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California Proposes New Regulations on Parent Leave and Criminal History Inquiries
Mar. 13 2018

California Proposes New Regulations on Parent Leave and Criminal History Inquiries

Topics: New Laws & Legislation

California’s Fair Employment and Housing Council (“FEHC”) has proposed new regulations (revised regulations, really) addressing the state’s new ban-the-box and parental leave laws.  The regulations are not yet final or in effect, but are being considered by the FEHC and likely will be adopted, potentially with some modifications based on input from public comments and public hearings in the near future, with the first hearing scheduled for April 4, 2018.

Ban the Box/Criminal History Inquiry Regulations

Employers will recall that last year, the FEHC adopted new regulations regarding the use of criminal history information in employment decisions.  Those regulations, which took effect July 1, 2017, discouraged bright line policies that bar employment for applicants with criminal convictions and instead encouraged employers to conduct an individualized assessment of the relationship between a criminal conviction and the job sought.  Then, later last year, AB 1008 was signed into law, prohibiting employers from inquiring about an applicant’s criminal history at any time before a conditional offer of employment is made, and setting forth a specific procedure employers must follow if they ultimately intend to deny employment based on criminal history.  The FEHC has now proposed revised criminal history regulations to reflect the state’s enactment of the ban-the-box law.

For the most part, the proposed regulations simply incorporate the requirements of AB 1008 and combine them with the pre-existing standards for using criminal conviction information in employment decisions.  However, the proposed regulations provide some clarifying guidance in a couple of areas.  First, under AB 1008, if an employer makes a preliminary decision to deny employment to an applicant based on criminal history information, the law provides that the employer must give the applicant written notice and at least 5 business days to respond before the employer makes a final decision regarding employment.  The proposed regulations clarify that the 5 business days runs from the applicant’s date of receipt of the notice.  The proposed regulations further provide, “If notice is transmitted through a format that does not provide a confirmation of receipt, such as a written notice mailed by an employer without tracking delivery enabled, the notice shall be deemed received five calendar days after the mailing is deposited for delivery for California addresses, ten calendar days after the mailing for addresses outside of California, and twenty calendar days after mailing for addresses outside of the United States.” 

Another area of clarification is on the subject of what type of information qualifies as evidence of rehabilitation or mitigating circumstances.  (AB 1008 provides that in response to a notice informing the applicant that the employer intends to deny employment based on a criminal conviction, the applicant may submit evidence challenging the accuracy of the conviction information and/or evidence of rehabilitation or mitigating circumstances.)  The proposed regulations provide that evidence of rehabilitation or mitigating circumstances may include (but is not necessarily limited to) “the length and consistency of employment history before and after the offense or conduct; the facts or circumstances surrounding the offense or conduct; and rehabilitation efforts such as education or training.”

Employers who wish to submit written comments regarding the proposed regulations may do so before April 4, 2018.

New Parental Leave Law Regulations

Employers will recall that last year, SB 63 was signed into law, expanding the universe of employers that are required to provide eligible employees with up to 12 weeks of unpaid leave for purposes of baby bonding.  Prior to SB 63 taking effect January 1 of this year, only employers with 50 or more employees were required to provide this leave, pursuant to the Family and Medical Leave Act (“FMLA”) and California Family Rights Act (“CFRA”).  SB 63 expanded the law to employers with 20-49 employees.  The FEHC has now proposed regulations governing the new parental leave law and its interaction with FMLA/CFRA.

Most saliently, the proposed regulations seek to clarify that employees are not eligible for leave under both the FMLA/CFRA and the New Parent Leave Act (“NPLA”) and that the NPLA only covers employees whose employers are not already covered by the FMLA/CFRA (and who have at least 20 employees).  The proposed regulations state:   

“If an employee is covered by CFRA Leave and FMLA Leave, then the employee is not also entitled to leave under the NPLA. Thus, for an eligible employee that is employed by an employer who directly employs 50 or more persons within any state of the United States, the District of Columbia or any territory or possession of the United States to perform services for a wage or salary (“covered employer”), the employee’s entitlement to leave for the birth, adoption, or foster care placement of the employee’s child or for the employee’s own serious health condition or that of their child, parent, or spouse comes from the CFRA and FMLA. If an Eligible employee is employed by an employer who directly employs 20 or more persons within any state of the United States, the District of Columbia or any territory or possession of the United States to perform services for a wage or salary (but less than 50 persons), the employee’s entitlement to leave for the birth, adoption, or foster care placement of the employee’s child comes from the NPLA and the employee is not entitled to other forms of leave provided by the CFRA and FMLA (e.g. leave for the employee’s own serious health condition or the serious health condition of the employee’s child, parent or spouse).”

While the regulation intends to be aimed at clarifying that an employer is not required to comply with both the FMLA/CFRA and the NPLA, the language is still in need of further clarification.  The current language says that the parental leave entitlement of an “eligible employee” who works for an employer with 50 or more employees is governed by the FMLA/CFRA and not the NPLA; and that the leave entitlements of an “eligible employee” who works for an employer with 20-49 employees is governed by the NPLA.  The issue that remains ambiguous arises where an employee works for an employer with 50 or more employees (hence, a covered employer under FMLA/CFRA) and the employee has at least 12 months of service and 1250 hours of service in the 12 months prior to the leave, but the employee does not work at a worksite where at least 50 employees are employed within 75 miles (but does work at a worksite where at least 20 employees are employed within 75 miles).  In this fact scenario, the employee would not be eligible for leave under FMLA/CFRA, but would be eligible under the NPLA (if the NPLA applied to the employee).  The proposed regulations should be modified to better clarify that this interpretation would be wrong and that employers covered by the FMLA/CFRA simply are not covered by the NPLA.

The proposed regulations also highlight a couple of important differences between leave rights under the FMLA/CFRA and the NPLA.  First, whereas under FMLA/CFRA, employers have rights to deny reinstatement to certain “key employees,” no such rights exist under the NPLA.  Second, whereas an employer can require an employee using FMLA/CFRA leave to use accrued paid time off/vacation during the otherwise unpaid portion of the leave, under the NPLA, the employee may elect (but cannot be required) to use such leave.  Apart from these issues, the proposed regulations adopt many of the same procedures and standards governing CFRA leave for use in handling leave requests under the NPLA.

Employers that wish to provide written comments may do so between now and April 4.  The proposed regulations are available here.

Details on submitting written comments and on the upcoming public hearing are available here

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Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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