How the New California Laws Will Impact Your Business in 2014 and Beyond, Part 2: EEO, Disability, and Leave Legislation

Part one of this three-part series covered the six wage and hour bills that Governor Brown recently signed and which will go into effect on the first of the year. Part two covers the equal employment opportunity (EEO), disability, and leave-related legislation of which employers should be aware in 2014.

1. AB 556: Military and Veteran Status Under FEHA

AB 556 amends sections 12920, 12921, 12926, and 12940 of the Government Code and adds “military and veteran status” to the list of categories protected from employment discrimination under the California Fair Employment and Housing Act (FEHA). “Military and veteran status” encompasses employees who are “a member or veteran of the U.S. Armed Forces, U.S. Armed Forces Reserve, the U.S. National Guard, and the California National Guard.” In addition, AB 556 specifically allows employers to inquire about an applicant’s or employee’s military or veteran status for the purpose of awarding a veteran’s preference as permitted by law.

What Employers Should Do

Employers should review and revise their employment policies and handbooks to add this new protected category. Employers should establish written, objective, and job-related hiring criteria and job descriptions for each position to ensure that the best qualified candidates are selected for each position and to ensure that employers can support the preferential treatment of veterans.

2. SB 292: Sexual Harassment

SB 292 amends Government Code section 12940 and effectively overturns prior judicial precedent, which limited the definition of harassment because of sex in FEHA. The new law expressly provides that unlawful “[s]exually harassing conduct need not be motivated by sexual desire.”

What Employers Should Do

Employers should provide anti-harassment training to all supervisors and emphasize that teasing, joking, banter, conduct, and “horseplay” that is sexual in nature or may be perceived as sexual in nature is not acceptable behavior in the workplace even where the employees’ conduct was not motivated by sexual intent or desire. Note that employers with 50 or more employees doing business anywhere in the United States are required by Government Code section 12950.1 to provide at least two hours of anti-harassment training to all California supervisors.

3. SB 496: Expanded Protection for Whistleblowers

SB 496 applies to employees who have reasonable cause to believe that information that they are disclosing to a government or law enforcement agency is a violation of or noncompliance with a local rule or regulation. SB 496 amends section 1102.5 of the Labor Code and prohibits an employer from making, adopting, or enforcing any rule, regulation, or policy that prevents an employee from disclosing such information to a government or law enforcement agency. This new law prohibits an employer from retaliating against an employee:

• because the employer believes that the employee disclosed or may disclose information to a government or law enforcement agency;
• because the employer believes that the employee may disclose information to a managerial employee with authority to investigate, discover, or correct the violation; or
• for disclosing, or refusing to participate in an activity that would result in, a violation of or noncompliance with a local rule or regulation.

What Employers Should Do

Employers should establish an internal mechanism for employees to raise questions and concerns about the company’s business activities and/or the conduct of other employees and supervisors. Generally, when the employer maintains an internal mechanism for dealing with such concerns and consistently addresses employee concerns, employees are less likely to seek assistance from governmental agencies or third parties.

4. SB 770: Expanded Scope of Paid Family Leave (PFL) Program

SB 770 amends, repeals, and adds provisions to the Unemployment Insurance Code relating to the Paid Family Leave (PFL) benefit program administered by the California Employment Development Department (EDD). The PFL program is similar to the California State Disability Insurance (SDI) program and provides up to six weeks of monetary benefits (but not time off or leave) to employees who take time off to care for a sick “family member.” The new provisions, which become effective on July 1, 2014, expand the definition of “family members” to include grandparents, grandchildren, siblings, or parents-in-law.

What Employers Should Do

Employers are required to provide employees who need to take extended time off to care for a covered family member with information regarding their rights to apply and instructions for application for PFL benefits. Additional information regarding California’s PFL program and the required notices can be obtained on the EDD’s website. Employers should also review and revise their leave of absence policies to include a provision that the receipt of PFL or SDI benefits does not guarantee that employees will be approved for leave/time off and does not extend the maximum amount of leave available under state or federal leave laws.

5. SB 530: Dismissed Criminal Convictions

SB 530 amends Labor Code section 432.7 and adds Penal Code section 4852.22. This new law prohibits employers from considering prior criminal convictions in employment decisions (or requiring disclosure thereof) when the conviction has been judicially dismissed or ordered sealed. This law contains exceptions to these prohibitions where: (1) the employer is required by law to obtain information regarding conviction of an applicant; (2) the applicant would be required to possess or use a firearm in the course of his or her employment; (3) an individual who has been convicted of a crime is prohibited by law from holding the position sought by the applicant, regardless of whether that conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation; or (4) the employer is prohibited by law from hiring an applicant who has been convicted of a crime.

What Employers Should Do

Employers should review their hiring criteria and practices and instruct hiring managers not to seek, review, or consider information regarding convictions that are covered by this new law. In addition, employers should consult with any third-party vendors who provide pre-employment screening to ensure that these vendors modify their reporting criteria to the extent possible, to exclude prohibited information from inclusion in criminal background reports.

6. SB 288: Victims of Specified Offenses

SB 288 applies only to employees who are victims of certain offenses. The new law adds Labor Code section 230.5, which prohibits employers from discharging, discriminating against, or retaliating against in any manner, such an employee for taking time off from work to appear in court to be heard in a proceeding in which a substantive right of the employee/victim is at issue. Time off under this law is unpaid. The employee must give reasonable advanced notice unless not practicable. In addition, the employer is entitled to obtain information such as police reports, court orders, or medical documentation to verify the need for time off. Employees who are subjected to an adverse action in violation of this law may file a complaint with the Division of Labor Standards Enforcement (DLSE) within one year of the alleged violation.

The specified offenses covered by this law include vehicular manslaughter while intoxicated, felony child abuse likely to produce great bodily harm or a death, assault resulting in the death of a child under eight years of age, felony domestic violence, felony physical abuse of an elder or dependent adult, felony stalking, solicitation for murder, “serious felony,” hit-and-run causing death or injury, felony driving under the influence causing injury, and sexual assault. “Victim” includes the employee or the employee’s spouse, parent, child, sibling, or guardian.

What Employers Should Do

Employers should adopt a procedure for responding to requests for time off that may be protected by this law and a procedure for obtaining appropriate documentation to verify the need for time off.

7. SB 400: Expanded Protections for Victims of Stalking

SB 400 amends Labor Code sections 230 and 230.1 and extends the protections provided to employees who are victims of domestic violence and sexual assault to employees who are known or suspected victims of stalking. The new law prohibits employers from discharging, discriminating against, or retaliating against employees because of an employee’s known status as a victim of stalking and allows employees to take unpaid protected time off from work to attend to legal, safety-related, and personal issues resulting from being a victim of crime. Employers are required to engage in the interactive process and provide reasonable accommodations for a victim of domestic violence, sexual assault, or stalking who requests an accommodation. Reasonable accommodations may include implementing safety precautions at work. The employer may require certification of the employee’s continued victim status for the time off and reasonable accommodation.

What Employers Should Do

Employers should implement a protocol for handling employee requests for time off or reasonable accommodation. Further, employers should provide guidance to supervisors regarding their responsibilities in responding to and/or escalating any requests for time off or accommodation and regarding their obligations not to discriminate or retaliate against employees who are covered by this law.

8. San Francisco Family Friendly Workplace Ordinance

The provisions of this new local ordinance take effect on January 1, 2014, and apply to employers with 20 or more employees in San Francisco. The ordinance provides that eligible employees who are caretakers or parents have the right to request, in writing, predictable and flexible workplace schedules. The ordinance prohibits employment discrimination based on an employee’s status as a caretaker or parent and prohibits retaliation against any employee who exercises their rights under the ordinance. In addition, the ordinance outlines specific procedures that must be followed by an employer that receives a written request. The full text of the proposed ordinance is available here and a Fact Sheet is available here.

What Employers Should Do

Employers with 20 or more employees in San Francisco must develop a policy and procedure that will ensure compliance with this new law without running afoul of other California laws, such as the daily overtime, meal, and rest break requirements. In addition to this new ordinance, some employers with employees in San Francisco must provide paid sick leave and/or health insurance.

The next and final post in this series, “How the New California Laws Will Impact Your Business in 2014 and Beyond, Part 3: California Immigration Related Legislation” provides details on the three newly-signed immigration-related bills in addition to two bills that the governor vetoed.