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Welcome to the Workplace, a podcast by Cal Chamber. I'm Matthew Roberts, Associate General Counsel for Labor and Employment with the California Chamber of Commerce. Hello, listeners, and welcome to the year 2025. As we all shake off the cumulative holiday hangover in January and get up to speed for another year, we are always preparing for what new compliance issues we need to be aware of. This year, of course, is no different, as 2024 brought its usual share of changes to us. But in our haste to get to know the new stuff, we often overlook the new year as a great time to shore up existing policies and procedures and double checking some compliance issues that may not be brand new, but that have occurred over the last several years that have kind of made compliance more difficult in several areas. So to discuss some annual checklist reminders for all employers, we are excited to have Cal Chambers General Council of Labor and Employment Bianca Saad join the show today. Good to have you here, Bianca.

Thank you, Matt. Always happy to join you.

I'm always happy to have you as well. And you know, you and I have discussed the importance of consistently auditing practices. We've seen this as just a best practice emerge over time with how many rules that we have because as you and I both know, each new law season doesn't really occur in a vacuum, but instead builds on each other over the years to create very complex compliant issues for certain employment practices. So let's run through some of these practices, starting with, of course, hiring. The labor market remains robust, but the circumstances in recruiting and hiring have kind of changed quite a bit due to a lot of laws and regulatory actions from the California government over the last several years. So, Bianca, what should employers look out for and need to audit through going through their hiring processes?

Great question. Yes, we've seen a lot of changes, as you mentioned, over the last several years that govern the hiring process. So I'll just, you know, just rattle off a few, just sort of as examples of why, you know, these annual audits are important. So, you know, for things like job advertisements, we know, of course, that the content around those, we have to be making sure that we're protecting against discrimination. In terms of our language, we've seen additional requirements imposed for certain employers with job postings, such as, you know, including reasonable pay scales on the job postings. Most recently, as of this year, we have a new law that prohibits employers from requiring a driver's license unless that employer reasonably expects driving to be one of the job functions. And an alternative means of transportation would not be comparable in travel time or cost to the employer. So that's the most recent one. Again, that would, you know, that should warrant employers going back and looking at what are they saying, are they having such a requirement? And if we do, we just need to make sure that we're on solid ground there in terms of being justified in doing so. Additionally, employers are prohibited from having certain content on job applications. As we know, for example, we don't ask about sex or gender. We can also not ask about an applicant's current salary or salary history in any form or fashion. When it comes to criminal background checks, California's Fair Chance act has in place an extremely robust process for ensuring first and foremost that that criminal background check is not conducted prematurely. That is to say, we cannot conduct background checks until that conditional offer of employment has been made. And then once we do conduct the criminal background checks, there's a very detailed process we have to go through before we can actually deny employment. So if a conviction pops up, employers must undergo what's referred to as an individualized assessment. We have to evaluate the nature of the offense in relation to the job duties of the position, and then applicants also have an opportunity to present additional information that then requires further analysis by the employer. All of this going through this formalized process before getting to that place of actually denying somebody employment. Similarly, with pre employment drug screenings, we have specific rules. Most recently, the Fair Employment and Housing act prohibits employers from discriminating against an applicant or an employee based on that person's use of cannabis. That's off the job and away from the workplace. So that means if we're conducting pre employment drug testing, we of course need to make sure that a test does not screen for what the law refers to as non psychoactive cannabis metabolites. Now, that's a very scientific sounding term, but the takeaway there is that if we're conducting these screenings, we of course need to work with our drug screening vendor to make sure that our screening is compliant.

Yeah, that was quite a laundry list, Bianca, of things that we went through. And what's really amazing about that list and the things that you discuss is that these really are like just the last few, several years that we've seen like three to five years of things. The drug testing one, as you talked about was just last year that went into effect. So I kind of wanted to pick your brain a little bit on a couple of those things. I know one thing you said was we have to make sure our job advertisements don't discriminate against protected classes. But that's kind of hard to understand. I'm just advertising for a job, Bianca. So how could I possibly discriminate when I say I need someone to perform these kinds of duties? What kind of language would you be talking about that might create a problem for me?

Yeah. So you'd want to stay away from any language that seems to be either targeting a particular protected class, such as we encourage young female college students to apply, or anything that is going to appear to be favoring a particular class over another, or discouraging a protected class. You know, having, even having experience ranges that have a cap is problematic. Right. Because we don't want to discourage individuals who, who are above the age of 40 who may have been in the workforce much longer. If we have a 10 year experience cap, then that's going to push out, you know, individuals in a protected class. So we have, we just have to be very mindful of the types of the, of language that we have in our job postings.

Excellent. And then you kind of talked about when we're talking about criminal background checks because this happens a lot, you know, with employers. Like I get a ping back, criminal history shows up. There's some kind of criminal history there. But you said, you know, it kind of has to relate to the job duties. So what are the kinds of things that you're looking for? A good example that we kind of talk about? There's.

Yeah. So one of the classic examples I know that we talk a lot about is, for example, let's say you have a DUI conviction that comes up for your receptionist position. And the job duties of that receptionist are going to be greeting customers and vendors, coming to the business, answering phones and filing essentially and assisting others as needed. Providing clerical work. There's no driving associated with that position. So you'd really need to look at that and assess the offense of that DUI offense. And what is the risk for this particular clerical position? Now, of course, you can use an opposite example where you have a DUI conviction or maybe more than one with somebody who's applying for a driving position. Right. That's going to be a very different analysis when you're going through and looking at the risk of hiring that individual with that conviction history.

Okay. I think that's so important for us to hold on to that as we move into the next section. Because when we talk about hiring, a related kind of issue to this is that we need to know what it is we're hiring for. Right. We're hiring for a specific job, specific job duties. And so we're looking for those things to be fulfilled with new workers. Alternatively, we may have workers who have been with us for a while who have seen their job duties change since we first hired them. And so to this end, we try and wrap up what our expectations are with these workers, whether they're new or ones that have been with us for a while for what we hired them for. And something called a job description, right? A nice form that says these are your job functions. This is what we expect you to do. Now, can you describe really the importance of the job descriptions themselves and really why we should review these annually? Because it's kind of one of those things. I know we all just think set it and forget it kind of thing.

Yes, that is so true. However, it's really important that we don't do that. We really resist the urge to set it and forget it, as you say. Because first of all, the job description houses what is referred to as the employee's essential job functions. And that's going to play a critical role in a number of things. But we want to, first and foremost, just make sure that the job description, of course, is accurate, accurately reflects what that individual is doing. As you mentioned, year after year, an individual's job duties may change and evolve. And so we need to keep it current and we need to update as needed in the hiring space, even. Right. That's a critical place for us to have an accurate job description, because it's important for that job description to form the basis of some of the questions we're asking and interviewing. We're really focusing on whether that individual is capable of performing the job. So you, of course, want to make sure that that job description is accurate to start. But beyond that, you know, then going through the hiring process, if you're conducting that criminal background check that we talked about, that's another place where that job description is going to play an important role because we have to perform that individualized assessment. And we're looking at, again, what is the nature of that offense alongside what is the job description? What are the duties that this individual is going to need to perform. Now, it's also going to help us to determine whether an employee is properly classified or can be properly classified as having exempt status, where they're going to be exempt for many labor code requirements, meal and rest breaks, things like overtime. There's a duties test that we have to look at there. And so the job description is going to help us through that analysis. Then we also have, of course, what is referred to as the interactive process that employers need to undertake. This is an obligation under both federal law, the Americans with Disabilities act, as well as California's Fair Employment and Housing act at the state level. So when we receive reasonable accommodation requests, the question of that accommodation is going to center around does the accommodation reasonably allow this individual to perform the essential functions of that position. Doing this analysis and making a determination as to whether we can accommodate, which is a legal requirement, if it's not an undue hardship, then we better be sure that those functions are, you know, are accurately reflected in the job description. And then lastly, it's also just as a general, you know, just for performance management perspective, it's going to set the expectations for the role. Right. And so if we're dealing with performance issues, and of course we should be documenting those things, we're always going to come back, back to that job description and be able to help that employee understand where they're falling short.

Yeah, this was an excellent example of why I treat job descriptions as the backbone really, of, you know, employee management, of compliance issues, because of how many different areas that these can help you and assist you with the other backbone. You know, I think there's a few backbones here that we can talk about, but another one that I see really is in employee handbooks. Now, we know, you know, January is always the season for employee handbook review, but these documents or these set of documents or policies are really important. Can you elaborate really, why we should always be reviewing these at the beginning of the year?

Yeah. So first, you know, of course we have new laws every year, and new laws almost always mean that there are going to be, you know, policy additions or we may need to just make updates to already existing policies. But even aside from addressing new laws, having a general review that occurs at least once a year is going to be helpful for a number of reasons. So first, our handbook, it's basically the workplace rules manual for our employees. It's how we are going to communicate the expectations and the policies to our employees. So if you want to enforce those rules, you of course need to make sure that your employees are aware of those rules. Secondly, a lot of times we have written policies that maybe have been in place for a while, they haven't been reviewed and they kind of get stale. Right. Maybe what's in the policy actually differs from what our practices in reality are. So similar to that job description, Again, it's always a good idea to review, make sure that, okay, do our policies reflect indeed what is happening in reality? And if there is a disparity, then that Annual review is a great time to address that. Another thing that can happen after a policy is implemented is it just may no longer be relevant to our operations anymore as again as things change and evolve. So you know, the quicker that we can fix this again, the quicker that we can have a handbook that is really going to communicate to our employees the rules that are indeed, you know, expected to be followed for the organization.

Yeah, and I can tell you past practice, and you and I both know this, like sometimes we'll just see handbooks that have not been reviewed in some years and beyond all the new laws and policies that we worry about with that, it's just, you know, the rules that you set in place in 2016 probably are not going to be relevant anymore in 2025. Or at least we should look at that and say, is this an important rule for us to go through? And you know, doing this on an annual basis really helps with that. Now a topic I find related to handbooks and workplace rules is training. Of course, part of the first line of defense against compliance violations is making sure we have provided enough training to our staff, both as required by law or as needed by our operations. And in particular class of employees that we really want to focus on are supervisors and managers. Managers where we can. So what should employers look for in creating a training regimen each year for employees?

Yeah, it's a great question. So when it comes to training, we of course want to always start off with asking ourselves what are the mandatory trainings that we must provide. So in California we know that we have our harassment prevention training that needs to occur every two years. We need to provide one hour for our non supervisory employees and two hours for our supervisors. Now remember, those new hires and newly promoted supervisors need to get that new training within six months of their hire or promotion. And also as of last year, we now have a general industry workplace violence prevention training that needs to occur annually and then anytime changes are made to the workplace violence prevention plan. Now that additional training can be limited to the scope of those changes. But again, if we are making something mid year, then that will require additional training. Then we have other trainings that are not mandatory per se, but they're so vital to compliance that they might as well be from our perspective as you know, compliance nerds around here. So a lot of wage and hour and private Attorneys General act or PAGA actions start off with the supervisors and managers failing to understand the wage and hour requirements. And so that can cause a problem and that can create issues with employees not getting Their breaks and the like, not understanding what it means to, you know, what's considered as hours work for purposes of pay, things of that nature. So we want to make sure that we are training our supervisors on those requirements, also training them on things like mandatory leave, such as paid sick leave, as well as the California Family Rights Act. All of this is going to help our organization to promptly respond to and administer those appropriate leaves. Now, when you're developing a training plan, you of course always want to assess for where the risks are occurring and then finding training that's suitable to mitigate that risk. And again, this is beyond what is just mandatorily required. This can include, you know, how employees are conducting their work and the systems they use to do it. So, for example, cybersecurity training, that would be a much needed add on for somebody who, you know, whose employees are working with computer systems. But whatever training your organization needs to complete, of course it should always be done with an eye towards effectiveness. We don't want to simply check a box that's not going to be enough to really mitigate the types of risks that the training is supposed to address. We want it to have an impact and be memorable for our employees. So, you know, we always encourage employers to look for training that is engaging and interactive to make the best use of their time.

Excellent. And yeah, you can see how like the required trainings apply to handbook or other policies we have. Right? We have a mandatory anti harassment policy. Well, how do we know how to not violate the anti harassment policy by taking our harassment prevention training. Same thing with workplace violence. We have our electronic communications policies or how you use an employer's resources or electronic tools. And that's where cybersecurity comes in to minimize the risk for that. So that's how I like to kind of tie the two of them together. You have the policies, you teach the employees how to follow through with the policies and give them the tools necessary and we can avoid a lot of compliance issues in that. Now lastly, and we'll conclude with this because one of the hottest topics on the helpline just traditionally is whether we can discipline our workers for workplace issues, certain specific circumstances, or usually in the more extreme examples, can I terminate their employment under these conditions? And you know, obviously employers don't want to get to this stage, but as we know, it happens regularly and alternatively not just with the negative impacts of employee performance and evaluation. We're always looking for positive ways to ensure that our operations are being met or to reward those employees who are performing well. So this is where we get into things like workforce management or performance improvement plans. So Bianca, what are your thoughts on procedures employers should look to implement to tackle workforce management or at least to update if they have some.

Yeah, so the first thing to keep in mind when we're looking at performance management and determining, you know, whether somebody's going to be disciplined or conversely, you know, is somebody going to be, you know, going to be rewarded in some fashion? Right. Anything that's impacting the terms and conditions of somebody's employment, we always want to make sure that those decisions are made for a non discriminatory, non retaliatory, legitimate business reason. And so to that end, a lot of these issues are handled by those effective performance management techniques. So, you know, having an effective performance review process, for example, whether it's quarterly or, you know, twice a year, where all employees are receiving a performance review by their manager, there are objective ways in which their performance can be measured. And we are having those conversations with our employees so that they are aware. Right. Because a lot of times if employers are not giving feedback when the problem becomes such a problem that they're ready to let them go, it might be a surprise to that employee if they haven't been told. And so we can run into some trouble there. And it's also having those systems in place is going to make sure that we are consistent again. Right. And avoiding any sort of discrimination or, you know, unlawful treatment in respect to that. And it's really too just a best practice because you want to be accurate and honest about how we're assessing our employees performance again, just from, as a, from a business perspective. Right. We just want it with retention and making sure that our employees, again, they know where they stand and they know what the expectations are of them and then bringing it all the way back at the risk of sounding like a broken record to that job description. Right. That's how we're communicating and that's going to help again, inform us as far as that performance management. Where are the problems, what do we need to address? And we can make sure that we're doing so, you know, all, you know, with those legitimate business reasons in mind.

Excellent. And you know, I think the most important part of that is if you're gonna use it, use it. Right, right. And being accurate and honest about that because, you know, we get these cases and we get documents in for our clients and I'm getting performance reviews from my client who was terminated for poor performance. And all of them say, you know, meets expectations, exceeds expectations, because a lot of times supervisors will want to just check a box and get this thing done. And they don't have the difficult conversations. But when it comes on the back end to support our decisions to discipline or terminate them, and I'm looking at documents that say they did their job, what is the other conclusion? It looks like it's actually going to be not a legitimate business reason there. So this again, we're training our supervisors and managers and making them aware. These are really important tools for us to performance manage our employees. So Bianca, this is an awesome discussion as we start the new year here in 2025. It was a real pleasure having you on to provide some of these beginning of the year reminders for employers beyond just the new law season.

Thank you Matt. Always a pleasure.

And thank you listeners for joining this discussion on the workplace. Please share and subscribe to Cal Chambers podcast by visiting calchamber.com.