy (August 5, 2022)
• Banning Weed in The Workplace – California Employers May Maintain Drug-Free and Alcohol-Free Policies (January 19, 2018)
• California Adopts Ban the Box Law – Employers Cannot Seek Criminal Record until after Offer to Hire Applicant (October 27, 2017)

Tim Bowles
October 27, 2023

The Federal Arbitration Act (FAA) protects the rights of parties, including employers, to engage in arbitration rather than court-adjudicated lawsuits to settle disputes. In contrast, the California legislature has long attempted to nullify employers’ ability to settle disputes with employees via arbitration.

Governors have sometimes vetoed California’s anti-arbitration legislation. When governors have approved such measures, courts have ruled that they violate the FAA.

In the latest anti-arbitration measure, the Governor has approved SB 365, changing the general rule that the trial court may not address any issues that are on appeal. Instead, under the new law, appeals of a court order denying or dismissing a motion (request) to compel (require) arbitration will not automatically stop the trial court from proceeding on the issues.

Proceeding in the trial court while an issue is on appeal nullifies the purpose of an arbitration agreement – which both parties have signed – to contain costs, speed up the process, and have a more private adjudication of the issues. And if the appeal is granted, everything the trial court has done in the interim may be void if the case is sent to an arbitrator to address those same issues.

Does this latest California legislation violate the FAA? Very possibly it does. If so, when a court overturns it, the California legislature will undoubtedly pull out its cauldron and whip up a new anti-arbitration incantation.

Take-Aways:

Always consult with counsel concerning legally appropriate arbitration agreements and their enforcement. And watch this blog for ensuing developments on this new anti-arbitration measure.

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

See also:

• Federal Court Approves Mandatory Workplace Arbitration: Out-of-Court Contracts (February 24, 2023)
• Cautionary Tale Episode 53: Poetic Justice Smack Down: Reconsidering Arbitration Agreements (April 6, 2022)
• The Right To Fight: Battle Continues Over Employer-Required Arbitration Agreements (September 24, 2021)
• What’s New In 2020: California Prohibits Mandatory Employee Arbitration Agreements (December 18, 2019)

Helena Kobrin
October 20, 2023

The Healthy Workplaces, Healthy Families Act of 2014 (Act) requires most California employers, regardless of size, to provide paid sick leave benefits to any temporary, part-time, and full-time employee.

On October 4, 2023,Governor Newsom signed Senate Bill 616, which expands the amount of employer-provided paid sick leave benefits under the Act from 24 to 40 hours. Specifically:

• Advance method: Under current law, an employer may opt to reserve 24 hours or three days of paid sick leave benefit in an up-front lump sum for eligible employees to use during the 12-month eligibility year. Starting January 1, 2024, employers must reserve 40 hours or five days on an annual basis.

• Statutory accrual/carryover method: Under current law, an employer may instead opt for eligible employees to accrue paid sick leave over time, such as one hour for every 30 hours worked. An employer can limit annual usage to 24 hours or three days and cap the amount accrued at six days or 48 hours. Starting January 1, 2024, the accrual rate remains at one hour for every 30 hours worked but the employer must raise the annual usage limit to 40 hours or five days and the total accrual cap to 10 days or 80 hours.

• Optional accrual/carryover method: Under current law, an employer may use another regularly-recurring accrual method, such as per pay period, so long as employees accrue at least three days or 24 hours by the 120^th day of the 12-month eligibility period. An employer can limit the annual usage and total cap as with the above statutory accrual method. Starting January 1, 2024, the accrual rate must result in an employee earning at least 24 hours by the 120^th day of his/her eligibility year and no less than 40 hours by the 200^th calendar day, and the employer, as with the statutory accrual method, must raise the annual usage limit to 40 hours or five days and raise the total accrual cap to 10 days or 80 hours.

It remains to be seen whether any of the eight local sick pay ordinances will modify their mandatory sick pay thresholds in response to Senate Bill 616.

Employers must comply with the Act and all pertinent local laws, applying the provision or rule that confers greater rights to the employee.

Take-Aways:

Covered employers should promptly review their existing paid sick leave policies, payroll procedures, and absence request forms with competent legal counsel; assess any interplay with local laws; and notify and train relevant human resources and accounting staff on these changes.

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

See also:

• Disability Leave Policy - Accommodation Dispensation (August 25, 2023)
• Inclusion, Expanded - California's Greater Reach on Family Leave and Paid Sick Benefits (December 9, 2022)

Cindy Bamforth
October 11, 2023

California employers must provide protected leave to employees requiring time off to perform these volunteer civil services:

• Employers of 16 or more employees must provide up to 10 days of unpaid annual leave for Civil Air Patrol duty to eligible volunteer members of the California Wing of the civilian U.S. Air Force Civil Air Patrol when responding to an emergency operation mission;
  
• Employers of all sizes must provide temporary leaves of absence to employees performing emergency rescue duty as volunteer firefighters, reserve peace officers, or to emergency rescue personnel of a fire department or sheriff/police department; and
  
• Employers of 50 or more employees must also allow up to 14 days off per calendar year for emergency rescue personnel to engage in fire, law enforcement or emergency rescue training.

Policy Drafting Tips:

• Covered employers should include a Civil Air Patrol leave policy that requires adequate documentation of the need for leave and confirms the employee’s reinstatement rights;
• All employers should include a volunteer civil services’ leave policy for employees performing emergency-related duties; and
• Covered employers should include an emergency rescue personnel training leave policy.

Take-Aways:

Implement and regularly review your handbook to include all applicable volunteer civil service leave policies, and educate and train your supervisors on these laws.

We publish this series to educate employers on best practices for a well-written handbook that assists applicants, employees, and management alike. To purchase our 2023 template handbook – which contains the above policy and much more – and accompanying forms or for more information, please contact Office Manager Aimee Rosales at 626.583.6600 or officemgr@tbowleslaw.com.

Cindy Bamforth
October 6, 2023

Last week’s blog, Helping Criminals Back Into Society, warned employers with five or more on payroll to steer clear of California Fair Chance Act (Act) hiring practice violations.

Effective October 1, 2023, the state Civil Rights Department (CRD) has issued revised regulations on the Act’s requirements. Among other things, the revisions direct individual assessment for each applicant with a criminal history disclosed or discovered:

• by a post-hiring offer background check
• during an employee’s move to a new post, or
• on change in the business’s ownership or management

Assessment factors include:

• The nature and gravity of the crime, including:
  • The applicant’s conduct;
  • Whether and to what extent persons or property were harmed, including whether the harm was permanent;
  • The context of the crime, including past drug addiction, mental impairment or traumas such as human trafficking, violence, or sexual assault contributed to the commission;
  • Whether a drug addiction or mental impairment has been mitigated or eliminated or could be via reasonable accommodation;
  • The applicant’s age at the time of the crime.
• When the crime occurred;
• Time elapsed since release from any incarceration; and
• The nature of the job in question, including its duties and whether the crime’s context or the resulting type or degree of harm “is likely to occur in the workplace.”

A person later licensed by a government agency or bonded post-conviction to perform a profession or occupation “is probative of the applicant’s conviction history not being directly and adversely related to the specific duties of that job.”

At least five days before a final decision on a conviction’s effect on hiring, the employer must notify the applicant of the right to respond. The regulations specify how the five days is counted depending on how the notice is delivered (e.g., by hand, email, etc.).

The applicant may submit correcting or mitigating information and documentation personally and/or from third parties, for example support letters from teachers, parole officers, or supervisors; police reports; healthcare records; or evidence of rehabilitation. The employer must accept and consider all timely submissions and not insist on receiving particular documents.

Take-Aways:

The Fair Chance Act requires California employers of five or more persons to make conditional offers of employment before checking criminal background and to follow regulation guidelines if a criminal background surfaces post-offer.

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

See also:

• Fair Warning – California Clamps Down on Fair Chance Act Violations (December 10, 2021)
• Know Your Boundaries – New Employer Restrictions on Hiring Notices and Interviews Starting 1, 2020 (June 12, 2020)
• California Adopts Ban the Box Law – Employers Cannot Seek Criminal Record until after Offer to Hire Applicant (October 27, 2017)

Helena Kobrin
September 29, 2023

Employer Moraga-Orinda Fire Protection District has agreed with the California Civil Rights Department to pay $100,000 to settle an alleged violation of the Fair Chance Act.

California’s Fair Chance Act (also referred to as “Ban the Box”), gives people with criminal history a chance to obtain gainful employment. The law prohibits employers with five or more employees from asking about criminal history or performing background checks until after a conditional offer of employment is made.

Employers must consider a person’s qualifications and determine if the person is a good match for a position prior to obtaining permission to delve into any criminal record. Job applications must not include criminal history inquiries and job advertisements must not rule out persons with a criminal history.

If an employer learns of a potentially disqualifying criminal record in a post-offer background check or disclosure, it must allow the applicant to explain mitigating circumstances, such as how long ago the offense occurred, the type of offense, and whether it has any direct, adverse relationship to the job in question.

For example, if someone shoplifted when he was 18 and is now applying for a job as a carpenter at age 46, the shoplifting crime should not bar hiring the person. But if the person embezzled money two years ago and the open position is company treasurer or cashier, the past crime could be a valid reason to rescind the offer.

In the Moraga-Orinda case, the employer allegedly rescinded a conditional job offer without permitting the applicant to provide mitigating information. As CRD Director Kevin Kish stated: “Everyone deserves a fair chance to make a living for themselves and their families. The Fair Chance Act provides important protections against discrimination that can help empower people to retake control of their lives, give back to their communities, and reintegrate into society.”

There are exceptions to the Fair Chance Act for jobs where background checks are required by law, such as caregivers or employees of community care licensed facilities.

Take-Aways:

Covered employers should know and apply Fair Chance Act requirements in their hiring practices.

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

See also:

• Fair Warning – California Clamps Down on Fair Chance Act Violations (December 10, 2021)
• Know Your Boundaries – New Employer Restrictions on Hiring Notices and Interviews Starting 1, 2020 (June 12, 2020)
• New for 2018 California Adopts Ban the Box Law – Ban The Box California 2018 Means Employers Cannot Seek Criminal Record Until After Offer to Hire Applicant(October 27, 2017)

Helena Kobrin
September 22, 2023

As of January 1, 2023, California employers of five or more on payroll must provide up to five days of consecutive or non-consecutive unpaid bereavement leave to eligible full-time or part-time employees upon the death of a “qualified family member” (e.g., spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in law), which must be taken within three months of the death.

Employees must be employed at least 30 days prior to commencement of the leave and although unpaid, the employee may choose to use any available paid sick leave or vacation/PTO benefits.

Policy Drafting Tips:

• Define a “qualified family member;”
• Explain how employees can take a maximum of five consecutive or non-consecutive days off within three months of the date of death;
• Describe eligibility criteria;
• State the leave is unpaid but employees may choose to use available paid sick leave or vacation/PTO benefits;
• Determine whether the employee must provide documentation of the family member’s death; and
• Confirm that the company shall maintain employee confidentiality.

Take-Aways:

Implement and regularly review your handbook to include a bereavement leave policy, and educate and train your supervisors on these laws.

We publish this series to educate employers on best practices for a well-written handbook that assists applicants, employees, and management alike. To purchase our 2023 template handbook – which contains the above policy and much more – and accompanying forms or for more information, please contact Office Manager Aimee Rosales at 626.583.6600 or officemgr@tbowleslaw.com.

See also:

• Attendance and Absence Policy - Show Up Standards (June 22, 2023)
• Time Off Mourning - California Requires Bereavement Leave (December 1, 2022)

Cindy Bamforth
September 21, 2023

Although current illegal drug use is not protected under California or federal law, employers with 25 or more on payroll must reasonably accommodate eligible employees who wish to enter an alcohol or drug rehabilitation program. See, California Labor Code sections 1025-1028.

Smaller employers may also need to provide time off to attend such programs as a reasonable accommodation under the federal Americans with Disabilities Act and/or California’s Fair Employment and Housing Act.

Thus, all California employers should consider including an alcohol and drug rehabilitation policy in their employee handbook.

Policy Drafting Tips:

• Explain how the company will reasonably accommodate employees who voluntarily participate in a treatment or rehabilitation program, provided that this does not impose undue hardship for the employer;
• Determine whether the time off will be paid or unpaid;
• Permit the employee to use available paid sick leave benefits;
• Make reasonable efforts to safeguard the employee’s privacy; and
• Reiterate the company may refuse to hire or may discharge employees who, based on current alcohol or drug use, are unable to perform job duties properly or safely.

Take-Aways:

Implement and regularly review your handbook to include an alcohol and drug rehabilitation policy, and educate and train your supervisors on these laws.

We publish this series to educate employers on best practices for a well-written handbook that assists applicants, employees, and management alike. To purchase our 2023 template handbook – which contains the above policy and much more – and accompanying forms or for more information, please contact Office Manager Aimee Rosales at 626.583.6600 or officemgr@tbowleslaw.com.

See also:

• Workplace Discriminators, Expanded Third-Party Service Companies May Be Liable as “Employers” – On the Hook, New Look (August 25, 2023)
• Keeping It Tight – Drug- and Alcohol-Free Workplace Policy (August 5, 2022)

Cindy Bamforth
September 14, 2023

The Equal Opportunity Employment Commission (EEOC) is issuing a series of guidances, each an extensive manual on addressing a particular workplace disability. The latest is Visual Disabilities in the Workplace and the Americans with Disabilities Act.

The publication explains employer duties to seek reasonable accommodations for disabilities and the EEOC’s function to enforce the ADA. It also focuses on vision impairments in a Q&A format, including:

• the different types of disability; and
• what would and would not be a disability, e.g., vision corrected to normal by glasses and contact lenses is not.

The guidance contains sections on:

• Obtaining, using, and disclosing medical information, including actions an employer can take pre-employment offer, post-employment offer, and during employment;
• Keeping medical information confidential;
• Extensive information on accommodating applicants and employees, including various electronic tools that assist the visually impaired; potential need for policy, testing, and training modifications; work area adjustments; and sighted assistance and services;
• Safety concerns;
• Harassment; and
• Retaliation and interference.

The guidance offers extensive examples throughout. For instance:

An employer routinely posts job openings on an employee break room bulletin board, where employees are encouraged to share information. Daryon, an employee with blurriness and blind spots in his vision, requests electronic notice of all the postings via email so that he will have timely notice of the postings. The employer must provide electronic notice or another effective accommodation that would not result in undue hardship.

Take-Aways:

This EEOC guidance is an excellent tool for employers to address issues related to visually impaired applicants or employees. Employers should take advantage of all the EEOC guidances for correctly handling specific disabilities in hiring, employing, and terminating disabled workers.

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

See also:

• Disability Leave Policy – Accommodation Dispensation (August 25, 2023)
• Take Heed: Responding to Harassment and Discrimination Complaints Correctly (July 28, 2023)
• Workplace Artificial Intelligence EEOC Goes Old School – Date In, Equal Opportunity Out (May 26, 2023)

Helena Kobrin
September 8, 2023