The new year brought two significant employment laws that expand parental leave rights, but limit employers’ ability to consider applicants’ conviction history. California’s Fair Employment and Housing Council (FEHC) recently proposed regulations to interpret these new laws. The new regulations may clarify or even expand employers’ compliance obligations.
The New Parent Leave Act
The California Family Rights Act (CFRA) has long required public and private employers with at least 50 employees to provide eligible employees up to 12 weeks of unpaid leave in a 12-month period for baby bonding purposes.
Effective January 1 2018, the New Parent Leave Act (NPLA) requires private employers of between 20 and 49 employees to provide 12 weeks of unpaid leave. The leave may be taken within one year of the child’s birth, adoption, or foster care placement. Baby-bonding leave rights under the CFRA and the NPLA are similar, but not identical.
Proposed NPLA Regulations
The FEHC’s proposed regulations, if finalized and promulgated, would clarify the covered employers’ obligations under NPLA. One key provision makes a clear distinction between the NPLA and the CFRA (and the CFRA’s federal counterpart, the Family and Medical Leave Act (FMLA)). Employers fall under either set of statutory schemes, but not both. That is, employers with more than 50 employees must follow the CFRA and the FMLA parental leave requirements, but not the NPLA’s. Conversely, employers with fewer than 50 employees (but at least 20) must follow the NPLA, but not the CFRA.
The proposed regulations also provide that defenses applicable under the CFRA do not apply to the NPLA. Under the CFRA, for example, employers may refuse to reinstate “key employees” (certain top-earning salaried employees) upon their return from leave, if the employer can demonstrate substantial economic injury to the business. Under the proposed regulations, this “key employee” defense is inapplicable under the NPLA. As such, even managers that hold positions impossible to temporarily replace have the right to take baby bonding leave under the NPLA.
The proposed regulations also explain employers’ right to require an employee to use accrued time off during NPLA bonding leave, which differs from the treatment of paid leave under the CFRA. Under both CFRA and NPLA, employees have the right to apply accrued, but unused, time off to their leave periods. The CFRA permits employers to require employees to use accrued time off during covered CFRA leave. The newly proposed regulations state covered employers cannot mandate use of paid time under the NPLA. So, for example, if an employee has four weeks of vacation time available, the employee may take NPLA bonding leave, and later use his or her vacation time. For more on the NPLA, please see our Daily Recorder column published on January 30, 2018.
As of January 2018, it is unlawful for California employers to seek job applicants’ criminal conviction history before making a conditional offer of employment. Although certain exceptions apply, such as jobs that require criminal background checks by law, those exceptions are limited.
Even after a conditional job offer, an employer must follow a strict procedure to rescind a job offer upon learning of a criminal conviction through a background check. The employer must make an individualized assessment that the conviction has a direct and adverse relationship to the intended job duties. The employer then must provide the applicant written notice of its intent to withdraw the offer. The notice gives the applicant the opportunity to provide evidence challenging the factual accuracy of the conviction or of rehabilitation or mitigating circumstances. Compliance with the statute will slow the hiring process for employers conducting pre-employment criminal background checks.
Proposed Conviction History Regulations
The FEHC’s proposed regulations clarify the types of information an applicant may provide to show rehabilitation or mitigating circumstances. Applicants would be able to provide the prospective employer with a wide array of information, such as the length and consistency of employment history before or after the criminal offense, the circumstances surrounding the offense, and rehabilitation efforts such as education or training.
The proposed regulations also prescribes that an applicant has five business days to respond to the employer’s notification that it intends to rescind a job offer. And the five business days run from the applicant’s receipt of the notice. That deadline increases to 10 days if the notice is sent by regular mail to a California-based applicant.
Tips for Employers
The NPLA and “Ban the Box” statutes are in effect and require compliance now. Covered employers should have policies, procedures and training in place, which may be subject to revision when the final regulations are issued. Because proposed regulations may be modified before they are finalized, it pays to monitor the FEHC’s website (and our blog at https://shawlawgroup.com/blog/) for updates during the coming weeks.