California Discrimination, Harassment, and Retaliation Laws: A Snapshot of Changes in 2015
Get your employee handbook and red pen out because as of January 1, 2015, several new laws in California will take effect and require changes, and in some cases additions, to employer policies related to preventing discrimination, harassment, and retaliation in the workplace.
Interns Protected Under FEHA
The Fair Employment and Housing Act ("FEHA") will expand protections to include the "selection, termination, training, or other terms or treatment" of unpaid interns, apprentices, or persons in a limited duration program to provide unpaid work experience, and prohibit discrimination based on these protected characteristics (i.e., race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status). The law is reflected in amendments to Government Code section 12950.1.
Additionally, the amendment extends to unpaid interns, apprentices and other individuals in an unpaid training program religious accommodations and protections.
Anti-Bullying Training for Supervisors
Employers must include in their mandatory sexual harassment training for supervisors, an element on the prevention of abusive conduct in the workplace. "Abusive conduct" is defined as malicious conduct of an employer or employee in the workplace that a "reasonable person would find hostile, offensive, and unrelated to the employer's legitimate business interests." Abusive conduct may include repeated verbal abuse and verbal or physical conduct that is "threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person's work performance." This law is reflected in Government Code section 12950.1 and affects employers with 50 or more employees.
Visit our blog for a dedicated article on the anti-bullying training for supervisors at www.sdgllp.com/blog.
Expanded Protections for Employees Based on National Origin
FEHA protections based on national original will expand to prohibit discrimination based on possessing a driver's license granted under the provision of the Vehicle Code that permits the DMV to issue a license to a person who is unable to submit satisfactory proof that his or her presence in the United States is authorized under federal law, but that he or she meets all other qualifications for a license, including proof of his or her identity and California residency (i.e. a federally undocumented individual). However, this law does not abrogate an employer's responsibility to comply with Federal Immigration and Nationality Act for purposes of employee identification and work authorization. Employers must also keep copies of these licenses they obtain as private and confidential. Government Code section 12926 will be amended to reflect this increased protection.
Expanded Unfair Immigration-Related Practices
Existing law prohibits an employer from engaging in an unfair immigration-related practice against a person in retaliation for exercising a workplace right. Currently, unfair immigration-related practice includes, among other things, threatening to file or filing a false police report. AB 2751, which will amend Labor Code sections 1019 and 1024.6, expands these protections to include threatening to file or filing a false report or complaint with any state or federal agency.
A violation of this law exposes an employer to a civil suit for equitable relief and damages, as well the employer's business license may be suspended for a period of time, depending on the number of violations.
Additionally, an employer is also prohibited from retaliating against any employee who updates or attempts to update personal information based on a lawful change of name, social security number, or federal employment authorization document.
Lastly, AB 2751 also amends Labor Code section 98.6 and clarifies that the penalty imposed against an employer, up to $10,000 per violation, for an adverse action against an employee who complains of a Labor Code violation goes to the employee who suffered the violation.
Disclosures of Businesses that Provide Services to Minors
The addition of Business and Professions Code, Chapter 2.8, will require businesses that provide services to minors to give written notice to the parent or guardian about their policies relating to criminal background checks for employees.
Businesses that provide services to minors have the primary purpose to provide an extracurricular service/program to youth under 18 years of age and have adult employees who have supervisory or disciplinary power over a child or children (but exclude child daycare facilities). It also authorizes businesses that provide services to minors to receive a summary criminal history from the Department of Justice and subsequent arrest notification, and the use of this information would not violate specified employment laws.
For more information on upcoming changes to California's employment laws in 2015, contact Simpson Delmore Greene, LLP at (619) 515-1194.