While reviewing new talent to join your company, you’ll now have to keep in mind that bills banning the use of criminal history are joining the ranks of “ban the box” legislation as the new trend. 2018’s record with employment legislation is just beginning, but the number of 2017 salary history bills carrying over to the New Year, across multiple states, has already set the tone. Hold onto your hard hats, because it’s likely that employment legislation is going to have a bumpy ride in 2018.
IN EFFECT: Revised Form I-9
Be aware that a new I-9 Form was issued by the Department of Homeland Security, and became effective on September 17th, 2017. You can view the new form here.
FUTURE: Temporary Protected Status Termination
The U.S. Citizenship and Immigration Services announced on January 8, 2018 that they are terminating the Temporary Protected Status (TPS) for El Salvador. Both Haiti and Nicaragua’s TPS has also been terminated as of November of 2017, and it is rumored that Honduras is next. The TPS termination will become effective for Nicaraguans on January 5, 2019; for Haitians on July 22, 2019; and for Salvadorians on September 9, 2019. This will affect an estimated 520,000 people living in the United States, and will mean that the issuing of employment authorization documents (work permits) for these countries will likely end as well.
IN EFFECT: Minimum Wage Increase (SB 3)
As of January 1, 2018, the minimum wage has increased from $10.50 per hour to $11 per hour for California businesses with 26 employees or more. The minimum wage for businesses with 25 or less employees has increased from $10 per hour to $10.50 per hour.
IN EFFECT: Salary Information (AB 168)
Effective January 1, 2018, AB 168 prohibits a potential employer from inquiring about an applicant’s salary history and requires applicable businesses to disclose a pay scale for the position upon an applicant’s “reasonable request.” This law does permit employers to consider the salary history of an applicant if the information is provided “voluntarily and without prompting.” However, you should keep in mind that the California Fair Pay Act (Labor Code § 1197.5(a)(2)) will preclude employers from relying on prior salary, by itself.
IN EFFECT: Conviction History for Employment (AB 1008)
As an amendment to the California Fair Employment and Housing Act (FEHA), AB 1008 follows “ban the box” trends by restricting an employer’s ability to make hiring decisions based on a job applicant’s conviction records. Californian employers with 5 or more employees are prohibited from inquiring into an applicant’s conviction history before a conditional offer has been made. Applicants that are denied based off of the information conducted in a criminal background check will be required to make an individualized assessment of whether the applicant’s history has “a direct and adverse relationship with the specific duties of the job.”
IN EFFECT: Criminal History on Background Reports (SB 393)
This bill enables a person who has an arrest that didn’t result in a conviction to petition to the court to have their arrest record sealed. Those charged with certain crimes, like domestic violence, would be ineligible to have their records sealed. Moving forward, you should talk to your employment screening company about how they’re complying with this law. You might also want to incorporate drug testing into your employment screening process as well.
IN EFFECT: Recreational Marijuana Legalization (Proposition 64)
Be aware that on January 1, 2018, the legal sale and taxation of recreational marijuana will go into effect. Recreational marijuana vendors with temporary licenses will become valid on the 1st. Employers within states that have legalized recreational and medicinal marijuana should review their company’s drug policies. According to law firm, Seyfarth and Shaw, California employers can still enforce a drug-free workplace despite the recreational marijuana laws that have gone into effect. It is still recommended that you consult your own legal council before modifying any policies that may lead to employee termination.
IN EFFECT: Immigration Worksite Enforcement (AB 450)
Employers are prohibited from giving consent to immigration enforcement officers (without a warrant or subpoena) to enter any non-public areas of the workplace or access, view, or obtain employee records, unless authorized by federal law. This does not apply to I9 Employment Eligibility Verification forms (where a Notice of Inspection has been provided). Employers must also provide notices to each “current affected employee” within 72 hours of the employer’s receipt of a written immigration agency notice containing the results of the investigation. Fines range from $2,000-5,000 for the first violation.
IN EFFECT: Gender-Based Harassment Training (SB 396)
Employers with 50 or more employees must train supervisors on harassment based on gender identity, gender expression and sexual orientation. This is in addition to the already required two hours of training regarding sexual harassment. Employers must place a poster on transgender workplace rights developed by the Department of Fair Employment and Housing (DFEH) within the workplace.
IN EFFECT: New Parent Leave Act (SB 63)
SB 63 has amended the California Family Rights Act (CFRA) to require Californian employers with 20 to 49 employees to extend protected bonding leave (up to 12 work weeks) to eligible employees with children born to, adopted by or placed into foster care with the employee. Employees must have at least 12 months of employment with the company, have worked at least 1,250 hours, and are employed at a worksite with 20+ employees within 75 miles of that worksite to be eligible.
IN EFFECT: Breastfeeding Ordinance in San Francisco (see ordinance)
As of January 1, 2018, employers are required to provide a private “lactation location” for new mothers. The location cannot be a bathroom and must follow five criteria: 1) shielded from view, 2) free from intrusion by other employees or the public, 3) available as needed, 4) in close proximity to the work area, and 5) safe, clean and free of toxic, hazardous materials. Employers must also provide a place to sit, a table to place a breast pump and personal items, electricity, a sink with running water and a refrigerator. San Francisco employers are also required to provide a “lactation break”.
FUTURE: Salary History Ban Ordinance in San Francisco (see ‘Parity in Pay’ Ordinance)
This ordinance bans employers with contracts with the City of San Francisco and their agents (those seeking employment within the geographic boundaries of the city are already affected) from considering the current or past salary of a job applicant. While San Francisco Airport is technically outside of city limits, the ordinance applies there as well. It also prohibits companies from disclosing a current or former employee’s salary history without that employee’s authorization. This salary history ban applies to temporary or seasonal work and commissioned work.
If an applicant voluntarily (without being prompted by a prospective employer) discloses their salary history, the revised ordinance now permits the employer to consider that information. This ordinance will go into effect on July 1st, 2018.
FUTURE: The Gender Recognition Act (SB 179)
On September 1, 2018 persons seeking a court judgment to recognize a change of gender or a new birth certificate will not be required to have undergone any gender transition treatment. On January 1, 2019 persons seeking a new or renewed driver’s license may choose from gender categories of female, male and nonbinary.
PENDING: Landlord Employment Screening (HB 749)
This bill would allow rental property owners in Florida to require any of their current or potential employees to undergo a level 1 background screening check. If passed, the rental agreement must also include a disclosure stating whether the landlord has required their employees to undergo background screening. If employment screening is required, the disclosure must include the full name and job description of the employee/potential employee and if their criminal check indicated credit card theft, violent crimes, or sexual battery. This bill was introduced to the Florida House on January 9, 2018.
PENDING: Discrimination in Employment Screening (HB 433)
This bill prohibits employers from inquiring into or considering an applicant’s criminal history on an initial employment application.
PENDING: The Senator Helen Gordon Davis Fair Pay Protection Act (HB 393)
This act would prohibit employers from providing “less favorable employment opportunities to employees based on their sex” like assigning an employee to a position or career track in which the position requires less skill, effort and responsibility than the work performed by individuals in the same occupation and labor market or failing to provide an employee with information about promotions.
PENDING: Fair Chance at Employment Act (HB 182)
This act would amend the Official Code of Georgia Annotated and would prohibit employers from requesting a credit check on an employee or job applicant, with exceptions.
PENDING: Wage History in the Equal Pay Act (HB 4163)
This act would amend the Equal Pay Act of 2003 by prohibiting employers from screening or inquiring into job applicants wage or salary history. Some exceptions apply.
IN EFFECT: Ban the Box Amendments
As an amendment to the New Jersey Opportunity to Compete Act (OTCA), this revised law prohibits employers from seeking information about current and expunged criminal records of job applicants during the initial application process. This law applies to employers with 15 or more employees over 20 calendar weeks within New Jersey.
IN EFFECT: Energy Efficiency Ordinance in New York City (see ordinance)
This bill requires both residential and commercial buildings larger than 50,000 sq. ft. to post a federal energy efficiency rating (with a scoring system of A through D) starting in 2020. While letter ratings won’t be a requirement until 2020, some provisions of this ordinance are already in effect.
PENDING: Use of Salary History (A 2040)
This bill would prohibit employers from seeking the salary history of prospective employees and rely on that history in determining the wages or salary of that individual. This bill was ordered a third reading in the Assembly after it died in the Senate on January 3, 2018.
PENDING: Ban the Box Bill (A 2343)
A 2343 would require employers to make a conditional offer of employment before inquiring about the criminal history (or performing a criminal background check) of a prospective employee. This bill also has a third reading ordered after dying in the Senate on January 3, 2018.
PENDING: Credit History for Employment (A 5310)
This bill will prohibit the use of credit history for hiring, employment and licensing determinations. Some exceptions apply, like peace officers and employers authorized by the state.
IN EFFECT AND FUTURE: Equal Pay Act of 2017 (HB 2005)
Effective October 2017, Oregon employers are prohibited from seeking an applicant’s salary history. This law also requires an employer to post notices (a template will be supplied by the Oregon Bureau of Labor and Industries) and will take effect on January 1, 2019. Civil actions against employers who seek an applicant’s salary history will not be permitted until January 1, 2024
IN EFFECT: Reduced Penalties for the Possession of Heroin, Cocaine, and Meth (HB 2355)
HB 2355 reclassifies the possession of several drugs (such as heroin, cocaine, and methamphetamine) from a felony to a misdemeanor and reduces the punishments for the possession of these drugs. The bill also expands access to drug treatment for first-time offenders.
IN EFFECT: Ban the Box Ordinance in Spokane, Washington
The City of Spokane, Washington enacted a new ordinance that limits when employers can inquire into (and consider) the criminal history of a job applicant. A conditional offer of employment must be extended before performing a criminal background check. The provision that applies to private employers will go into effect on June 14, 2018.
PENDING: Fair Wage Amendment Act of 2017 (B 22-0016)
Introduced in 2017, this amendment would prohibit an employer from inquiring about and screening prospective employees based on their prior wage history.
PENDING: Second Chance Amendment Act of 2017 (B 22-0560)
This bill would require criminal records without a conviction to be automatically sealed. This bill would also shorten the waiting period before a person is eligible to seal their conviction record, and it expands the eligibility.
Although laws prohibiting the use of salary history have gained traction, keep your eyes peeled on “ban the box” legislation. Despite its emergence two/three years ago, the trend is still very strong and will likely bleed into the rest of 2018. As the year goes on, don’t forget to subscribe for updates on these bills and the employment legislation to come.
What laws are you the most concerned about? Are there any employment laws you’re happy about?
This article is intended for informational purposes only. Consult your lawyer before making any procedural changes.
Sometimes we miss a bill. If you believe we should cover a particular piece of legislation, please leave a comment and we’ll add it to our list.
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