California Updates Criminal History Regulations
California’s Fair Employment and Housing Act (FEHA) regulations will be updated as of October 1, 2023. The updated regulations govern how employers with five or more employees can use criminal history information when making employment decisions. Here are highlights of the changes:
- The definition of “applicant” will now include existing employees that have applied for or expressed interest in a different position with the employer or whose criminal histories are reviewed because of a change in ownership, management, policy, or practice.
- Employers can’t say in job postings, on applications, or in other hiring materials that individuals with criminal histories won’t be hired. This includes statements like “no felons” or “must have a clean record.”
- If an applicant voluntarily discloses their criminal history, employers can’t consider that information until after a conditional job offer is made (assuming the record can be considered at all).
- The fact that a licensing, regulatory, or government agency board has licensed an applicant—despite their criminal history—should be considered strong evidence that their criminal history is not grounds for disqualification from that type of job.
- Employers can but don’t have to, use the sample notices provided by the California Civil Rights Department when communicating with applicants about employment decisions based on criminal history.
If you are required by law to conduct criminal background checks, or if you regularly use criminal history information in making employment decisions, Resourcing Edge recommends that you review the changes in full on the California’s Civil Rights Department website.
California Sick Leave Changes Effective January 1, 2024
California was on the cutting edge of employee sick leave benefits when it rolled out Paid Sick Leave in 2015, but the 24 hours provided soon looked meager compared to the amounts offered by other states and localities. Now, eight years in, the state has increased the three-day benefit to a five-day benefit. Beginning January 1, 2024, employees must be able to use up to 40 hours or five days per year of paid sick leave.
Accrual Methods
The standard accrual rate of 1 hour per 30 hours worked remains the same. Employers that use some other method of accrual must allow employees to earn at least 24 hours by their 120th day of employment, or in each calendar year or other 12-month period (same as before), and all 40 hours by their 200th day of employment, or in each calendar year or other 12-month period. (Note that 24 hours in 120 days and 40 hours in 200 days will be earned at the same rate.)
Lump Sum Methods
Employers that provide leave in a lump sum need to provide at least 24 hours or three days of sick leave to use no later than after an employee’s 120th day of employment (same as before) and all 40 hours or five days after their 200th day. This seems to open the door to providing 24 hours or three days of sick leave when the employee has completed their 120th day while withholding the remaining 16 hours or two days until the employee has completed their 200th day.
Of course, employers are still free to provide the full amount of leave up front and don’t need to provide it in two installments. They can also allow employees to use sick leave before completing 120 days of employment.
You still don’t have to allow carryover if providing the full amount of leave (i.e., 40 hours or five days) at the beginning of each year using the lump sum method. However, the law doesn’t allow you to avoid carryover if you decide to divvy up an employee’s lump sum leave allotment into 24 and then 16 hours (or any other combination that did not provide the full amount of leave at the start of the year).
Use Caps and Carryover
The yearly use cap is now 40 hours or five days instead of 24 hours or three days. The total (rolling) accrual cap is now 80 hours or 10 days instead of 48 hours or six days.
Preemption of Local Sick Leave Rules
The amended law includes preemption of certain provisions in local sick leave ordinances. This means that localities will need to follow the state law exactly on those particular issues—they will not be allowed to write (or enforce) more restrictive or more employee-friendly rules. Preemption applies to the following provisions:
- End of employment payout of employees’ unused sick leave
- Employer advancement of (unaccrued) sick days to employees
- Employer written notice requirement regarding available leave
- Rate of pay calculations for employees’ actual sick leave taken
- Employee notification for foreseeable and unforeseeable use of sick leave
- Timing of payment to employees for paid sick leave used
Thankfully, localities with their own sick leave laws have so far been almost totally aligned—or at least not in conflict—with the state on these topics. Employers in these locations shouldn’t have to overhaul their sick leave policies aside from ensuring that they offer as many hours as now required by the state. Localities are not barred from writing and enforcing more employee-friendly sick leave rules on matters not in this list, such as total number of hours accrued or acceptable reasons to use leave.
Action Items
- Update your sick leave policies to comply with the increase in hours.
- Ensure that localities with their own sick leave laws offer as many hours as now required by the state. Localities are not barred fromwriting and enforcing more employee-friendly sick leave rules on matters not in this list, such as total number of hours accrued or acceptable reasons to use leave.
- If you use bundled policies (e.g., paid time off or flexible time off that includes both sick and vacation time), ensure that those are also at least as generous as the updated sick leave requirements.
- Distribute updated policies to employees by January 1, 2024.
- Resourcing Edge will keep an eye out for an updated Paid Sick Leave poster from the California Department of Industrial Relations.
Noncompetes are Void Regardless of When and Where They’re Signed
In California, and with limited exceptions, contracts restraining an employee from lawfully working or doing any kind of business (aka noncompete agreements and restrictive covenants) are generally void and unenforceable. Effective January 1, 2024, new legislation will make them void and unenforceable no matter when or where they’re signed. For instance, current and former employers won’t be able to enforce a noncompete agreement even if it was signed and the employment was maintained outside California. Employers also won’t be allowed to enter into a contract with a prospective or current employee that has a noncompete provision or restrictive covenant, and to do so will be a civil violation.
California’s public policy and law prohibiting trade restraints takes precedence over other state laws when an employee seeks employment in California, even if the employee signed the noncompete while living outside of California and working for a non-California employer.
Reproductive Loss Leave Enacted
Effective January 1, 2024, employers with five or more paid employees must grant their employees up to five days of reproductive loss leave following a reproductive loss event (loss), which is the day—or for a multiple-day event, the final day—of a failed adoption, failed surrogacy, miscarriage, stillbirth, or unsuccessful assisted reproduction. To be covered by the law, employees must have worked for their employer for at least 30 days prior to taking the leave. Leave is limited to no more than 20 days within a 12-month period, even if an employee experiences more than one loss within that time.
Leave can be taken on nonconsecutive days but must be taken within three months of the employee’s loss. Employees that take any other leave—prior to or immediately following a loss—must complete their reproductive loss leave within three months of the other leave ending.
Reproductive loss leave must be taken in accordance with any existing, applicable employer leave policy. If no such policy exists, the reproductive loss leave may be unpaid. Employees may use vacation, personal leave, accrued and available sick leave, or compensatory time off that is available to them so they can be paid during the otherwise unpaid leave.
Employers must maintain the confidentiality of any employee requesting reproductive loss leave and can’t retaliate against them for requesting the leave, taking the leave, or exercising other rights under the law.
FEHA Protects Against Prior Cannabis Use Discrimination
Effective January 1, 2024, the California Fair Employment and Housing Act (FEHA) protections against discrimination based on cannabis use will make it unlawful for employers to request information from an employee or applicant about their prior cannabis use. Additionally, employers that get information about an employee or applicant’s cannabis use through their criminal history can’t discriminate based on that past use unless otherwise permitted by state or federal law. However, employers may continue to ask about cannabis use for a federal background check.
