According to KCRA NBC 3 (12/27/17) what truly governs the issue of legalized marijuana and the workplace within the context of California and labor law is the employer’s drug policy. What’s more, according to KCRA the passage of the Golden State’s marijuana laws as part of Proposition 64 included an exemption for workplace drug policies.
The new world with weed
Thus, it behooves the employee to be conversant with drug policies observed and implemented by the employer. A Sacramento-based attorney, in comments to KCRA, noted that marijuana remains an illegal substance under federal law, and thus employers are going to have a fair bit of leeway, “to decide what kind of workplace drug and alcohol policies they want to implement in regards to marijuana,” said Samson Elsbernd, in comments to KCRA.
That said, employers need to undertake their due diligence as well. If there is no drug policy in force, there should be – and if there is one, the employer would be wise to update existing policies specifically spelling out their policies regarding marijuana: whether they test for it, what criteria they use for testing employees, and what disciplinary actions can be taken as the result of a failed test.
As marijuana becomes as commonplace as tobacco, this could be vitally important.
There are other changes to California labor employment law that came into effect with the New Year. The Mercury News (01/01/18) reports there are increases to the minimum wage in the State, the New Parent Leave Act (SB63), immigration and the workplace, and disclosures of previous salary levels and criminal history when applying for a job.
Discriminating against applicants with a criminal history
Past rules prohibited employers from asking job applicants about previous arrests that did not result in a conviction. The new laws go further: The California Fair Chance Act (AB1008) prohibits any business with five employees or more from requesting details about a job applicant’s criminal history on applications forms. Prospective employers are now not allowed to ask about, or even consider an applicant’s criminal history – known, or suspected – before making a conditional offer of employment.
What this does, is ensure a conditional offer of employment is based solely on an applicant’s qualifications for the job, rather than any interpretation of character that could be clouded or compromised by a criminal past.
It’s important to note the new rules only apply to conditional offers of employment, not actual hiring. Once a conditional offer of employment has been made, any criminal past which may be revealed in the qualifying process would require an “individualized assessment” on the part of the employer – as opposed to a blanket ‘no’ to the applicant if, and when a criminal history is revealed. It also gives the applicant the opportunity to speak to the issue with the prospective employer, and challenge an employer who retracts a job offer based solely on the discovery of a criminal history.
Were the employer to drop the ball with these new tenets, the job seeker would have grounds for a California labor lawsuit.
Employers can’t ask applicants about prior salary levels
Any job seeker who is asked about prior salary history now has grounds for litigation within the California labor code thanks to AB168, which also came into effect New Years’ Day. It is now against the law for a prospective employer to use previous salary levels as a qualifier to determine whether, or not to hire the applicant. While an employer may, indeed consider any salary information willingly and voluntarily disclosed by an applicant – without prompting – that information should not form the sole basis of whether, or not to grant the applicant the job sought.
If an applicant requests the requisite pay scale for the position to which he has applied, the employer by law has to provide the information as requested.
Immigration officers are restricted under tight criteria
Under AB 450, employers in California are prohibited from giving federal immigration enforcement agents access to non-public areas of a business without a judicial warrant: nor can they provide enforcement agents access to employee records without a warrant or subpoena, except when a federal Notice of Inspection has been issued to check I-9 documents or others.
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The National Employment Law Project, Legal Services for Prisoners with Children, and the Time for Change Foundation collectively wrote in support of AB 1008 that “The Fair Chance Act will help ensure that these 8 million Californians are judged by their qualifications and work experience – not rejected by employers at the start of the hiring process because of a checked box.”
If applicants are rejected unfairly in violation of the new California state labor laws, they would have grounds to file a California labor lawsuit.