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California’s Resilience Roadmap and Guidance to Employers for Stage Two Reopening

18 May

By Susan E. Groff, Cepideh Roufougar, Jonathan A. Siegel, Peter M. Waneis and Cecilie E. Read May 11, 2020

Appellate CourtCalifornia Governor Gavin Newsom has announced a plan to allow the limited reopening of some businesses beyond those in the category of essential critical infrastructure. This limited reopening is part of the “Resilience Roadmap” for California, the multi-phase plan to modify the statewide stay-at-home Order, originally issued on March 19, 2020, in response to the COVID-19 pandemic.

On May 4, 2020, the Governor issued an executive order directing Californians to continue to obey state public health directives. It also indicated the state was moving toward Stage Two, which would allow the reopening of “lower-risk businesses and spaces.”

The State Public Health Officer was directed to establish criteria and procedures to determine whether and how local jurisdictions may implement public health measures that depart from the statewide directives. This means that some counties and localities may be permitted to reopen businesses more quickly if certain benchmarks are met.

The following must be achieved by counties in order to move beyond the initial parts of Stage Two:

  1. No more than one new COVID-19 case per 10,000 people for 14 days.
  2. No COVID-19 deaths in the county for 14 days.
  3. Testing capacity to conduct 1.5 daily tests per 1,000 residents.
  4. At least 15 contact tracers per 100,000 residents.
  5. Ability to temporarily house at least 15 percent of county residents experiencing homelessness.
  6. Ability to accommodate at least a 35-percent surge in COVID-19 patients in local hospitals, in addition to usual care for non-COVID-19 patients.
  7. Skilled nursing facilities must have at least a two-week supply of personal protective equipment for workers. They also must have the ability to obtain more as supplies run low.

On May 7, the State Public Health Officer stated she would “progressively designate sectors, businesses, establishments, or activities that may reopen with certain modifications based on public health and safety needs.” She indicated she would be announcing these sectors and business on the state website roadmap site: https://covid19.ca.gov/roadmap/. In addition, she stated that to the extent such sectors are reopened, “Californians may leave their homes to work at, patronize, or otherwise engage with those businesses.”

Clothing stores, florists, bookstores, sporting goods stores, manufacturing businesses, and warehouse facilities were allowed to reopen on May 8, as the state moves into the first part of Stage Two. Retail establishments were limited to curbside pickup only.

In conjunction with allowing these reopenings, the state has issued guidance for businesses to follow if permitted to open. Before reopening, all facilities must:

  1. Perform a detailed risk assessment and implement a site-specific protection plan.
  2. Train employees on how to limit the spread of COVID-19, including how to screen themselves for symptoms and stay home if they have symptoms.
  3. Implement individual control measures and screenings.
  4. Implement disinfecting protocols.
  5. Implement physical distancing guidelines.

In addition to these general mandates, the state issued industry-specific guidance and checklists. Currently, the state has issued industry-specific guidance for the following sectors:

  1. Agriculture and livestock
  2. Auto dealerships
  3. Childcare
  4. Communication infrastructure
  5. Construction
  6. Delivery services
  7. Energy and utilities
  8. Food packing
  9. Hotels and lodging
  10. Life sciences
  11. Logistics and warehousing facilities
  12. Manufacturing
  13. Mining and logging
  14. Office workspaces
  15. Ports
  16. Public transit and intercity passenger rail
  17. Real estate transaction
  18. Retail

The Resilience Roadmap provides that these guidelines are to assist with ensuring a safer environment for workers and customers. Businesses may use effective alternative or innovative methods to build upon the guidelines.

Businesses looking to reopen should review any industry-specific guidance, prepare their reopening plans, and post any applicable checklist in the workplace in order to show customers and employees the business is actively working to help reduce and prevent the risk of spread of COVID-19.

As employers in Stage Two determine how to comply with recommendations and requirements under the state guidance, business owners should also review city and county shelter-in-place orders. Many county and city orders are currently more restrictive than the state’s amended order. Following issuance of the state’s guidance, many counties reiterated the requirements under their orders. In addition, many counties and cities have their own social distancing protocols for businesses that are open. Businesses seeking to reopen should ensure compliance with both state and local requirements.

As California continues to follow its roadmap, employers should monitor guidance and best practices to ensure safety for their employees.

Cal/OSHA Updates Its COVID-19 IIPP Guidance

By: Thomas B. Song Carothers DiSante & Freudenberger LLP © 2020

Cal New Update

Yesterday, Cal/OSHA greatly expanded its IIPP guidance pertaining to the hazard of COVID-19 in the workplace.  Employers who have not reviewed and updated their IIPPs to address COVID-19 should do so now.

Prior to yesterday, Cal/OSHA’s only guidance concerning IIPPs in relation to COVID-19 consisted of a general statement/reminder that employers are required to have an IIPP to protect employees from workplace hazards and that employers should determine if COVID-19 is a hazard in their workplace.  If so, employers must implement measures to prevent or reduce infection hazards and provide training on those measures.

Yesterday, Cal/OSHA updated its guidance on COVID-19 and IIPPs.  That guidance now states that, “For most California workplaces, adopting changes to their IIPP is mandatory since COVID-19 is widespread in the community.”  (Emphasis added.)

Cal/OSHA replaced their previous general guidance (consisting of two bullet points) with an extensive list of particular “infection prevention measures” and training topics.  Cal/OSHA specifically states to “include [those] infection prevention measures in a written IIPP when applicable to the workplace.”

However, since almost every listed infection prevention measure applies to most workplaces, does that mean that employers are now required physically to write down every measure in their IIPPs?  The most likely answer is “No.”  The required minimum elements of a written IIPP are already governed under Title 8, CCR 3203(a).  Therefore, without formal or emergency rule making (and appropriate notice and comment periods for the public), Cal/OSHA cannot, sua sponte add additional written requirements to the IIPP standard.

However, just because OSHA may not be able to cite you directly for failing to include all their applicable precautions in your written IIPP, that does not mean they cannot find other ways to find your IIPP ineffective.  In other words, it is assumed that should an employer’s IIPP be under review – for a COVID-related issue or otherwise – Cal/OSHA will use their listed infection prevention measures as a benchmark to gauge the effectiveness of an IIPP as it relates to COVID-19.

Therefore, while employers may not legally be required to list every single applicable Ca/OSHA precaution directly in their written IIPPs, it makes good sense to do so, or at a minimum, to be sure that you are actually implementing these precautions in the workplace.

Limits to Conducting Background Checks on Job Applicants

May 8 2020 – HRWatchdog

Background Checks

Several disclosure requirements and procedural steps are incumbent on both employers and the investigative consumer reporting agencies.

My company uses a background check company to conduct background checks on our applicants. Recently, I received a report that included a felony conviction from 1995. I thought there was a limit on how far back we could look for criminal convictions. Can I consider this conviction in making my hiring decision?

There are both state and federal laws that restrict how a background check can be conducted, and what type of information can be provided in a background check report.

The federal Fair Credit Reporting Act (FCRA) and the California Investigative Consumer Reporting Agencies Act (ICRAA) both restrict what background check companies (referred to in the statutes as “investigative consumer reporting agencies”) and prospective employers can and must do with regards to information on individuals who are applying for jobs.

Disclosure Requirements

There are a number of disclosure requirements and procedural steps incumbent on both employers and the investigative consumer reporting agencies.

In addition, and most relevant to your question, the ICRAA limits the type of information the investigative consumer reporting agency can provide to the prospective employer.

With regards to records of arrest, indictment or conviction of a crime, the investigative consumer reporting agency may provide information that is no more than seven years from the date of “disposition, release, or parole” (California Civil Code Section 1786.18(a)(7)).

Timing

In your particular situation, although the conviction is from 1995, the investigative consumer reporting agency may be legally entitled to provide you the information if the applicant was released from prison within the last seven years.

You will need some additional information from the background check company to be certain that it was legally authorized to provide you with that information.

The statutes don’t specifically prohibit an employer from considering information that is beyond the limits of what an investigative consumer reporting agency is allowed to provide; however, before considering such information in making your hiring decision, we would suggest consulting your own legal counsel.

CA Minimum Wage Hikes Begin July 1st

25 Jun
June-Wages Up
Employers’ Posters Must Conform With July 1, 2019 Minimum Wage Rate Increases

California local cities and counties continue to pass minimum wage ordinances and other employment laws relating to paid sick leave and criminal background checks. On July 1, 2019, several local minimum wage rates also increase, as will two new local minimum wage ordinances will be required.

City & County Minimum Wage Increases Start July 1st
  • Berkeley: $15.59/hour.
  • Emeryville: $16.30/hour for businesses of all sizes (except for Small Independent Restaurants).
  • City of Los Angeles: $14.25/hour for employers with 26+ employees; $13.25/hour for employers with 25 or fewer employees.
  • County of Los Angeles (unincorporated areas only): $14.25/hour for employers with 26 or more employees; $13.25/hour for employers with 25 or fewer employees.
  • Malibu: $14.25/hour for employers with 26 or more employees; $13.25/hour for employers with 25 or fewer employees.
  • Milpitas: $15/hour.
  • Pasadena: $14.25/hour for employers with 26 or more employees; $13.25/hour for employers with 25 or fewer employees.
  • San Francisco: $15.59/hour.
  • San Leandro: $15/hour.
  • Santa Monica: $14.25/hour for employers with 26 or more employees; $13.25/hour for employers with 25 or fewer employees.
    Note: Eligibility rules may vary based on different locations.
Two New Minimum Wage Ordinances Start July 1st
  • Alameda: $13.50/hour.
  • Fremont: $13.50/hour for employers with 26 or more employees; employers with 25 or fewer employees will continue to pay the state minimum wage rate until July 1, 2020.

Employees classified under the executive, administrative or professional exemptions must earn a minimum monthly salary of no less than two times the state minimum wage for full-time employment. For employers with 26+ employees, the required monthly salary is $4,160 per month, and employers with less than 25 employees, the required monthly salary is $3,813.33 per month.

The exempt salary test is based on the California minimum wage; it increases every year on January 1 as the state minimum wage increases (the salary test is not affected, however, by any applicable local minimum wage.) The exempt salary test is calculated using the current California minimum wage, even if an employer’s nonexempt employees are entitled to receive a higher minimum wage under a local ordinance.

Raise for Nonexempt Employees
If you have nonexempt employees working in any of the following localities, the required local hourly minimum wage will increase on July 1, 2019 as follows:

Northern California

  • Alameda: $13.50.
  • Berkeley: $15.59.
  • Emeryville: $15 for “small independent restaurants”; $16.30 for all other employers.
  • Fremont: $13.50 for employers with 26+ employees; 25 or less employees subject to California minimum wage).
  • Milpitas: $15.
  • San Francisco: $15.59.
  • San Leandro: $14.
  • Southern California
    City of Los Angeles, County of Los Angeles (unincorporated areas only), Malibu, Pasadena, and Santa Monica: $14.25 for employers with 26+ employees; and $13.25 for less than 25 employees.

    Updated Minimum Wage Increase Workplace Posters Required for
    LA, San Francisco & Santa Monica – Increases in the Local Minimum Wage

    In May 2019, the Los Angeles Office of Wage Standards Ordinance updated the city’s minimum wage notice to reflect the increases that are effective July 1, 2019 as follows: $13.25 per hour for employers with 25 or fewer employees; and $14.25 per hour for employers with 26 or more employees. This notice must be conspicuously posted in any workplace or job site. Violators are subject to penalties. See the Notice

    Beginning July 1, 2019, the San Francisco Office of Labor Standards Enforcement updated its San Francisco minimum wage notice to reflect the city and county’s minimum wage increase to $15.59 per hour. This notice must be posted in the workplace where employees can easily read it. Failure to post this notice may result in penalties. See the Notice

    In April 2019, the City of Santa Monica updated mandatory workplace posters to reflect the following wage increases effective July 1, 2019 to June 30, 2020. The City of Santa Monica minimum wages increase to $13.25/hour for small businesses, and $14.25/hour for large businesses. Hotel worker living wage increases to $16.63/hour. Also City’s paid sick leave notice and service charge law notice. Failure to post these notices subjects employers to penalties. See the Packet

    The CalWorkSafety Consultants Are Here to Help Clients
    With all Questions or Concerns About These New Notices.
    Contact Us to Help You Sort Out Your Options

    FTC and EEOC Agree on Background Check Guidelines

    1 Apr

    On March 10, 2014, the Federal Trade Commission (“FTC”) and the Equal Employment Opportunity Commission (“EEOC”) jointly issued two short guides on the use of background checks in hiring and personnel decisions.

    Generally speaking, these guides do not break new ground, but serve more as reminders to employers of their existing obligations under federal law when inquiring into or otherwise considering an applicant’s or employee’s background information. I have attached information about these new guides for you.

    If you have questions about procedures for hiring new employees or “on-boarding” (the important first weeks of getting new employees established as productive members of your team), let me know and our team of human resources professionals can assist you

    Don Dressler. Consultant and Attorney at Law
    Ph: 949-533-3742 – websites: http://www.dondressler.com” and http://www.calworksafety.com

    Pre-Employment Background Checks and Safety

    14 Jul

    Does your company conduct background checks on candidates you are considering to add as new employees? Have you considered the safety reasons to do so?

    At a time when the Federal Equal Employment Opportunity Commission has recently issued “Enforcement Guidelines for Arrest and Conviction Records in Employment”, many employers are rethinking the use of criminal background checks as part of their hiring process. Continue reading