Contributed by Lauren Gus, Senior Director of Human Resources at Sterling Talent Solutions
Laws that directly impact a company’s workforce are growing across the country and California has led the way in driving change for workers through new regulations. Last year, California Governor Jerry Brown signed into law a plethora of bills pertaining to labor and employment issues, causing HR managers in California to significantly alter the way they have managed traditional HR processes. Some have required fundamental shifts in workforce behavior unlike anything the industry has seen before.
The beginning of 2018 saw significant change – with many of these laws going into effect January 1st – marking a new era in HR compliance on a variety of headline-grabbing workplace topics. HR professionals cannot be complacent in their managing of these new rules and regulations, as violations can be both severe and costly.
How can HR departments – particularly those in California, who are paving the way for other states – stay abreast of and comply with these new regulations?
Let’s look at three of the regulations that rocked the industry and explore what HR managers can do to stay compliant and keep their workforce well-informed.
On January 1st, recreational marijuana became legal in the state of California – the sixth state to allow recreational use of marijuana after Colorado, Washington, Oregon, Alaska and Nevada. As medical marijuana becomes increasingly accepted in the workplace, HR professionals now have had to consider how recreational marijuana will impact employee productivity and workplace safety, drug screening and the no-drug tolerance policies that had been in place.
It is important for both employers and employees to understand that the legalization of marijuana law in California does not impact employers’ rights to maintain and enforce drug-free workplace policies and drug testing policies. Despite legalization of marijuana in many states for both recreational and medical use, marijuana is still an illegal drug under federal law. As such, employers still have the right to maintain a drug free workplace, and the right to prohibit use by employees.
Having a well-defined prescription drug testing policy in place is essential, and now is the time to revisit the policy as recreational marijuana usage is on the rise. Some key considerations for a well-defined drug policy include:
• Transparency – State the prohibited behaviors and explain the company drug testing policy including how it is done, when and how often. Explain the consequences of policy violations and take measures based on actions rather than drug test results.
• Employee Education – Train employees of the company’s drug policy and procedures. Employees should know the consequences of use, refusal to take the drug test and what a positive drug test reflects on their hiring.
• Supervisor Training – Supervisors should be trained on the workplace policy for recreational marijuana drug use and any procedures that pertain to the drug policy.
Managers should also know the signs and symptoms of recreational marijuana misuse.
• Employee Assistance Program – If an employee is using prescribed medication, provide the employee with the job description and a standard form for the employee’s treating physician to assess the ability of the employee to perform the essential job duties while taking the prescribed medication. This can confirm the ability or inability of the employee to perform the essential job functions.
Ban the Box
California also implemented a Ban the Box law, effective across the state, on January 1st. This growing national trend has had many companies thinking about removing the criminal history question from early applications and being more open to hiring from untapped labor pools that give workers a second chance.
Granted, this regulation was not entirely unexpected. Sterling Talent Solutions’ 2017 Background Screening Trend Survey found that less than half (48%) of organizations asked candidates to check “the box” early on in the application or interview process if they had been convicted of a crime. This is compared to 76% of companies reporting that their job application included questions about a candidate’s prior criminal history in 2015, showing a trend that more and more companies are adopting policies to comply with the Ban the Box legislation.
Ban the Box laws are complex and can vary significantly depending on an employer’s location, the type of company it is and the size of its employee base. It is important for HR managers to work closely with their legal and compliance departments to ensure they are implementing Ban the Box laws correctly. These laws can be especially tricky for companies operating in multiple states, so being in lockstep with legal and compliance partners is key.
Salary History Inquiry Ban
To round out a trio of regulations that changed the HR landscape, California implemented the salary history inquiry ban on January 1st which prohibits employers from asking about a job applicant’s salary history during the hiring process. The intent of the salary ban is to close the wage gap that exists between women and men, with many states and organizations implementing the law and more expected throughout the year.
An employer could be held liable if they ask about salary history when interviewing, extending an offer or when deciding how much to pay applicants. If an applicant voluntarily provides their salary history, an employer may consider the information but should do so with great care to avoid any hint of impropriety which could lead to a potential claim.
Due to the growing trend of local and state legislatures enacting similar laws, employers who have offices in multiple states should consider making company-wide changes regarding salary history inquiries during the hiring process. Employers should consult with legal counsel to review and revise all hiring documents, employment applications, background check forms or any other forms used during the hiring process to ensure that there are no inquiries regarding salary history. Importantly, HR teams, recruiters and hiring managers who conduct interviews of applicants will need to be trained on the implications of the new laws.
With California leading the charge in reforming workplace laws, we can expect these groundbreaking regulations to gain continued traction throughout 2018. Working together with legal and compliance, HR professionals should keep a close eye on the state of California’s progressive actions, as similar regulations could impact their state, and organizations, nationally.
About Lauren Gus
Lauren joined the Sterling team through the acquisition of EmployeeScreenIQ and shortly after led the HR integration for the merger of SterlingBackcheck and TalentWise. As Senior Director, Human Resources, she lead a team of HR Business Partners across multiple locations. Her team partners with Sterling’s leaders on organizational design, talent assessment, succession planning, employee engagement, and employee relations. Learn more about Lauren Gus.
Interested in PHRca?
Add to your HR career portfolio with the Professional in Human Resources – California® (PHRca®) from HR Certification Institute® (HRCI®). The PHRca demonstrates your mastery of the laws, regulations and HR management practices unique to the state of California. The PHRca is for professionals who either practice in California or are responsible for human resource management in California. You do not have to be located in California to earn a PHRca. Many certification holders add the PHRca to their other HRCI credentials.
Check out one of our upcoming courses:
5/21: PHRca 6-Week Cert Prep Course (Online): Mondays & Wednesdays