State Reveals Its Template for Notice to All Newly Hired Employees
Balancing Worker Privacy with an Employer’s Rights to Protect Safety
In February, 2013, the California Supreme Court decided that even where illegal discrimination (e.g., racial, gender, age, religion) was one of a number of motivating factors in terminating a worker, the employer will not be liable for damages if it can show the business would have fired that person in any event for non-discriminatory reasons.
Wynona Harris v. City of Santa Monica was the Supreme Court’s long-anticipated decision in a “mixed motive” case, where a defendant employer is found to have terminated someone for improper, discriminatory reasons as well as legitimate business purposes.
Ms. Harris was a newly hired bus driver for the city. She had a rocky start, including two accidents and two unexcused latenesses or no-shows. Under the city’s point system, termination was warranted.
While her supervisors were deciding whether to fire Ms. Harris over these offenses, she announced she was pregnant, a circumstance protected against discrimination by California’s Fair Employment and Housing Act (FEHA). See, e.g., Bowles Law Office blogs “Pregnancy Disability Leave, California Employers’ Obligations” and “Expanded Pregnancy Health Benefits Law for Most California Employees.” The city nevertheless terminated Ms. Harris a few days later, citing the above performance problems. She sued Santa Monica for pregnancy and sex discrimination under FEHA.
At trial, the judge directed the jury that the city was liable for discrimination if the employee-plaintiff was able to prove that her pregnancy was a “motivating factor/reason for the discharge.” The jury then found that Harris’s pregnancy had in part motivated the city to terminate her, awarding her $177,905 in damages and $401,187 in attorneys’ fees.
However, the Supreme Court found the trial judge’s jury instruction had been mistaken. The court resolved that if the city can prove it would have terminated Ms. Harris even if she had not been pregnant at the time, then she will not be able to collect damages nor be reinstated. While this poses a significant new barrier for plaintiffs to receive compensation for emotional distress or lost wages resulting from a “partly discriminatory” termination, the decision still permits injunctions and attorney fee awards against employers in such a “mixed motive” case. Obviously, no employer is immune from complying fully with prohibitions against unlawful discrimination.
(Photo by Paul Sakuma, Associated Press)
Beginning March 8, 2013, employers with 50 or more employees and subject to the federal Family and Medical Leave Act (FMLA) must display a new poster. The change is prompted by new U.S. Department of Labor (DOL) regulations.
This new “Employee Rights and Responsibilities Under the Family and Medical Leave Act” poster is included as “Notice C” on the more comprehensive California Chamber of Commerce “California and Federal Employment Notices” poster.
Along with a summary of FMLA, the new posting provides instructions for filing a complaint under that law. As always, covered businesses must display the poster in a conspicuous place where employees and job applicants can readily view it.
California businesses employing 50 or more workers, including temps and independent contractors, must provide a minimum of two hours of sexual harassment prevention training to all supervisory employees every two years. 2013 is such a year. With completion required by January 1, 2014, the training must be interactive and cover all aspects of harassment awareness, prevention and resolution. Our upcoming training seminars are updated on the current law and enable employers to comply with the legal requirements.
Employers who fail to comply before the end of the year will increase their risk of liability in the event of workplace harassment claims. Of course, trained managers should be more capable of detecting and thus preventing or resolving problems before they spiral out of control.
Our seminar includes:
Seminar topics include:
Our firm is offering two options for interested managers and human resources personnel. Larger companies may choose an on-site seminar at your place of business. With specific Pasadena location to be announced, we will also host seminars on Wednesday, June 19, 2013 and Wednesday, November 13, 2013.
For more information, please email firstname.lastname@example.org or call 626-583-6600.
Effective January 1, 2013, California’s Fair Employment and Housing Act (FEHA) expands the definition of potentially protected religious beliefs and practices to include “religious dress and grooming practices.” Employers also must now meet a much more stringent standard to deny accommodation of religious practices as an undue hardship to the business.
Religious Dress and Grooming: The new law, titled the California Workplace Religious Freedom Act of 2012 (“WRFA”) amends Government Code sections 12926 and 12940 to specify that “religious dress practice” is “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” includes “all forms of head, facial, and body hair that are part of the observance by an individual of his or her religious creed.”
This FEHA amendment thus establishes that an employee’s religiously motivated appearance (for example, a Sikh male’s turban or facial hair, or a Muslim woman’s head scarf) trigger an employer’s duty to seek reasonable accommodation of such a dress or grooming practice.
The new law also specifies that an employer accommodation “religious dress or grooming” is not reasonable if it requires the employee to be segregated from the public or other employees. This provision stems from a 2002 case where an employer segregated a Sikh man from public view due to his turban. FEHA now clearly states such an employer action would be unlawful.
The new law also directs that an employer is not required to accommodate such a dress or grooming request if it would result in the violation of any other law prohibiting discrimination or protecting civil rights.
Employer’s More Stringent Requirements to Establish Undue Hardship on Any Religious Accommodations: Before 2013, California employers could show “undue hardship” by establishing a worker’s request for religious accommodation would have but a bare minimum (de minimus) negative impact on the business’s operations or finances. See, e.g., “Avoiding Religious Discrimination in the Workplace,” Bowles Law Report, Vol. 9, Issue 4.
Similar to lawful “undue hardship” justifications for declining accommodations of employee disabilities, a company must now show a “significant difficulty or expense” to establish undue hardship in the religion context. “Significant” depends on several factors: (1) the nature and cost of the accommodation needed; (2) the overall financial resources of the facilities involved, the number of persons employed at the facility, and the effect on expenses and resources or on the operation of the facility; (3) the overall financial resources of the company as a whole; (4) the type of operations of the company; and (5) the geographic separateness of the facility.
FEHA continues to require that a business claiming undue hardship demonstrate that it has explored any available reasonable means of accommodating the religious belief or observance.
Starting December 30, 2012, California employers are responsible for implementing new regulations on the state’s Pregnancy Disability Leave (PDL) law .
Among the significant changes are:
- Definition of “Four Months” Entitlement – PDL is part of California’s Fair Employment and Housing Act (FEHA), requiring employers with five or more employees to provide up to four months of disability leave to pregnant employees with no minimum length of employment required before the leave is taken. The newly revised regulations direct that “four months” means the number of days or hours the employee would work within four calendar months (17 1/3 weeks), if the leave is taken continuously, following the date the pregnancy disability leave begins.
This is important for the calculation of the “four months” for an employee who qualifies and chooses to take “intermittent leave” (that leave in intervals), returning to the job for a time and then going out again (and/or working partial days, and/or going out on an occasional basis for medical appointments). That person’s leave rights don’t expire four calendar months after the leave starts, but after she has taken the applicable number of leave days or hours calculated from a four month continuous leave period. For example, for an employee who works 20 hours a week, “four months” means 346.5 hours of leave entitlement. For an employee who normally works 48 hours a week, “four months” means 832 hours of leave entitlement.
The regulations also confirm that employees are eligible for up to four months of leave per pregnancy, not per year.
- Reasonable Accommodations – PDL is unpaid leave. While the PDL has always required employers to make reasonable accommodations for workers temporarily disabled by pregnancy that nevertheless sought to continue to work and earn a wage, the regulations did not previously offer examples of the actions considered reasonable. While determination of whether an accommodation is reasonable must always be on a case-by-case basis, the new regulations provide such examples, including: “(1) modifying work practices or policies; (2) modifying work duties; 3) modifying work schedules to permit earlier or later hours, or to permit more frequent breaks (e.g., to use the restroom); (4) providing furniture (e.g., stools or chairs) or acquiring or modifying equipment or devices; or (5) providing a reasonable amount of break time and use of a room or other location in close proximity to the employee’s work area to express breast milk in private as required by Labor Code section 1030.”
- Health Benefits – The new regulations direct employers to maintain and pay coverage for an eligible female employee for the duration of the leave, “not to exceed four months over the course of a 12-month period, beginning on the date the pregnancy disability leave begins,” and “at the same level and under the same conditions that coverage would have been provided if the employee had continued in employment continuously for the duration of the leave.” An employer may recover from the employee the premium paid while the worker was out on PDL if a) the employee fails to return at the end of the PDL, and b) that failure to return was for a reason other than several specified circumstances, most related to that employee’s continuing health problems. See also, “Expanded Pregnancy Health Benefits Law for Most California Employees.”
- Updated Employee Notices: The new regulations require employers to post a new “Notice A” or its equivalent (for employers with five or more on payroll subject to Pregnancy Disability Leave) and “Notice B” or its equivalent (for employers with 50 or more on payroll subject to the Family and Medical Leave Act and the California Family Rights Act) to reflect the changes.
- Definition of Covered Pregnancy Conditions – The PDL provides protections for employees with temporary disabilities including pregnancy, childbirth or related medical conditions. The new regulations specify that “related medical conditions” include, but are not limited to, “lactation-related medical conditions such as mastitis; gestational diabetes; pregnancy-induced hypertension; preeclampsia; post-partum depression; loss or end of pregnancy; or recovery from loss or end of pregnancy.”
- Medical Certification – Employers must now notify employees if they require workers to provide medical certification of the pregnancy, the deadline for providing such certification, what constitutes sufficient medical certification, and the consequences for failing to provide medical certification. The regulations permit an employer to use the form contained in these rules or to use its own form.
With the new regulations spanning some 28 pages, the above summaries refer to only some of the significant points. For a broader review and help on how these new rules might impact your business, please contact our firm’s attorneys Tim Bowles or Cindy Bamforth.