A Couple of New California Employment Laws that Require Attention

Here are two recently signed laws that will go into effect 1/1/17.

First, the Legislature re-drafted the Labor Code provision that prohibits asking applicants about arrests, convictions that have been expunged, or about misdemeanor marijuana possession charges more than 2 years old, etc.

The new bill, numbered AB 1843 (here) makes it unlawful to ask applicants to disclose

an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while the person was subject to the process and jurisdiction of juvenile court law.

Is a "court disposition" a conviction?  Don't know.  But the statute also cryptically says:

For purposes of this section, “conviction” does not include, and shall not be construed to include, any adjudication by a juvenile court or any other court order or action taken with respect to a person who is under the process and jurisdiction of the juvenile court law.

There are also special provisions regarding conviction / arrest inquiries applicable to public sector police / peace officer applicants, the health care industry, and certain occupations. So, read the law carefully and ask your lawyers for more detail.

And now, a mini-rant! I know that's why you come here.   

I'm not sure who's writing these statutes nowadays. But "does not include" and "shall not be construed to include" is entirely unnecessary repetition. And why say "court disposition" when they could say something more clear?  These California employment laws are getting longer and less comprehensible. Good for me; good for plaintiff lawyers; bad for our clients.

Anyway, you'll have to ensure conviction inquiries on application forms etc. are modified. 

* * * 

The second law could be a game changer for out of state and multi-state employers. 

SB 1241 (here) prohibits employers from requiring, as a condition of employment, that an employee agree to 

- litigate or arbitrate a dispute outside of California. For example a NY-based employee cannot require an employee to litigate or arbitrate his or her dispute in NY court.  This is a prohibition on "choice of venue" or "forum selection clauses." 

- a "choice of law" clause that requires another state's law to apply to a dispute.   So a multi-state employer that has a confidentiality / trade secret agreement cannot provide for another state's law to apply in the case of a dispute. 

Note - though that the law is applicable only to an employee who "primarily" resides AND works in California.  In wage-hour law, primarily means more than 50%.  Here, however, that term is not defined.  The law, then, will not apply to employees who do not primarily live in California.  It also will not apply to employees who work in more than one state, if California is not the "primary" state. 

The bill says that the provision is "voidable" by the employee, which means it is not illegal as written, but the employee can object to it and have it struck.  If it is struck then the matter must be litigated in California under California law. 

The new law also allows employees to challenge these provisions and receive an award of attorney's fees. However, the fee provision is "one way" and employers therefore will not be awarded fees if they win. 

Finally, this new law does not apply if a lawyer represented the employee when the employee agreed to the choice of law / venue provisions in the employment agreement. 

The law takes effect January 1 and applies not only to new agreements, but also to any agreement "modified" or "extended" after that date. 

So, the new law does not appear to apply to post-hire agreements unless modified or extended after 1/1/17. But it  will apply if  employment is conditioned on the agreement (e.g., the employee is fired if s/he doesn't agree).  It also does not appear to apply to separation agreements. 

This new law, however, will affect offer letters, confidentiality agreements, bonus plans, and restrictive covenants.