California's Governor has signed into law AB 1964, which modifies California's Fair Employment and Housing Act's provisions relating to employment discrimination based on one's religious beliefs. FEHA has always prohibited discrimination against applicants and employees based on their religious beliefs, and has also required reasonable accommodation of employees' religious beliefs and observances, so this much is not new. The new law makes clear that "religious beliefs" include religious dress practices and religious grooming practices, meaning that employers cannot discriminate against applicants or employees bases on these practices and must also reasonably accommodate such practices in the workplace. According to the new law, “religious dress practice” shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed. “Religious grooming practice” shall be construed broadly to include all forms of head, facial, and body hair that are part of the observance by an individual of his or her religious creed. The new law further explains, in pertinent part, that it is an unlawful employment practice:
(l) (1) For an employer or other entity covered by this part to refuse to hire or employ a person or to refuse to select a person for a training program leading to employment or to bar or to discharge a person from employment or from a training program leading to employment, or to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of a conflict between the person’s religious belief or observance and any employment requirement, unless the employer or other entity covered by this part demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with his or her religious belief or observance or permitting those duties to be performed at another time or by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship, as defined in subdivision (t) of Section 12926, on the conduct of the business of the employer or other entity covered by this part. Religious belief or observance, as used in this section, includes, but is not limited to, observance of a Sabbath or other religious holy day or days, reasonable time necessary for travel prior and subsequent to a religious observance, and religious dress practice and religious grooming practice as described in subdivision (p) of Section 12926. (2) An accommodation of an individual’s religious dress practice or religious grooming practice is not reasonable if the accommodation requires segregation of the individual from other employees or the public.
While AB 1964's changes to FEHA arguably are intended simply to clarify existing law, the express modification of FEHA and highlighting of religious discrimination issues may lead to increased focus and scrutiny in this area and, thus, a greater likelihood of religious discrimination suits against employers. The full text of AB 1964 is here.
July 18, 2012
Posted by Cal Labor Law in New Laws & Legislation
California employers may want to be aware of a number of employment-related bills still pending before the California Legislature, each of which is listed below. This list does not include employment bills that have already died in various committees during this legislative session. Pending bills must be passed by each house by August 31. After that, the Governor has until September 30 to sign or veto the legislation.
AB 2386: This bill would expand the definition of “sex” under the Fair Employment and Housing Act to include breastfeeding and medical conditions relating to breastfeeding, making discrimination on those grounds a violation of FEHA with a correlating private right of action.
AB 2373: This bill would add a new section to the Labor Code setting forth 17 factors to consider to determine whether a worker is an employee or an independent contractor. The enumerated factors are similar to those employed by California courts analyzing independent contractor/employee status.
AB 1450: This bill would make it unlawful for an employer to exclude from the applicant pool or refuse to hire someone based on their unemployed status. It would also prohibit job advertisements stating that current employment is a requirement for consideration for the job.
AB 1999: This bill would add “family caregiver status” as a protected class under FEHA, thereby prohibiting discrimination in employment against a person based on the person being a family caregiver. For purposes of the legislation, “family caregiver” is defined as an individual who provides medical or supervisory care for a child, parent, spouse, domestic partner, parent-in-law, sibling, grandparent or grandchild.
AB 2039: This bill would expand the circumstances under which employees could take leave under the California Family Rights Act (CFRA) by (1) eliminating current age and dependency requirements from the definition of “child,” thereby permitting an employee to take leave to care for an adult child, (2) expanding the definition of “parent” to include parents-in-law, and (3) permitting an employee to take leave to care for a grandparent, sibling, or grandchild.
AB 1844: This bill would prohibit an employer from requiring or requesting that an employee or applicant disclose user name or password information for personal social media, or to divulge any personal social media.
SB 1255: This bill would specify circumstances under which “injury” would be presumed to an employee as a result of an employer not providing wage statements, or providing incomplete wage statements. Presumed injury would allow the employee to recover penalties and/or actual damage. Presumed injury could be shown by the failure to provide a wage statement at all, or by the failure to include the employee's name and last 4 digits of the social security number. It could also be shown by failing to provide complete wage information, causing the employee to be unable to determine (from the statement alone) gross and net wages earned, deductions therefrom, and the name and address of the employer.
AB 1744: This bill would require temporary services employers to include additional information on itemized wage statements for employees, including the rate of pay for each assignment, the name and address of the entity that secured the services and total hours worked for each entity.
AB 2674: This bill would amend section 1198.5 of the Labor Code relating to employee rights to inspect personnel files. The bill would require employers to maintain employee personnel files for at least 3 years following termination of employment, and to permit current and former employees (or their designated representatives) to inspect and copy personnel records, within 30 days of a request to do so by the employee. The bill specifies that an employer is not required to comply with more than 50 (whaaat?) requests for copies of personnel records by a representative of employee(s) in one calendar month.
AB 1964: This bill would add to the current requirement under FEHA that employers reasonably accommodate religious beliefs and observances of employees, by specifying that a religious dress practice or grooming practice are covered “beliefs and observances.”
AB 1875: While not technically an employment bill, this bill would impact employment litigation by limiting depositions in state court cases to 7 hours (as is the limitation in federal court).
As you can see, most if not all of these bills have the effect of adding new prohibitions on employment actions and increasing burdens on California employers, simultaneously giving rise to new potential legal claims for violations. Bills that aimed to reduce burdens on California employers, add flexibility to the workplace, and/or reduce litigation were largely killed by the California Legislature. We will continue to keep you updated on the progress of these bills as the close of the legislative session nears.
Following in the footsteps of San Francisco, the city of San Jose is considering raising the minimum wage for all work performed in the city limits to $10 an hour, with automatic annual increases based on inflation (consumer price increase). The Council will vote on the proposed ordinance Tuesday, May 22. If you have employees who are working in San Jose and wish to be heard on this issue, contact information for the City Council members is available here, and you can email or call them in advance of the vote.
Even if this measure fails, the minimum wage issue in San Jose is not dead. A group of San Jose State University students received enough petition signatures to put the measure on the November ballot. Thus, the citizens of San Jose will have a second opportunity to enact a higher minimum wage for San Jose employees in November when they go to the ballot box.
For restaurant, retail and other businesses in San Jose that employ workers at or near the minimum wage level, you will want to keep an eye on these developments. Of course, we will continue to keep you informed.
In addition, because this effort was spearheaded by local college students at SJSU, it is getting a lot of media attention and social networking discussion. If successful, it is very likely that other college students will use this as a model and similar attempts to raise the local minimum wage will increase in the coming months and years, particularly if the state minimum wage remains at $8 per hour and the economy and job market for college students remains difficult. Thus, the success of this proposal may have much broader implications than just for those doing business in the city of San Jose.
As we reported yesterday, a South Carolina District Court ruled that the NLRB did not have authority to mandate the Employee Rights Poster. The ruling is in conflict with the only other court to rule on the issue thus far--the District Court for the District of Columbia--and that decision is on appeal. Well, this morning the D.C. Circuit Court of Appeal granted the National Association of Manufacturers' request for a temporary injunction enjoining the NLRB's posting requirement pending appeal. The court reasoned that the uncertainty regarding enforceability of the posting requirement counsels in favor of temporarily preserving the status quo pending appeal. The NLRB has not yet affirmatively postponed its April 30 effective date for employer compliance, but with this ruling it appears employers will not need to comply effective April 30 and will instead need to stay tuned for developments in the ongoing legislation. The D.C. Circuit Court of Appeal's decision is here.
California employers trying to comply with the recently enacted Wage Theft Protection Act should take note that the Labor Commissioner has again modified the notice template, effective April 12, 2012. The new law, which went into effect January 1, 2012, requires California employers to provide non-exempt new hires with written notice of wage and related information. Most of the information required to be provided is set forth in the statute itself. However, the Labor Commissioner has authority to prescribe additional categories of information to be provided in the notice. Given that authority, the Labor Commissioner was also tasked with publishing a template that employers can use to satisfy their notice obligations. Causing challenge to employers is the fact that the Labor Commissioner waited until close to January 1 to publish any template and then prescribed additional content beyond that set forth in the text of the statute. If that is not confusing enough, the Labor Commissioner's office cannot seem to make up its mind about the contents of the template or the requirements of the Act. The Labor Commissioner has at least twice revised the FAQ on the Act's notice requirements, and has now issued a revised template. Employers who downloaded the original template will want to review the newly published template and newly revised FAQ. Most of the changes are fairly minor, but the newly revised template has different language on the subject of whether there is a written or oral employment agreement. It appears that this was in response to concern from employers that checking one of these boxes suggests the employee actually has some sort of employment agreement, weakening the at-will nature of the employment relationship. The new template (and FAQ) are revised to make clear that all this is referring to is whether the rate of pay is set forth in writing or was communicated only verbally. The revisions also make clear that the acknowledgement of receipt portion is optional, not mandatory. The new template and revised FAQ are available here and here. Employers will want to review these forms to ensure compliance. Unfortunately, there is no practical way for employers to stay apprised of continued changes by the Labor Commissioner going forward other than to periodically check the Labor Commissioner's website. We will of course try to report on changes on this blog.
This is a reminder that all employers covered by the National Labor Relations Act, which includes union and non-union employers, must post the 11" x 17" National Labor Relations Board's Employee Rights Poster at their workplace on or before April 30, 2012. If you have questions about the poster and the posting requirements, the NLRB has a wealth of information available on its website (including copies of the poster in multiple languages) here. There are still lawsuits pending trying to stop the implementation of the rules related to this poster, but the NLRB has stated that it is not going to further delay implementation.
There have been many changes to leave laws in recent years, both under the FMLA and under California’s CFRA. Proposed legislation recently has been introduced in California to further expand employees’ leave entitlements under CFRA. CFRA currently allows eligible employees to take up to 12 weeks of leave in a year as needed for the birth or placement of a child, or to care for their own serious health condition or that of a child (up to 18 years of age or an adult dependent), parent (which includes a step parent and/or person who stands in loco parentis to the child), or spouse/domestic partner. AB 2039 seeks to expand CFRA leave to allow employees to take such leave to care for siblings, parents in law, grandparents, and adult children. If enacted, AB 2039 will obviously increase employee leaves, resulting in additional burden to California employers. This is particularly true because California employers covered by CFRA are typically also covered by FMLA, meaning they have to comply with both laws and their employees are entitled to leave under the terms of both laws. Because FMLA does not provide for leave to care for parents in law, siblings, and grandparents, an employee who uses leave for that purpose under CFRA will not have exhausted their FMLA leave because the CFRA leave could not be concurrently counted as FMLA leave. In other words, the employee could theoretically take 12 weeks of leave under CFRA for a parent-in-law, grandparent or sibling, and then still be entitled to an additional 12 weeks of leave under FMLA for a spouse or child. This very scenario already exists in California where leave is taken for disability caused by pregnancy or to care for a domestic partner. Differences between CFRA and FMLA on these two categories result in leave not running concurrently under these two laws in these situations. AB 2039 would add further differences between CFRA and FMLA, making leave tracking even more complicated for California employers.
The full text of AB 2039 is available here. We will keep you posted on the status of this and other pertinent employment-related legislation pending in California.
Last week, we posted about the recent uproar over employers and colleges seeking to require applicants to surrender their Facebook passwords as a condition of hiring/admission and how that practice may be analyzed by the courts under an invasion of privacy challenge.
California employers should also note that the California legislature has proposed a bill that would specifically outlaw the practice. AB 1844, proposed by Assemblywoman Nora Campos (D), if enacted as currently drafted:
(a) would prohibit an employer from requiring an employee or prospective employee to disclose a user name or account password to access social media used by the employee or prospective employee; and
(b) would also provide that an employer does not fail to exercise reasonable care to discover whether a potential employee is unfit or incompetent by the employer’s failure to search or monitor social media, as defined, before hiring the employee.
The bill would add sections 980-982 to the California Labor Code to read as follows:
980. As used in this chapter, "social media" means an electronic medium where users may create and view user-generated content, including uploading or downloading videos or still photographs, blogs, video blogs, podcasts, or instant messages.
981. For purposes of a claim of negligent hiring, an employer does not fail to exercise reasonable care to discover whether a potential employee is unfit or incompetent by the employer's failure to search or monitor social media before hiring the employee.
982. An employer shall not require an employee or prospective employee to disclose a user name or account password to access social media used by the employee or prospective employee.
This bill is a mixed bag, as currently drafted. Proposed section 982 of the Labor Code would make it impossible for those California employers who wish to require applicants to surrender their Facebook and other social media passwords to engage in this conduct. Certain employers would see this as an unfair restriction. However, proposed section 981 of the Labor Code would protect California employers from negligent hiring lawsuits that are based on an employer's failure to search or monitor an applicant's social media profile and this would likely be seen as a positive piece of legislation by many California employers.
AB 1844 was referred to the Assembly Committee on Labor and Employment on March 5. We would not be surprised if this bill gained some traction as it may end up getting support from both employers and employees. We will continue to keep you updated on this and other important California legislative developments.
State and federal lawmakers are growing increasingly concerned about how our economy is making it difficult for long term unemployed workers to get back into the workforce. As a result, there is a movement to make being unemployed a new protected class. With a larger than normal percentage of voters being unemployed, you can bet this will be popular with some politicians up for re-election in November.
California is one of a number of states where legislation has been introduced to protect unemployed workers and prohibit an employer from using a person's unemployed status at the time of applying for a job as a negative criteria in the hiring process. The California bill is AB 1450 and was introduced in January. In addition to the California bill, Congress has introduced HR 2501 in the House and S 1471, two bills that would provide similar protections on a nationwide basis.
Currently, most protected status suits deal with harassment and termination of the employment relationship. Hiring discrimination cases are relatively rare. However, if any of these bills pass, employers covered by them should expect a wave of new litigation by unemployed applicants applied for positions but were not hired. Employers will certainly have to alter their hiring practices and train those making the hiring decisions and doing the screenings, in order to ensure that they can defend against such suits.
These bills will be something to keep an eye on in the coming months. We will continue to keep you posted on this blog.
The Department of Labor this week announced proposed regulations that would expand the military caregiver leave provisions of the FMLA, and also create special rules for FMLA eligibility for airline flight crew employees. The proposed regulations would implement amendments to the FMLA set forth in the National Defense Authorization Act for Fiscal Year 2010. The proposed regulations set forth the following changes to current FMLA leave provisions:
Military Caregiver Leave
According to the DOL, “The proposed regulations would extend the entitlement of military caregiver leave to family members of veterans for up to five years after leaving the military. At this time, the law only covers family members of ‘currently serving’ service members.”
The proposed regulations would also expand the military family leave provisions of the FMLA by extending qualifying exigency leave to employees whose family members serve in the regular armed forces. Currently, the law only covers families of National Guard members and reservists.
The DOL’s proposed regulations also contemplate other changes to the military caregiver leave provisions, including that qualifying exigency requires the service member to be deployed in a foreign country. The regulations would also expand the definition of “serious injury or illness” to include conditions that existed prior to military service but were aggravated by military service.
Airline Flight Crew Employees
According to the DOL, the proposed regulations would make the benefits of the FMLA more accessible to airline flight crew employees by adding a special hours of service eligibility requirement for them and specific provisions for calculating the amount of FMLA leave used, in consideration of the “unique and often difficult to track” hours worked by crew members. Specifically, airline flight crew employees who have worked or been paid for not less than 60 percent of the applicable total monthly guarantee and worked or been paid for not less than 504 hours (not including personal commute time or time spent on vacation, medical, or sick leave) during the previous 12 months satisfy the hours of service eligibility requirement for FMLA.
For more information on the proposed regulations, you can review the DOL’s FAQ here.
So, do employers need to worry about any of these changes now? According to the DOL, yes. Some of the changes technically are already in effect by virtue of the passage of the NDAA. The extension of qualifying exigency leave to employee’s whose covered service member is in the Regular Armed Services is in effect. Additionally, the new requirement for qualifying exigency leave that the service member be deployed in a foreign country is in effect. Finally, the expanded definition of “serious illness or injury” to include aggravations of pre-existing conditions, is currently in effect. According to the DOL, the only military caregiver leave change not yet in effect (until the proposed rules are approved and implemented) is the extension of caregiver leave for veterans as opposed to current service members.
As for the FMLA changes pertaining to airline flight crew employees, the DOL is taking the position that these changes are also effective now, per the passage of the Airline Flight Crew Technical Corrections Act (AFCTA).
We will keep you posted as to developments with these proposed regulations. In the meantime, employers will want to review their policies and procedures for compliance.