Just six months after California modified its regulations concerning past criminal convictions for applicants, California has taken the additional step of modifying the Fair Employment and Housing Act (“FEHA”) to expressly prohibit employers from inquiring about an applicant’s criminal history prior to a conditional offer of employment, and strictly limiting an employer’s use of an applicant’s criminal history following a conditional offer.
Recent cases in New York and Pennsylvania demonstrate that, at least in some jurisdictions and under some circumstances, a plaintiff can state a valid claim for unlawful gender discrimination based on a spouse’s jealousy.
California has joined a growing list of jurisdictions, including New York City, Massachusetts, Delaware and Oregon, among others, banning salary history inquiries from job applicants. Governor Brown signed the law into effect last week and it becomes effective on January 1, 2018.
California’s new Ban the Box regulation became effective last week. Effective July 1, 2017, questions by public employers concerning an applicant or employee’s criminal convictions will now be subject to the new regulation that employers can locate here. That regulation raises the bar employers must clear in order to pose criminal conviction-related questions to applicants and employees. And it raises it significantly. We discuss the new regulation below.
We had such a spirited panel discussion on pay equity at our Third Annual Employment Law Summit recently that we wanted to follow up with a post addressing the current state of play on pay equity legislation, particularly with respect to salary history disclosure laws. This is a rapidly advancing area of the law in which we continue to see new developments.
My colleague Jessica Catlow was quoted in the SHRM article, Is Banning Salary History Discussions a Game Changer? in which she analyzes a recent Massachusetts law that prohibits employers from asking job applicants about their salary history. Catlow highlights the law’s impact on the way women negotiate salary during the hiring process. The article provides an overview of the law and examines the likelihood of a nationwide ban on pre-hire salary questions.
Being connected to not just your friends, but their friends and their friends’ friends (it’s all six degrees of separation, right?) means that it’s become increasingly hard to stay anonymous when using an online dating platform. Just ask one recent male user of OkCupid who made vulgar and inappropriate comments to a female user. Her response? Post the conversation and the man’s profile picture to her Facebook account. He insulted her, she publicized him. So far, there are no legal implications.
Her friend, an independent recruiter for tech startups, saw the post and recognized the man’s profile picture. As it turns out, it was also his LinkedIn profile picture, and he had just applied for a position with one of her clients. Her response? Withdraw his application from consideration and tell him to treat women better online. He insulted her friend, she withdrew his application for employment. Here is where the criticism started.
The question: Can a recruiter reject a potential applicant based on inappropriate comments made on a dating site?
We have co-authored an alert with our affiliate government relations consulting group, ML Strategies entitled, “Massachusetts State Legislature Takes Action on Major Employment Reform as Legislative Session Ends”, which addresses key legislation concerning pay equity, transgender anti-discrimination, non-compete agreement reform, credit checks reform and wage theft. The alert provides a review of the new laws and their implications for employers.
In an important victory for employers, the Supreme Court in Spokeo, Inc. v. Robins held that a plaintiff does not have Article III standing to sue in federal court under the Fair Credit Reporting Act (FCRA) and other federal statutes absent a sufficient allegation of the existence of a concrete injury. The Supreme Court was clear that alleging a bare procedural violation absent any concrete injury to the plaintiff was insufficient to move a case forward. While it remanded the case to determine whether the plaintiff sufficiently alleged a concrete injury, employers should welcome this decision as a potential end to costly FCRA (and other statutory) class actions based on trivial violations of procedural requirements that don’t harm anyone.
My colleague Tyrone Thomas, was quoted in the Bloomberg BNA article entitled Managing Bias Risks While Increasing Workplace Diversity in which he analyzes the threat of reverse racism claims arising from employer diversity efforts. Thomas notes that diversity strategies should be tailored to the workplace and provides steps for employers to develop well-crafted diversity plans. The article outlines examples of reverse bias claims, methods to avoid these risks, and employers’ options in implementing diversity strategies.