Baker Hostetler's Employment & Labor Practice Team would like to bring to your attention the following recent changes to California laws affecting employer obligations and liabilities:
Effective January 1, 2012, an employer will only be permitted to obtain a consumer credit report regarding an employee or prospective employee for "employment purposes" if the employee or applicant holds or seeks one of the following:
In addition to complying with the existing notice requirements under California's Consumer Credit Reporting Agencies Act, the new law requires employers to identify which of the specific purposes listed above provides the basis for running the credit report.
As a related reminder, also effective January 1, 2012, an employer using an investigative consumer reporting agency to obtain an investigative consumer report regarding an applicant or employee must include in its disclosure to the "consumer" applicant or employee the website address of the investigative consumer reporting agency, or, if the agency has no website address, the telephone number of the agency, where the consumer may find information about the investigative reporting agency's privacy practices, including whether the consumer's personal information will be sent outside the United States or its territories.
Accordingly, employers who run credit reports on applicants and employees should update their policies and forms by year end to ensure they are seeking credit reports only in connection with the positions enumerated by this law and that they are providing the appropriate notices.
California has passed a law expanding the protections of the Unruh Civil Rights Act, the Fair Employment and Housing Act (FEHA) and other antidiscrimination provisions of California law to cover genetic information.
The new law defines "genetic information" as information that includes any of the following: (i) an individual's genetic tests; (ii) the genetic tests of family members of the individual; (iii) the manifestation of a disease or disorder in family members of the individual. "Genetic information" also includes any request for, or receipt of, genetic services -- or participation in clinical research that includes genetic services -- by an individual or any family member of the individual. "Genetic information" does not include information about the sex or age of any individual.
While the federal GINA's protections are confined to the misuse of genetic information in the employment and health insurance coverage context, California's law prohibits discrimination on the basis of genetic information in housing, state-operated, administered or funded programs, provision of emergency medical services, mortgage lending, life insurance coverage, public accommodations and licensing requirements.
California recently signed into law Senate Bill No. 117 which prohibits the state government from entering into contracts worth more than $100,000 with a business that discriminates based on the gender or sexual orientation of the spouse or domestic partner of an employee in providing employee benefits. The law protects couples married in 2008 when same-sex marriage was legal in California, same sex marriages that occurred in other states, as well persons who have filed a declaration of domestic partnership with the California Secretary of State.
Under the new law, the requirement applies to the contractor's operations both within the state as well as elsewhere in the United States where work related to the state contract is being performed. The law allows the requirement to be waived under certain circumstances, including if the contract is necessary to respond to an emergency for which no entity that complies is capable of responding. Further, if the cost of providing the benefit is more for a same-sex partner/spouse, the contractor may require the employee to pay the additional cost.
Under a new amendment to California Labor Code Section 1720.4, the volunteer exception covering volunteers, volunteer coordinators and work performed by California Conservation Corps or by Community Conservation Corps has been extended from January 1, 2012, to January 1, 2017. The extension means that at least until January 1, 2017, volunteers working on public work projects such as construction, alteration, demolition, installation or repair work performed under contract and paid for in whole or in part out of public funds, will not be required to be paid the prevailing rate of per diem wages generally required to be paid to public work project workers.
Please contact any member of our Employment & Labor Practice Team with questions regarding how any of these may impact your business.
Authorship Credit: Margaret Rosenthal, Sabrina Shadi, Ellen Shadur, Nancy Inesta, Dawn Kennedy, Alastair Gamble and Morvareed Salehpour
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