Earlier this month, Governor Jerry Brown signed A.B. 2282 into law, clarifying several unanswered questions concerning California’s salary history ban.
“Ban the Box” laws prohibit or limit an employer’s ability to ask a job applicant about his or her criminal record. States, counties and cities have enacted this legislation to help applicants with criminal records combat additional barriers to securing employment. We’ve written about these laws as enacted in New Jersey, Washington, D.C., New York City, and California.
In this post, we’ll provide an overview of the “ban the box” provision in Massachusetts, discussing recent modifications which become effective October 13, 2018 and recent warnings issued by the Attorney General’s Office.
TLDR: All Massachusetts employers should ensure that their application forms and hiring practices comply with the “ban the box” provision.
Following in the footsteps of neighboring jurisdictions such as New York City, Albany County, and Massachusetts, on April 10, 2018, Westchester County enacted legislation to ban inquiries into a job applicant’s salary history. The stated purpose of the law is to halt the perpetuation of the gender wage gap and to assist older workers and others returning to the workforce after a long hiatus.
This week, the California Supreme Court rejected the old “totality of circumstances” test to determine if a worker was properly classified as an independent contractor in favor of a new “ABC test” under which employers will be required to classify most workers as employees.
As we reported in an earlier blog post, the Federal Trade Commission and Department of Justice issued guidance in the waning days of the Obama administration reminding HR professionals and others that the antitrust laws could apply in the employment arena, particularly with respect to hiring and compensation matters. There was some question about how vigorously the Trump Administration’s antitrust enforcement would be in this area, but those questions should no longer exist. 2018 is already turning out to likely be an important year regarding antitrust attacks on “no-poach” agreements between businesses, with a class being certified in a major damage action and the head of the Department of Justice Antitrust Division indicating last month that criminal indictments based upon such agreements would be shortly forthcoming. Executives and HR Departments should recognize the significant risks associated with express or implied agreements or “understandings”—or even “gentlemen’s agreements”—where businesses agree not to hire (or poach) each other’s employees or executives.
Many state legislatures spent 2017 tinkering with post-employment covenants. Given the growing trend to legislate locally and the employee mobility issues that seem to nag every employer, we thought the New Year would be a perfect time to review and revisit your post-employment covenants. So for our multi-jurisdictional employers (which seems to be everyone these days), how do your post-employment covenants legally measure up?
This past year, a growing number of states and municipalities banished the Ghost of Christmas Past from haunting job applicants. As a result, employers in those jurisdictions must resolve now to bid auld lang syne to asking applicants about their salary and criminal histories. Employers should take a fresh look at their job applications, and hiring practices, policies and procedures and update them now to remain in compliance in the New Year.
As we enter the holiday season, we gather around the bubbler to sing about a few of our favorite (and not so favorite) things in the world of employment and labor law. Unfortunately, they’re not as sanguine as raindrops on roses or whiskers on kittens…
Some retail employers will be on Santa’s naughty list after the Sixth Circuit found that sales employees paid on a 100% commission or draw basis cannot be required to repay outstanding draws after termination of employment. The Senate decked the halls of the NLRB by confirming a new General Counsel, who will serve a critical policy role and is expected to move away from enforcement of the NLRB’s broadened joint-employer standard. This could be the last Christmas employees have to visit EEOC offices in person to file discrimination charges after the EEOC launched a new online portal, putting employers on alert of the possibility of increased charge filings in 2018. It’s a wonderful Christmas time for minimum wage workers in Montgomery County, Maryland, in DC’s metro area, who joined the small but growing ranks of jurisdictions increasing its minimum wage to $15.00 per hour beginning in 2021. Retail employees in New York might get a silent night away from work thanks to new employee scheduling regulations proposed by the New York State Labor Department that will limit “just in time” or “on call” scheduling and require additional pay for employees scheduled on short notice. While California employers may have longer than 8 nights, they don’t have quite a month to prepare for new regulations that will take effect January 1, 2018, which expressly prohibit employers from inquiring about an applicant’s criminal history prior to a conditional offer of employment.
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.