a time or in a manner not required by federal law. Labor Code section 90.2 requires employers to post a notice informing employees of any inspections of I-9 Forms or other employment records conducted by an immigration agency. The posting must occur within 72 hours of receiving the inspection notice, including in a language normally used to communicate work related information. The posting must contain the following information: 1. The name of the immigration agency conducting the inspection; 2. The date the employer received the notice of inspection; 3. The nature of the inspection, to the extent known; and 4. A copy of the notice of inspection. The Labor Commissioner is directed to develop a template notice by July 1, 2018. Upon reasonable request, the employer must provide affected employees with a copy of the notice of inspection. Moreover, the law requires that, except as otherwise required by federal law, employers must provide each “affected employee” (and their exclusive collective bargaining representative, if any) a copy of the agency’s results of the inspection within 72 hours. The notice must relate to the affected employee only, and contain the following information: 1. A description of the deficiencies identified in the written immigration inspection results notice related to the affected employee; 2. The time period for correcting any potential deficiencies identified by the agency; 3. The time and date of any meeting with the employer to correct any deficiencies; and 4. Notice that the employee has a right to representation during any meeting scheduled with the employer. The notice must be delivered by hand at the workplace, if possible, or by mail and email if hand delivery is not possible, and must include notice to the affected employee’s representatives, including collective bargaining representatives. Penalties for failure to comply with the above requirements range from $2,000 to $10,000 per event. California “Bans the Box” A.B. 1008 amends the Fair Employment Housing Act (Government Code § 12952) to mandate a multi-step process for requesting and considering an applicant’s criminal conviction history until after a conditional offer of employment has been extended. The new law applies to employers with five or more employees, and contains exceptions for farm labor contractors and positions for which an
employer is required by law to conduct background checks or restrict employment based on criminal history. Employers must conduct an individualized assessment before rejecting an applicant based on a criminal conviction, including consideration of whether the criminal history has a “direct and adverse relationship with the specific duties of the job that justif[ies] denying the applicant the position,” taking into account the “nature and gravity” of the offense or conduct, the amount of time that has passed since the offense and completion of the sentence, and the nature of the job. Once the employer has made the decision to disqualify the candidate, the employer must then provide written notice of the preliminary decision to the candidate. The candidate then gets five business days to respond to the notice, and if he or she disputes the accuracy of the conviction history findings, then the candidate gets an additional five business days to respond to the notice. The employer must consider any information from the applicant before making a final decision, which must include: the final denial or disqualification; any procedure the employer has for challenging the decision; and the right to file a complaint with the Department of Fair Employment and Housing (DFEH). The employer may, but is not required to, justify or explain the reasoning for the final decision. Applicants can sue for alleged violations of the provision, requesting compensatory damages, attorneys’ fees and costs. Prior Salary Information California employers are now prohibited from seeking or relying on an applicant’s salary history as a factor in determining whether to offer employment or what salary to offer. (Labor Code § 432.3.) The law defines “salary history information” to include both compensation and benefits. While the new law does not prohibit an applicant from voluntarily and without prompting providing salary history information, or an employer from considering or relying on a voluntary disclosure in determining the salary for that applicant, it would be difficult for an employer to prove that the disclosure was truly “voluntary and without prompting.” The new law also requires employers to provide the pay scale for the position upon an applicant’s request. Section 432.3, consistent with Labor Code section 1197.5 (the Equal Pay Act”) affirms that consideration of prior salary, by itself, may not be used to justify any disparity in compensation. Parental Leave for Small Employers The California Family Rights Act (CFRA) provide employees with up to 12 weeks of unpaid leave to bond with a new child within one year of the child’s birth, adoption or foster care placement. The law was limited to employers with 50 or more workers. Under the New Parent Leave Act, the threshold has been lowered to 20 or more employees within a 75-mile radius. Employees are eligible to take leave once they have 12 months of service with the employer, worked at least 1,250 hours in the prior twelve months, and work at a worksite with 20 or more employees within a 75 mile radius. Eligible employees may use paid sick leave for parental leave. If both parents work for the company, leave can be limited to a combined total of 12 weeks and the employer can require the leave be taken concurrently. Cal-WARN Act Applies even for Temporary Layoffs The federal Worker Adjustment and Retraining Notification Act (WARN ACT) requires covered employers to provide employees and certain agencies 60 days’ advance notice before closing a plant or conducting a “mass layoff” when 50 or more employees at a covered establishment experience a “layoff” during any 30-day period. Covered employers that do not comply with or qualify for an exception may be
26 Western Grower & Shipper | www.wga.com JANUARY | FEBRUARY 2018
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