The City of Los Angeles (City) is now the second city in California after San Francisco to restrict employers from asking job applicants about criminal conviction until a conditional offer of employment has been made. See, San Francisco Employers Must Give Former Convicts a Fighting Chance (August, 2014).

Effective January 22, 2017, Los Angeles’ Fair Chance Initiative (the Ordinance) will restrict employers with 10 or more employees located or doing business in the City from making such pre-offer inquiries.

The Ordinance covers many key points including:

Who is an Employer. Any individual, firm, corporation partnership, labor organization, group of persons, association, or other organization however organized, that is located or doing business in the City and that employs ten or more employees. Employer includes job placement and referral agencies and other employment agencies. It does not include the City of Los Angeles, any other local governmental unit or federal government.

Who is an Employee. Any individual who performs at least two hours of work on average each week within the geographic boundaries of the City and is entitled to receive minimum wage (or higher).

Definition of “Conditional Offer of Employment.” An offer of employment that is conditioned only on an assessment of the applicant’s criminal history, if any, and the duties and responsibilities of the employment position.

Employer Assessment. The employer must perform a written assessment that effectively links the specific aspects of the applicant’s criminal history with the risks inherent in the duties of the employment position sought by the applicant.

Fair Chance Process: An applicant must have the opportunity to provide information or documentation to an employer regarding the accuracy of his/her criminal history.

Designated Administrative Agency (DAA). The Department of Public Works, Bureau of Contract Administration will be the DAA in charge of all the administrative responsibilities under this new law.

Penalty and Administrative Fines. Up to $500 for the first violation, up to $1,000 for the second and up to $2,000 for the third and subsequent violations of the Ordinance other than sections 189.04 and 189.06. Penalties and administrative fines shall be up to $500 for each violation of sections 189.04 and 189.06 concerning posting at the job site, advertisements for positions, and record retention. This provision will not apply prior to July 1, 2017; instead the DAA shall only issue written warnings.

Notice and Posting Requirements. Employers shall post a notice informing applicants of the provisions of this new law in a conspicuous place in the workplace, job site, or other location in the City under Employer’s control and visited by employment applicants. Employers must also send a copy of such notice to each applicable labor union with which they have a collective bargaining agreement.

Affected employers should review and comply with this new law, including reviewing and modifying employee applications and adjusting assessment and interviewing protocol, to ensure lawful and timely inquiry into an applicant’s criminal history.

Click here for access to the forms and posters related to the Ordinance.

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

Cindy Bamforth
January 18, 2017

California restricts the type of questions employers may ask job applicants about their criminal history. Employers may not request information about a felony or serious criminal misdemeanor which has been judicially expunged, dismissed or ordered sealed and employers may only seek information about criminal convictions when job-related and consistent with business necessity. For example, hiring for a finance manager or chief financial officer would almost certainly justify asking for criminal history relating to theft, embezzlement, and similar crimes. See, Using Criminal Records in Job Screening (June, 2012).

California is now attempting to give workers with a juvenile criminal record an opportunity to demonstrate they can be rehabilitated, through Assembly Bill (AB) 1843 which amends Labor Code section 432.7.

Effective January 1, 2017, this new law forbids most employers from asking in an employment application or otherwise obtaining information relating to an arrest, detention, processing diversion, supervision, adjudication, or court disposition that occurred while the person was under the jurisdiction of a juvenile court.

AB 1843 clarifies that a “conviction” does not include any court action concerning a person who is currently under the process and jurisdiction of the juvenile court.

The law allows limited exceptions for certain health care facilities.

Employers that hire employees in California should promptly review and update their employment application forms and policies in order to comply with the new law.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin
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Cindy Bamforth
January 12, 2017

Existing law prohibits an employer from discharging or in any manner discriminating or retaliating against an employee who is a victim of domestic violence, sexual assault, or stalking for taking time off from work for specified activities in the aftermath of those acts. See Labor Code section 230.

California Assembly Bill AB 2337 (the Act), passed in 2016, amended Labor Code section 230.1 to require that private employers with 25 or more employees provide employees information about their rights to appear in court, their rights to accommodation to protect their safety while at work, and their right to freedom from discrimination or retaliation based on their status as victims of domestic violence, sexual assault, or stalking. The Act requires that an employer provide new employees written notice of these rights upon hire and other employees upon request.

The Act charges the Labor Commissioner with creating a written notice for this purpose and posting it on the Commissioner’s website or before July 1, 2017, which is also the date when employers must begin complying with the Act. An Employer may use the form posted by the Labor Commissioner or develop its own form which must be substantially similar in content and clarity.

Once the notice is available, unless there is a compelling reason not to do so, it would be advisable to use the Labor Commissioner’s form and give it to all employees regardless of whether they request it.

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

Helena Kobrin
January 6, 2017

California Assembly Bill (AB) 1978, enacted September 2016 as the Property Services Protection law (the Act), will require janitorial service providers to register annually with the Division of Labor Standards Enforcement (DLSE) and to provide sexual harassment training to their employees. The Act covers all enterprises providing janitorial services under a contract, subcontract or franchise agreements and who have at least one “covered worker.” The new law refers to any such business as an “employer” even if the covered worker/janitor is an independent contractor or franchisee.

The state legislature enacted the Act after Frontline’s “Rape on the Night Shift." and University of California, Berkeley Center for Labor Research and Education’s “Race to the Bottom” reported widespread sexual abuse of primarily female workers in the janitorial sector.

The Act requires all janitorial employers to:

• Begin keeping certain covered worker records as of January 1, 2017 and maintain them for three years. These include names and addresses, hours worked daily, beginning and ending times, wages and pay rate in every payroll period, ages of minor employees, and other employment conditions.

• Effective July 1, 2018, register annually with the DLSE and pay a $500 fee or be prohibited from conducting any janitorial business. Beginning July 1, 2018, janitorial employers must also provide all new and current covered workers a copy of Department of Fair Employment and Housing’s pamphlet DFEH-185.

• Effective January 1, 2019, provide required sexual violence and harassment prevention training. The DLSE has until January 1, 2018 to propose the requirements for such training.

The Act also includes civil penalties of $100/day up to $10,000 for any employer that does not register. Beginning July 1, 2018, any entity or individual that contracts with an unregistered business will be subject to a civil penalty between $2,000 and $10,000 for a first offense and from $10,000 to $25,000 for subsequent offenses.

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

Helena Kobrin
December 20, 2016

The Internal Revenue Service (IRS) has announced a decrease of its optional standard mileage reimbursement rate for an employee’s business miles from 54 cents to 53.5 cents, effective January 1, 2017.

The government bases its standard mileage rate on an annual study of fixed and variable automotive operating costs, including insurance, repairs, maintenance and fuel.

Under California Labor Code section 2802, employers must reimburse employees for all actual work-related expenses necessarily incurred.

According to California’s Division of Labor Standards Enforcement’s Enforcement Policies and Interpretations Manual (p.102), using the IRS mileage reimbursement rate will satisfy an employer’s reimbursement obligation absent evidence demonstrating otherwise. For example, if the employee can show the IRS reimbursement rate does not cover all of his/her actual and necessary business-related vehicle expenses, the employer must pay the difference.

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

Cindy Bamforth
December 16, 2016

California minimum wage will increase to $10.50 per hour on January 1, 2017 for employers with 26 or more employees (smaller employers will continue to pay $10.00 per hour until January 1, 2018) then increase each year until reaching $15 per hour in 2022. See California’s Gradual Increases in Minimum Wage, to Reach $15.00 Per Hour by January 1, 2022 (April, 2016).

Concurrently, many California cities (and two counties) have implemented their own minimum wage ordinances. Employers therefore should check regularly for any new or revised minimum wage.

Below is a comprehensive list of currently enacted minimum wage rates in effect on January 1, 2017 or increasing later in the year for all applicable locations that have enacted their own minimum wage ordinances.

See also:

• Los Angeles Moves to Enforce City Minimum Wage Ordinance. Required Forms Now Available (September, 2016).
• Rising Minimum Wages, The California Trend Continues San Diego Approves its First Gradual Increase, Effective July 11, 2016 (August, 2016).
• San Francisco Minimum Wage Rises to $13.00 on July 1, 2016. Will Continue Climb to $15.00 (June, 2016).
• Pasadena Gradually Increases Minimum Wage. The City of Pasadena Approves Gradual Increases in Minimum Wage Stating July 1, 2016 (May, 2016).
• City of Santa Monica Increasing Minimum Wage Annually from 2016 to 2020 (May, 2016).
• Los Angeles County Approves Gradual Increases in Minimum Wage Starting 2016 (July, 2015).
• Oakland Minimum Wage Escalates to $12.25 Rate Effective March 2, 2015 (April, 2015).

A new California law, Health and Safety Code section 118600, requires that business establishments, places of public accommodation, and state or local government agencies must designate their single-user toilet facilities as all-gender facilities. The law provides that such facilities are those that are designated for use by a single occupant or for family or assisted use.

This statute goes into effect on March 1, 2017. There are specific requirements for the identifying signage for unisex toilets in Chapter 11B, section 213.2.1-.3 of the California Building Code, which are currently being revised.

Nothing in the statute requires a business that does not already have them to create single occupant toilet facilities.

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

Helena Kobrin
December 7, 2016

California Labor Code sections 515.5 and 515.6 exempt certain computer software professionals and licensed physicians and surgeons from overtime compensation as long as they receive at least certain specified minimum hourly rates of pay.

As we recently covered in Overtime – Exempt Physicians and Surgeons Minimum Hourly Rate Increases Are Near and Computer Software Professional Overtime Exemption Requirement, these rates were to increase January 2017 from $76.24 to $77.23 (physicians) and from $41.85 to $42.39 (computer software professionals).

However, by an October 25, 2016 announcement California’s Department of Industrial Relations (DIR) has revised those post-2016 rates: (a) a minimum equivalent of $77.15 per hour for eligible physicians and surgeons (an eight cent reduction); and (b) a minimum hourly rate of $42.35 for otherwise-qualified computer software employees (a four cent reduction). Alternatively, an otherwise-qualified software employee paid by salary is eligible on minimum annual compensation of $88,231.36, payable at least once monthly at no less than $7,352.62.

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

Cindy Bamforth
updated, revised December 3, 2016

California’s Home Care Organization Consumer Protection Act (the Act) required all home health care organizations (HCOs) to obtain a license from the Home Care Services Bureau (HCSB) of the Department of Social Services (DSS) by July 1, 2016 and to register their home care aides with the HCSB. See, You Snooze, You Lose ( April, 2016) and Home Health Care Organizations Last Chance to Continue Operations After June 30, 2016 (June, 2016).

For those HCOs that are now licensed, the HCSB will soon be implementing the next phase of the Act by commencing unannounced biennial (i.e., every two years) inspections of all licensees. See Health and Safety Code 1796.52(b) and Written Directive 90-050(a). The HCSB analyst conducting the inspection will focus on an HCO’s compliance with applicable laws with final report to note any deficiencies found. The HCO will then need to implement a plan of correction to remedy each deficiency.

The HCSB has stated that it will start these inspections in late December, 2016 or January, 2017, minimally to include review of premises, books, and records. Refusal to permit an inspection is grounds for the HCSB to revoke an HCO’s license.

The HCSB has created an HCO inspection checklist. An HCO can use this document to confirm it has all relevant records hard copy and to determine and fix any potential deficiencies before an inspection occurs. Analysts will not accept electronic copies.

The analyst is to come to the inspection with all HCSB information on any outstanding fees; consumer complaints; the background checks of all associated home care aides, owners and administrative staff with access to clients; and the status of any waivers or exceptions to the Act’s provisions.

How long an inspection will take depends on the size of the HCO, how well it has organized its records, and the number of deficiencies found. Obviously, the better an HCO can prepare for the visit, the smoother and faster the inspection is likely to go.

In its October webinar, the HCSB encouraged HCOs to provide feedback during this initial inspection process.

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

Helena Kobrin
December 1, 2016