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April / May 2016

New laws challenge hiring, paying employees By Holly Culhane


rom the beginning of the hiring process, through the issuance of pay checks and all the way through separation, California employers are under increasing scrutiny. Laws are sweeping the nation that address growing concerns over pay inequities and alleged discrimiHolly Culhane natory practices. Receiving a lot of publicity these days is the spreading “Ban the Box” campaign, which proposes to prevent employers from asking job applicants about their criminal histories – or running background checks – until applicants are given conditional offers of employment. The reasoning is that applicants accused or convicted of even minor crimes may be disqualified from consideration before hiring processes begin. And with a disproportionate number of minorities falling into the criminal justice system, minority applicants are the most likely to be disqualified. Hundreds of cities and counties, and several states, including the State of California, have passed such bans. Similar laws are being considered by Congress. A compre-

hensive federal ban may be looming. Addressing situations in which women are paid less than their male colleagues, the Legislature passed and Gov. Jerry Brown signed into law California’s Fair Pay Act last year. It is considered to be the nation’s toughest pay equity law. In a nutshell, the act requires male and female employees who perform “substantially similar” work to receive equal pay, even if their job titles differ, or if they work in different offices for the same employers. For example, unless the employer can document widely different skills and responsibilities, a hotel’s housekeepers, who are generally women, should be paid the same as its janitors, who are generally male. Now California’s Legislative Women’s Caucus is proposing an extension of the Fair Pay Act. Caucus members recently introduced legislation that would ban employers from requiring job applicants to disclose their pay histories. The reasoning seems logical. If a woman, for example, is leaving a job in which she received lower pay than her male colleagues, she may be perpetuating an inequity if she is forced to disclose her pay history. Clearly the laws regarding hiring and paying workers are changing. Employers must act carefully and thoughtfully to protect themselves from legal challenges

Clearly the laws regarding hiring and paying workers are changing. Employers must act carefully and thoughtfully to protect themselves from legal challenges and to keep their workplaces equitable. and to keep their workplaces equitable. Assume the adopted and proposed law changes will affect you and your workers. Whether it’s the growing “Ban the Box” movement or the proposed law banning pay history disclosures, most likely these laws will be implemented at some point. Ask about criminal records and pay histories only if and when it is required in the hiring process. Understand California’s new Fair Pay Act. A significant feature of the act is that it places on the employer the burden of proving a man’s higher pay is based on factors other than gender bias. The act also protects employees from retaliation if they ask about pay disparities and discuss wages with their co-workers. Workers’ complaints can be taken to the state Division of Labor Standards Enforcement or to a superior court in the form of a lawsuit. A central feature of this new law is the

requirement that workers only have to allege that they are doing “substantially similar work” to claim they deserve equal pay. In the past, they had to prove they were doing “equal work.” That was a high bar to clear because such things as job titles and workplace locations could be used to justify pay differences. Audit your workplace. Review job titles, work requirements and pay schedules to ensure that differences are justified and can be defended in court. Consult an attorney and human resources specialist to help audit your workplace and adjust procedures. These new and pending hiring and pay requirements are complicated. The ambiguity of the “substantially similar work” standard is likely to trigger years of litigation. Prudent employers need to carefully navigate their businesses in these legally challenging times. Figure your workplace may be scrutinized and be prepared. It will pay to be proactive and take corrective steps now. – Holly Culhane is president of the Bakersfield-based human resources consulting firm P.A.S. Associates and P.A.S. Investigations. She can be contacted through her website and through the PAS Facebook page.

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Kern Business Journal April/May 2016  

Agricultural Issue

Kern Business Journal April/May 2016  

Agricultural Issue