Status of NPLA, ‘Ban-the-Box’ Regulations

Several FEHC-proposed regulations that clarify topics like new parent leave and criminal background checks will be up for public comment soon.

As previously reported, California’s Fair Employment and Housing Council (FEHC) has been working on amendments to the state Fair Employment and Housing Act (FEHA) to address two laws that went into effect on January 1, 2018 — the New Parent Leave Act (NPLA) and the statewide ban-the-box law. The FEHC held a meeting on October 19, 2018, during which it discussed further amendments to the regulations.

Answering Questions About NPLA

Small businesses in California had to begin providing baby-bonding leave this year, as the NPLA requires employers with 20 or more employees to provide eligible employees with up to 12 weeks of unpaid, job-protected leave to bond with a new child. Yet employers were left with some questions about how to comply with the NPLA, such as whether employees could use NPLA leave intermittently and if a workplace notice would be required.

Those questions and others will be answered in the regulations proposed by the FEHC. The proposed regulations will amend the existing regulations for the California Family Rights Act (CFRA) to integrate the NPLA (the CFRA also provides for baby-bonding leave, but applies to employers with 50 or more employees). Under these proposed regulations, the two laws will largely track each other, although there are still differences between the two, such as how employers can require employees to use vacation or paid time off during leave.

Once adopted, the proposed NPLA regulations will provide more clarity to California employers on how to comply with the NPLA as well as also require an update to the current required CFRA poster.

Clarity on Use of Criminal Convictions in Hiring, Employment Decisions

Another significant law that went into effect this year was California’s ban-the-box law, which prohibits employers with five or more employees from asking job candidates about any criminal background before a conditional job offer has been made. This law came on the heels of criminal history regulations promulgated in 2017, which apply to all employment decisions and not just hiring.

The proposed regulations merge the new law with the pre-existing regulations. The proposed regulations state when an employer can receive criminal history information about a job applicant and how that information can be used in hiring decisions. These regulations also address the use of conviction history in employment decisions.

What’s Next?

The FEHC made additional revisions to the proposed NPLA and criminal history regulations at the October 19 meeting, and will publish the revised regulations on the FEHC website for a 15-day public comment period. Once the time for public comments and hearings on the proposed amendments is over, the amended regulations will go to the state Office of Administrative Law for approval.

But Wait, There’s More!

The FEHC is also working on amendments to the regulations that govern required sexual harassment training in California, as well as introducing religious accommodation and age discrimination regulations. More information about those proposed regulations can be found on the FEHC’s website.

Erika Pickles, Employment Law Counsel/HR Adviser

CalChamber members can view more information on the New Parent Leave Act and Criminal Background Checks in the HR Library. Not a member? See how CalChamber can help you.

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