Cal Chamber - Led Coalition Continues to Seek Changes to Confusing Regulations
Monday, November 19, 2018
The California Chamber of Commerce continues to seek technical changes to state regulations proposed to implement the New Parent Leave Act (NPLA) and the statewide ban-the-box law, which both went into effect on January 1.
These laws amend the state Fair Employment and Housing Act (FEHA).
In September, a CalChamber-led coalition sent a letter urging the Fair Employment and Housing Council (FEHC) to clarify the overly broad and confusing regulations because they make it difficult for employers to comply. The council has since revised its regulations and the coalition submitted additional comments because the draft regulations still are confusing for employers.
Regulating Criminal History Checks
California’s new ban-the-box law prohibits employers with five or more employees from asking job candidates about any criminal background before making a conditional job offer. It is a broader prohibition on the use of criminal history information than the regulations the FEHC adopted last year that went into effect on July 1, 2017.
The latest FEHC proposal is an attempt to merge the new law with the pre-existing regulations, setting forth rules and procedures for when and how an employer can receive criminal history information about a job applicant.
AB 1008 (McCarty; D-Sacramento) was introduced on February 16, 2017 and signed by the Governor on October 14, 2017. AB 1008 added Government Code Section 12952, which imposes various mandates regarding conviction history.
The coalition was able to secure a change to the draft regulation so that it used the term “criminal history” instead of “worker’s record.” While this is helpful, unfortunately, the proposed regulations still contain other language that appears to acknowledge that some groups are unlikely to comply with the regulations without relieving those groups of liability or a duty to try to comply with the rules.
In addition, the definitions of “client employer” and “labor contractor” used in the proposed regulations differ from the definition in the law. For legal accuracy and to avoid confusion, the coalition urges the council to use instead the exact definitions of “client employer” and “labor contractor” from the California Labor Code.
The coalition remains concerned that issues with other sections of the proposed regulations have not been addressed, including one section that causes more confusion by specifically spelling out additional limitations required by local ordinances in San Francisco and Los Angeles. Providing these specific examples is confusing because San Francisco and Los Angeles are not the only cities with local laws and ordinances that provide additional limitations on employers.
The coalition also maintains that there is no authority for the additional notice requirement prescribed in the regulations. Instead, the coalition recommends that the examples be removed to prevent confusion and potential misstatement of the local ordinances. The coalition suggests that the proposed regulation simply state: “Employers may also be subject to local laws or city ordinances that provide additional limitations.”
The coalition reiterated its concerns that because of the newly added overly broad language, employers will not be able to ensure they are in compliance with the law.
In addition, AB 1008 requires five business days to respond to a notice that the employer intends to rescind an offer of employment due to a disqualifying conviction or convictions. The proposed regulations, however, provide two to four times that amount of time (10 calendar days in some instances and 20 calendar days in others). The Legislature actually struck the 10-day period to respond and reduced the amount to five days. Therefore, the coalition letter states, the proposed regulations explicitly contradict the intent of the Legislature by providing additional time to respond based on the type of notification delivery.
These conflicting time periods will only cause confusion and expose employers to frivolous litigation based on conflicting notice requirements. Furthermore, with these additional requirements, a position could remain unfilled for weeks, greatly delaying the hiring process and harming both the potential employee and the employer alike. Causing even more confusion, the proposed section bounces back and forth between using calendar days and business days. The problematic section should be revised to mirror the Government Code and simply provide the same five business day deadline to respond.
Baby Bonding Integration
The draft regulations integrate the NPLA — which requires employers with 20 or more employees to provide eligible employees with up to 12 weeks of unpaid, job-protected leave to bond with a new child — into the existing California Family Rights Act (CFRA). The CFRA also provides for baby-bonding leave, but applies to employers with 50 or more employees.
The proposed NPLA regulations would include:
- A change to the required CFRA poster;
- An explanation on the use of accrued time during NPLA leave;
- An explanation of the relationship between the NPLA, CFRA and other leaves, such as pregnancy disability leave; and
- Re-emphasis of the prohibition against retaliation for exercising the right to take a protected leave of absence.
The coalition reiterated in its Nov. 7 letter that the proposed family and medical leave and pregnancy disability leave notice should be revised.
Specifically, the coalition calls for providing additional clarity by separating each type of leave into its own section. CFRA leave should be its own section with employer eligibility and employee eligibility discussed separately. Then, NPLA leave should be its own section where employer and employee eligibility again are discussed separately. Although the council did make an edit to this section, the coalition wants the affected subsection to read: “even if the number of employees within the relevant 75-mile radius falls below 20 employees for the purposes of NPLA, or 50 employees for purposes of CFRA” to ensure clarity.
Separating the discussions by type of leave will provide clarity where an employer is a “covered employer,” but the employee is not eligible for leave. Expressly stating in the notice requirement when NPLA applies versus when CFRA applies will benefit the employee and the employer. In addition, the coalition recommends using a check-the-box approach to simplify the notice for employers and employees, making these provisions even clearer.
The coalition remains concerned with the regulations because there is no mention of whether leave under NPLA has to be taken continuously. The coalition’s letter states that the FEHC does not have the statutory authority to take interpretative liberty with the affected code and the regulation goes beyond the requirements of the NPLA. The coalition urges that this section specify the difference between CFRA and NPLA regarding the continuity of leave in order to prevent confusion.
The council may still adopt the draft regulations as proposed, or if it makes changes to the proposed text, it must make the modifications available for additional public comment.
For more information on the proposed regulations, visit the FEHC’s website.