4 things every California employer should do before Jan. 1

By Dan Eaton

Dec. 25, 2017 6 AM PT

In exactly one week, 2018 begins. Those who manage California businesses should take the following steps during this shortened last workweek of the year.

Remove references to salary history and criminal convictions from employment applications

Starting Jan. 1, 2018, applications for employment in California may no longer ask applicants to disclose their criminal history or their salary history. The reason to “ban the box” asking whether an applicant has a criminal record is to avoid perpetuating the stigma of prior convictions and the premature disqualification of applicants who otherwise may have the right credentials for a particular job. The reason to ban discussion of an applicant’s prior salary, unless the applicant volunteers the information, is to avoid perpetuating past salary levels that may have been influenced by gender.

Employers should remove these inquiries from paper and online application forms. Employers also should instruct those who interview applicants, by phone or in person, not to solicit this information. The consequences for violating these new prohibitions are unclear. But no employer wants to be the first to find out.

Make sure employees doing equivalent work are receiving equivalent pay

A California employer is prohibited from paying men and women and whites and racial and ethnic minorities different wages for “substantially similar work” unless the employer can show that any differences are justified by a factor other than sex, race, or ethnicity. That imposes a duty on employers to ensure that any gaps are closed or justifiable.

In this space about a year ago, I predicted that a California court would issue a “major” ruling this year on these requirements of the state Fair Pay Act. It was the only one of the five predictions I made that was wrong. But several Fair Pay Act cases were filed this year in California trial courts, including against high profile California employers. Don’t make your workplace the one that belatedly fulfills my prediction.

Schedule sexual harassment training for your supervisors

California employers with 50 or more employers must provide “classroom or other effective interactive” training in the prevention and correction of sexual harassment no later than six months after an employee assumes, or is hired to perform, supervisory duties and to all supervisors every two years. Recent changes in this law require that the training cover general workplace bullying and harassment based on gender identity.

According to a recent story in the business section of The New York Times, the “most effective training, researchers say, is at least four hours, in person, interactive and tailored for the particular workplace – a restaurant’s training would differ from a law firm’s.”

With the intense recent attention to sexual harassment across industries, and given that California law imposes liability for sexual harassment even on employers with a single employee, the wise employer will go beyond the bare requirements of the training law. The state law itself underscores that it is only a “minimum” and does not discourage an employer from providing “longer, more frequent, or more elaborate” training to “meet its obligations to take all reasonable steps necessary to prevent and correct harassment and discrimination.” Training is not sufficient to address the persistent problem of workplace harassment, but it is necessary.

Update your employee handbook

Because every year brings new workplace laws, make it an annual practice to revise your handbook to reflect current law. Out-of-date policies may be used against your company if a dispute ripens into a lawsuit. The San Diego Society for Human Resource Management and the California Chamber of Commerce both provide their members with suggested handbook revisions each new year.

Have a great 2018, San Diego.

Dan Eaton is a partner with the San Diego law firm of Seltzer Caplan McMahon Vitek where his practice focuses on defending and advising employers. He also is an instructor at the San Diego State University Fowler College of Business where he teaches classes in business ethics and employment law. He may be reached at eaton@scmv.com. His Twitter handle is @DanEatonlaw.