Since 2005, California has required employers with 50 or more employees to conduct sexual harassment training of supervisors within 6 months of assuming a supervisory position and biennially thereafter. Last week, Governor Brown signed AB 2053 into law, expanding the mandated content of this training to include training on prevention of “abusive conduct.” The statute defines "abusive conduct” as conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. The statute further provides that abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. However, “a single act shall not constitute abusive conduct, unless especially severe and egregious.”
The new law does not further specify the content of the training on prevention of abusive conduct, nor does it mandate that any specific amount of time be allotted to this topic within the 2-hour sexual harassment training. The new law takes effect January 1, 2015. Employers covered by California’s training requirement should review and revise their training materials to ensure that prevention of abusive conduct is covered.
To be clear, this new training requirement does not create a private right of action by an employee against the employer to seek damages for workplace bullying. It is a training requirement only. That said, if an employee is “bullied” because of a characteristic protected under California’s Fair Employment and Housing Act (e.g. race, gender, religion, disability, age), the employee could bring a claim for harassment or discrimination under that law. Additionally, even if bullying is not directed at an employee because of a protected characteristic, it is still possible for a bullied employee to pursue a claim for intentional infliction of emotional distress. For these reasons, employers (regardless of whether they are covered by the new training requirement) may wish to include language in their employee handbooks making it a violation of company policy for employees to engage in workplace bullying/abusive conduct toward other employees. Employers should also take workplace complaints of abusive conduct/bullying seriously by conducting prompt investigations and taking appropriate remedial action.
Last week, San Francisco’s Board of Supervisors unanimously adopted the Family Friendly Workplace Ordinance, giving employees the right to request flexible work schedules or other accommodations to help the employee with childcare obligations and other similar household obligations. The ordinance of course provides legal remedies to an employee whose rights under the ordinance are violated. San Francisco Mayor Ed Lee has stated that he will sign the ordinance into law, but has not yet done so. If signed into law as expected, the ordinance will take effect January 1, 2014. Thus, employers with employees in San Francisco should familiarize themselves with the newly passed ordinance.
The ordinance applies to employers who regularly employ 20 or more employees, including part-time employees, within the City of San Francisco. The ordinance grants employees with 6 or more months of service and who work at least 8 hours per week the right to request a flexible work arrangement to accommodate the employee’s caregiving responsibilities for (1) a child; (2) a parent age 65 or older; or (3) a spouse, domestic partner, parent, child, sibling, grandparent or grandchild with a serious health condition. An eligible employee may make up to two requests for accommodation per year, but may make additional requests following the birth or adoption of a child and/or an increase in the employee’s caregiving responsibilities for a family member with a serious health condition. An employee may request accommodation in the form of an alternative work schedule, telecommuting, job sharing, part-time work, or any other type of flexible work arrangement. An employee’s request must be made in writing, and must detail the accommodation requested and how that accommodation relates to the employee’s caregiving responsibilities. The request must also state the proposed commencement and duration for the requested accommodation.
An employer who receives a written request must respond both verbally and in writing. The employer must meet with the employee about the request within 21 days of receiving the request. The employer thereafter must respond to the request in writing within 21 days, explaining whether the employer will grant or deny the request. An employer who denies the request must explain, in writing, “bona fide business reasons” for the denial, such as identifiable cost of granting the request (lost productivity, rehiring or retraining costs), negative effect on ability to meet customer demands, inability to meet work demands or transfer work among employees, etc.
If an employee’s request is denied, the employee then has 30 days to seek reconsideration, which requires the employer to again meet with the employee within 21 days and respond in writing thereafter within 21 days.
The new ordinance states that it shall be unlawful for a San Francisco employer to interfere with, restrain, deny the exercise of any rights granted by the ordinance. It also makes it unlawful to discharge, threaten to discharge, demote, or otherwise take adverse employment action against an employee for exercising rights under the ordinance. The ordinance grants enforcement authority to San Francisco’s Office of Labor Standards Enforcement, which can investigate alleged violations and take administrative and legal action to enforce the ordinance and remedy certain violations. The ordinance does not provide for a private right of action.
Employers will be required to post mandatory posters (not yet published) concerning the new ordinance and will also be required to maintain records of employee requests for 3 years.
The text of the ordinance is available here.
Employers probably recall that last year the EEOC published guidance on the use of criminal background checks in the hiring process. This led many to forecast that the EEOC would be stepping up its enforcement efforts in this area. Well, earlier this month the EEOC filed lawsuits against two different companies, BMW Manufacturing and Dollar General, alleging that their criminal background check policies discriminated against black applicants in violation of Title VII. According to the lawsuit against BMW, BMW had a policy that barred employment to applicants with certain criminal convictions regardless of how old the conviction was, the nature or gravity of the offense, or the nature of the employment position sought. The EEOC charged that BMW's policy had a disparate impact on blacks and constituted unlawful employment discrimination.
In the case against Dollar General, the EEOC similarly alleges that Dollar General's criminal conviction policy disparately impacts black applicants. That lawsuit arose out of two administrative charges filed with the EEOC by rejected applicants. In one case, the applicant had a six-year old drug conviction. Dollar General's policy was to consider this type of conviction a bar to employment if the conviction was less than 10 years old. As such, the applicant was not hired. In the other case, the applicant's background check revealed a felony conviction but the applicant insisted that the report was wrong. Although she informed Dollar General of the mistake, she still was not hired. The EEOC is now challenging Dollar General's criminal convictions policy as a whole. In both cases, the EEOC seeks back pay as well as injunctive relief. The EEOC's press release regarding these two lawsuits is available here.
The EEOC's increased attention and enforcement efforts in this area serve as a reminder to employers of the need to review their criminal background check policies (as well as similar questions on employment applications) to try to ensure the policies pass muster under the EEOC's guidance. Our prior post on that guidance is available here. California employers must also be mindful that California has some additional restrictions on the scope of criminal background checks used for employment purposes (e.g. California Labor Code section 432.8, which prohibits employers from considering certain marijuana-related convictions in making employment decisions). Thus, California employers need to ensure that their policies and procedures comply with both federal EEOC guidance and California law.
California’s newest regulations pertaining to the rights of the disabled in the workplace require employers to allow “assistive animals” in the workplace as a reasonable accommodation to certain disabled employees. See CCR 7293.6 & 72940(k).
While service dogs for the visually and hearing impaired have become a more common sight in California’s workplaces, the regulations specifically permit other animals that provide “emotional or other support to a person with a disability….”
An employer need not play “possum” when confronted with an employee’s request to bring an assistive animal to the office. First, an employer may require the employee to provide medical certification from the employee’s health care provider (which, broadly defined, now includes therapists, acupuncturists, dentists, physicians, clinical social workers, nurse practitioners, midwives, chiropractors, optometrists, psychologists, and podiatrists) certifying that the employee has a disability and that explains why the assistive animal provides an accommodation.
Still got your goat? An employer may also require a certain level of training, namely that the assistive animal
- is free from offensive odors and displays habits appropriate to the work environment, for example, the elimination of urine and feces;
- does not engage in behavior that endangers the health or safety of the individual with a disability or others in the workplace; and
- is trained to provide assistance for the employee’s disability.
But an employer must act jackrabbit quick, because it is only within the first two weeks that the assistive animal is reporting to the workplace that an employer is expressly permitted to challenge the animal, based on objective evidence of offensive or disruptive behavior. (It is not clear what happens if an animal becomes violent, dangerous or its toilet training breaks down after the first two weeks). Thereafter, annually, the employer may (and should) require annual recertification of the employee’s continued need for the support animal.
As assistive animals become more common in the workplace, employers will increasingly be confronted by the potential conflict and disruptions that service animals will provide. Not only the distraction from the getting the job done, but other employees’ claims of allergy and other reactions to the animals which may then require additional accommodations. It is not clear how the courts will react to these cases as there is no precedent.
Following its recent release of a new I-9 form, the U.S. Department of Homeland Security has now announced that a new I-9 manual has been released. The manual is a useful guide to some of the more obscure procedures involved with the I-9 form. The manual can be found here.
On Friday, March 8, 2013, the U.S. Department of Homeland Security finally issued the long-awaited updated I-9 Form. The old form can still be used for two months until May 7, 2013. The new I-9 form is available here.
The I-9 form is used to verify work authorization of new hires in the U.S. as well to re-verify work authorization of foreign nationals working with temporary work authorization. The new and old forms are very similar in content. However, unlike the old one-page form, the new form is 3 pages long and easier to understand and fill out. The new form also clearly differentiates between employees who only need to be verified once (U.S. Citizens and permanent residents) and foreign nationals who are here temporarily and must be re-verified whenever their work authorization expires.
Regarding the list of acceptable documents that an employee tenders, the new form emphasizes that if a social security card is selected by the employee as a List C document, only an unrestricted social security card is acceptable. If the social security card has any restrictive language on it, it cannot be used for I-9 purposes since the individual may have obtained it when they had temporary work authorization and now no longer do.
Although there is a Spanish version of the I-9 form as well, it may only be used in Puerto Rico.
As a reminder, at the time of hire, employers must inspect an original document chosen by the employee from List A, or one each from Lists B and C. It must be done within the first 3 days of hire. It is recommended that copies of the documents be attached and retained to the I-9 as further proof of the good faith efforts by the Employer to comply with the mandate. If the documents appear to be authentic, then the employer will not be liable if it later turns out they are not authentic. The I-9 forms should be retained for 3 years after termination of employment. Employers who have enrolled in E-Verify must still have a paper or digital I-9 on file for every employee.
Employers are encouraged to periodically audit their I-9’s and take corrective action where errors are found.
In recent years, the FMLA has been amended several times, most recently in 2009 under the National Defense Authorization Act and Airline Flight Crew Technical Corrections Act. While the most recent amendments relate to rarely used FMLA provisions, the DOL recently approved new regulations covering these provisions, and of even more significance to all FMLA-covered employers, issued a new FMLA poster effective today, March 8, 2013. The new poster is available here. All employers covered by the FMLA should begin using the new poster immediately. For more information on the most recent amendments to the FMLA, see our prior post here. Additional information relating to the new regulations is available on the DOL's website here.
As readers of this blog know, over the last year the NLRB has issued a number of decisions unfavorable to non-unionized employers, including decisions relating to at-will employment policies, social media policies and related terminations, and arbitration policies. Some of these decisions were made by an NLRB Board, comprised largely of members appointed by President Obama as recess appointments in January 2012. This means that the members were not confirmed by the Senate as typically required. Senate Republicans refused to confirm President Obama's NLRB appointments at the time, so President Obama decided to get around the Republicans' obstacle by exercising a right to appoint people to fill vacancies in government agencies during a tiime when Senate approval cannot be obtained due to the Senate being in recess. A legal challenge was mounted to the President's recess appointments to the NLRB on the ground that the Senate was not really in recess at the time these appointments were made, and thus the appointments are unconstitutional. Today, the D.C. Circuit Court of Appeals agreed. In Noel Canning v. NLRB, the Court held that "recess" means the period of time during which the Senate is formally adjourned following a two-year session. It does not mean any period of time when the Senate is not in session for one or more days (such as was the case last January when the President made the "recess" appointments). As such, the Court held that the NLRB recess appointments were unconstitutional. This is hugely significant given that the NLRB needs at least three members to act, and three of the four members of the NLRB in 2012 were recess appointments--likely rendering invalid all NLRB decisions issued during this time.
It is anticipated that the D.C. Circuit decision will be appealed to the United States Supreme Court. We will post developments here.
California's Fair Employment and Housing Commission recently proposed new pregnancy disability regulations. These proposed regulations underwent rounds of public comment and revision, but were recently finalized and approved by California's Office of Administrative Law. As such, the new regulations take effect December 30, 2012. The new regulations are available here. California employers with 5 or more employees are required to provide up to 4 months of pregnancy disability leave to employees disabled by pregnancy or related conditions and there is no length of service requirement to be eligible for this leave. The new regulations detail the process an employer is required to follow in accommodating such leave requests, from initial certification through reinstatement. The regulations also clarify how "four months" is calculated for purposes of identifying the maximum amount of leave available to full-time and part-time employees. The regulations further make clear (based on a recently enacted California law) that employers are required to maintain group health benefits under the same terms as if the employee was actively reporting to work for up to 4 months, and that this requirement is in addition to any additional obligation to maintain health benefits during an an additionally approved FMLA/CFRA leave of up to 12 weeks. The new regulations contain a great amount of detail and guidance for employers trying to manage this leave process. Employers are advised to review the rules and their policies and practices to ensure compliance.
The FEHC also has proposed regulations pending on disability (non-pregnancy) leaves. Those rules are not yet final, but are available here for employers who are interested in reviewing and possibly providing comment and/or proposed changes to the FEHC. A public comment period is currently underway through December 17, 2012. We will post developments here.
California employers with employees in the cities of San Francisco and San Jose should take note of minimum wage increases for these cities taking effect in 2013. San Francisco passed its minimum wage ordinance a few years ago, but the minimum wage is subject to adjustment each year based on the cost of living. Effective January 1, 2013, the minimum wage for employees who perform at least two hours of work per week in the City of San Francisco is $10.55 per hour (up from $10.24/hour in 2012).
This week, San Jose voters approved a local minimum wage for the City of San Jose as well. With the passage of Measure D, the minimum wage for employees working in San Jose will be $10.00 per hour. The new San Jose minimum wage takes effect 90 days after the election results are certified, which means approximately March 2013.
The state minimum wage otherwise remains at $8.00 per hour.