Proposed Amendments to Employment Regulations Regarding Criminal History, the California Family Rights Act, and the New Parent Leave Act

The Fair Employment and Housing Council of the Department of Fair Employment and Housing provided notice on February 16, 2018 that it intends to amend sections 11017.1 and 11087-97 of Title 2 of the California Code of Regulations. Amendment would follow a public hearing at 10:00 a.m. on April 4, 2018 in Los Angeles and review of written comments due by 5:00 p.m. on the same day.

The amendment is intended to clarify interpretations of the Fair Employment and Housing Act. In 2017, two bills (AB 1008 and SB 63) added new sections to the FEHA. AB 1007 is intended to “ban the box” by prohibiting employers from seeking criminal history information until a conditional offer of employment is made. SB 63 enacts the New Parent Leave Act (NPLA), expanding parental leave rights at employers with 20-49 employees.

The Council contends that the proposed amendments are intended to describe how the two new laws operate and fit into the FEHA by centralizing, clarifying, and codifying the two statutes. Specifically, the Council indicates that the amendments will:

“(1) articulate the parameters of AB 1008 in an orderly fashion in the context of existing regulations regarding the consideration of criminal history in employment decisions;

(2) distinguish between ban-the-box and the adverse impact theory of liability;

(3) clarify any ambiguities in AB 1008, particularly how to calculate “five business days”;

(4) integrate SB 63 into existing regulations regarding the California Family Rights Act (CFRA); and

(5) identify differences between CFRA and NPLA, namely jurisdictional differences and the latter’s lack of a “key employee” defense and lack of a provision allowing employers to mandate the use of vacation time or other accrued paid time off.”

As it relates to employment, FEHA prohibits harassment and discrimination because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, and military and/or veteran status of any person.

Consideration of Criminal History in Employment Practices

According to the Council, the purpose of Section 11017.1 is to outline the law governing the consideration of criminal history in employment decisions. The Council’s Consideration of Criminal History in Employment Decisions Regulations became effective July 1, 2017 and (1) set forth state laws that prohibit employers from utilizing certain criminal background information in hiring, promotion, training, discipline, termination, and other employment decisions and (2) articulated the legal theory of adverse impact and its relationship to the FEHA and criminal history.

Shortly after those regulations went into effect, Governor Brown signed the “Ban the Box” bill (AB 1008) into law, which added Government Code section 12952 to the FEHA. The bill amended the FEHA to make it an unlawful employment practice for all employers – public and private – to seek conviction history information until a conditional offer of employment is made, or to include any question seeking disclosure of an applicant’s conviction history on a job application. It further set forth rules and procedures regarding how employers may consider conviction history, how employers must notify applicants whose conditional offers of employment are being rejected because of conviction history, and how job applicants may respond to the employment denial by providing evidence of rehabilitation or mitigating circumstances. The amendments to section 11017.1 of the regulations primarily reiterate AB 1008’s mandates, which represent a broader prohibition on the use of applicants’ criminal history than the preexisting regulations.

California Family Rights Act and New Parent Leave Act

FEHA contains two major categories of family leave provisions: the California Family Rights Act (CFRA) and the New Parent Leave Act (NPLA). CFRA requires private employers of at least 50 employees and all public employers in California to provide employees up to 12 weeks of unpaid leave in a 12-month period for the employee’s own serious health condition, the serious health condition of certain family members, or for baby bonding after the birth or placement of a child for adoption or foster care. NPLA partially expands the baby bonding component of this entitlement by making it an unlawful employment practice for an employer of 20-49 employees to refuse to allow an eligible employee to take up to 12 weeks of job-protected parental leave to bond with a new child within one year of the child’s birth, adoption, or foster care placement. Like CFRA, NPLA also prohibits an employer from refusing to maintain and pay for coverage under a group health plan during the duration of the leave or retaliating against an employee for exercising their rights under the NPLA.

If you are interested in learning more, copies of the Notice of Proposed Action, the Initial Statement of Reasons, the text of the regulations, and any modified texts and the Final Statement of Reasons can be accessed through the Council’s Web page at http://www.dfeh.ca.gov/fehcouncil/. In addition, a qualified employment attorney can help you navigate these and future changes to the law to ensure your business remains compliant.