Recap of the Employment Law Update – January 26, 2017
By Tyler Jensen, SPHR, PHRca, SHRM-SCP
Contact Tyler at tjensen@sdeahr.org
SDEA’s 37th Annual Employment Law Update (ELU) took place on January 26th, 2017, and was filled with important updates from three of San Diego’s most dynamic and successful Labor and Employment Law attorneys, Chris Olmsted, Rich Paul and Lonny Zilberman. From an “HR Geek” perspective, I left with a clear idea of what to expect in 2017, 2018 and beyond relating to employment law, legislative actions and updates in case law.
Here are some of the key takeaways from the ELU:
Based upon 2016 actions and trends, watch for the following in 2017:
- Jury trials are a “coin toss.” Stay out of court as much as possible. When complaints become lawsuits, juries continue increasing awards to employees.
- Thorough investigations are an employer’s first and best defense. If you or your team regularly find yourselves favoring the company point of view, seek outside assistance with investigations.
- Discrimination claims are on the rise, and California continues to expand protected categories. Specifically, listen for claims of discrimination related to age, disability, accommodation, gender (any/all) and all forms of sexual harassment and hostile workplace.
- Retaliation claims continue to increase as do the plaintiff awards.
- Expansion of California’s Equal Pay Act to include race and ethnicity as well as gender is a signal for employers to prepare for future action.
- Expect this to become a “hot button” issue; salary history is no longer a “bona fide factor” in determining appropriate salary at hire AND for similarly situated internal employees, ie. justify why your janitors make more than your maids.
- Train managers, leaders and executives on Equal Pay Act requirements and burdens.
- Consider appointing an Equal Pay Act point person as an internal watch person.
- Reporting for Affirmative Action employers will begin in 2018—prepare now. Review similarly situated employees, understand differences in pay, justify internally what you can, and correct what you cannot justify as a preventative measure.
- Prohibitions regarding Criminal History Inquiries for applicants continue to expand. Check applications, background investigation requests and other requests to ensure compliance. Where inquiries are appropriate, they are appropriate after a formal job offer (sequence of events remains an issue of awareness.)
- Remember the EEOC warned employers against blanket prohibitions of past convictions due to disparate impact a few years ago.
- Existing laws and rules prohibit inquiries or consideration of arrest records, diversions, dismissals and misdemeanor marijuana convictions more than two years ago.
- Now in 2017, inquiries into or findings revealing juvenile conviction records are prohibited from consideration.
- Expect the “Ban the Box,” meaning asking about criminal history, to continue – possibly expanding statewide.
- Check “Zero Tolerance Policies” in handbooks and other written policies. Rich Paul provided many examples where these and other policies were judged unlawful including:
- Confidentiality rules
- Employee Conduct rules
- Rules restricting employees speaking to media
- Use of company logo
- Photography, recordings and personal electronic devices (including smartphones)
- Restrictions on leaving work, being absent from work and automatic dismissal/ job abandonment
- Conflict of Interest rules
For those who were not able to attend the Employment Law Update, SDEA is now offering the Employment Law Update Program book for sale electronically and as a hard copy. The Program is 146 pages in length and includes all materials presented by attorneys Chris Olmsted, Rich Paul and Lonny Zilberman. The book and the electronic version are available for $30 each, or $45 for a set of both the book and the electronic copy. To request your copy, call 858-505-0024 or email info@sdeahr.org.
Even more satisfying for my “HR Geek” is the second half of the book: 60 pages of case notes and rulings on subjects referenced by the presenters. This will be on my required reading list for a few months – make sure it is on your reading list too! And, as always, we are here to offer HR consulting services when you have questions or are in need of a trusted HR advisor. You can reach us at at 858-505-0024 or via email at info@sdeahr.org.