SBE News

GSBE Business and Employment Update 08/19/17

AB1080 – Passed Assembly
GSBE Golden State Builders ExchangesExisting law imposes various requirements with respect to contracting by public entities. This bill would require a state agency awarding specified contracts to provide a 5% bid preference to a bidder or subcontractor that provided credible health care coverage, as defined, to employees during the 12-month period immediately preceding submission of the bid. The bill would require a bidder and its subcontractors to submit claim statements, on a form developed by the Department of General Services with the Department of Industrial Relations, certifying that the bidder and all of the listed sub-contractors qualify for the bid preference. The bill would require the bidder and contractors to continue to provide credible health care coverage to employees, as specified. The bill would impose civil penalties for bidder and contractor violations of those requirements.

July 1 Changes for California Employers: Did You Miss Any?
In the past, California employers needed to worry only about new laws taking effect on January 1 of each year. Nowadays, midyear changes for California employers have become a new norm, either as a result of legislation with delayed implementation dates or the passage of midyear regulations.

Below is a summary of some of the state laws you need to pay attention to this summer.

1. Criminal History Regulations
California’s new criminal history regulations went into effect July 1, 2017. The regulations reiterate existing prohibitions on the use of criminal history information in employment decisions and impose additional restrictions. If you conduct criminal background checks, make sure that your policies comply with the new regulations.

California employers cannot use criminal history information in employment decisions if doing so would have an “adverse impact” on a protected class (including race, national origin, and gender) unless you can show that the information is job-related and consistent with business necessity.

Hiring decisions based on an applicant’s criminal history must be
clearly related to successful performance in the job and in the workplace, and must measure a person’s fitness for the specific position at issue.

To show job relatedness and business necessity, an employer must, at a minimum, consider the nature and gravity of the offense, the elapsed time since the offense and the nature of the job at issue.

In addition to existing notice requirements under federal and state law, the new regulations require you to notify individuals who are screened out because of criminal history and give them an opportunity to provide information showing why they should not be excluded.

2. Gender Identity/Gender Expression Regulations
On July 1, 2017, new California regulations took effect that specifically addresses protections for transgender persons, including equal access to use of facilities, such as restrooms.

Under California’s Fair Employment and Housing Act (FEHA), employers cannot discriminate on the basis of gender identity or gender expression or because an individual is transgender. The new regulations also make it unlawful to discriminate against someone who is transitioning, has transitioned or is perceived to be transitioning. The regulations provide specific definitions of the terms “gender identity,” “gender expression,” “transgender” and “transitioning.” Understanding basic definitions and concepts are part of the process for creating a respectful workplace and improving communication.

The regulations prohibit employers from asking questions that identify an individual on the basis of sex, gender, gender identity or gender expression. The regulations also prohibit employers from requiring individuals to provide proof of sex, gender, gender identity or gender expression. Employers who have affirmative action reporting or recordkeeping requirements, such as EEO-1 reports, may request applicants to self-identify but only on a voluntary basis.

You must honor an employee’s request to be referred to by a particular name, gender or pronoun, including gender-neutral pronouns. You can use the gender or legal name that appears on an employee’s government-issued identification document only if necessary to meet a legally-mandated obligation.

Gender specific dress codes are discriminatory in most cases. Also, employees can dress consistent with their gender identity/expression. If you think a business necessity requires you to institute a gender specific dress code, talk to an attorney.

The regulations also address how employees may use employers’ facilities, including restrooms. You must provide all employees with safe, comparable and adequate facilities without regard to the sex of employees. An employee must be allowed to use the facility that corresponds to the employee’s gender identity or gender expression. You cannot require an employee to use a particular facility, such as a unisex or single-user restroom.

3. New Notice Regarding Victim Leave Rights
All employers now must provide new employees with a written notice about the rights of victims of domestic violence, sexual assault and stalking to take protected time off for medical treatment or legal proceedings. The notice also contains information on victims’ rights to accommodation and protections against discrimination.

The Labor Commissioner developed this form, which can be found in both English and Spanish.

Employers must provide this information to new workers when hired and current workers upon request.