Continuing in this series on new California regs, this post calls out three additional areas where the pregnancy disability regulations have changed as of January 1, 2013.  Last time, we talked about expanded definitions, time periods for leave, and required notices.  This time, we are talking reinstatement, interplay with other leaves and reasonable accommodation.  For

After almost two years of public comment and editing, the California Office of Administrative Law finally settled on a crop of regulations that substantially alter the way Pregnancy Disability Leaves (PDL) are administered in California.  The regulations (effective December 30, 2012) have created additional burdens for employers that many may find onerous:    

Expanded Definition

Both federal and California law have long forbidden religious discrimination in employment, while also requiring employers to grant reasonable accommodations for religious observances.  A common accommodation is to modify a policy to enable an employee to engage in a particular religious observance (such as not working on the Sabbath).  California has now set itself apart with the recent amendments to the FEHA

Federal Law:  Since 1977 the federal law has recognized that employers need not provide accommodations that would impose more than a minimal burden on the employer’s operations.  And federal cases have also allowed employers, in enforcing personal-appearance codes, to accommodate certain grooming or dress practices by having the employee work in a designated area of the workplace.

California Peculiarities:  The FEHA amendments essentially codify cases holding that employers must reasonably accommodate religious dress and grooming practices.  But the Legislature has now made California quite distinct from federal law in two fundamental respects: 

  1. It is now clear, if it was not before, that California law, unlike federal law, requires employers to show a truly significant “undue hardship” to avoid providing a reasonable accommodation.
  2. California now categorically disallows, as a form reasonable accommodation, the practice of having the employee work in a designated part of the workplace to avoid, for example, contact with customers.

Workplace Solutions:  From a practical perspective, the new FEHA amendments will cause employers to review their policies and procedures relating to dress and grooming codes to ensure that they comply with California’s new, stricter provisions. The employer’s use of the interactive process in addressing disability accommodations could serve as a good model in addressing issues of religious accommodations, especially now that the undue hardship analysis in both kinds of cases will be essentially the same.

Another Perspective:  Our guest author, Alan J. Reinach, Esq., Executive Director of the Church State Council, was instrumental in lobbying for these new amendments to FEHA.  His legal practice emphasizes First Amendment religious freedom cases, and religious accommodation cases under Title VII of the Civil Rights Act of 1964 and related state civil rights laws.  While his views do not necessarily reflect those of the authors or Seyfarth Shaw LLP, Mr. Reinach offers a thoughtful perspective worthy of careful consideration.   

California Dresses Up Religious Accommodation Law

By:  Alan J. Reinach, Esq.

On September 8, 2011, Governor Jerry Brown signed AB 1964 into law before a crowd of several hundred Sikh-Americans who had gathered to remember those slain at a Wisconsin temple earlier that summer.  He spoke passionately about how California is a state of immigrants representing hundreds of nations, languages, and religions.  His grandfather drove a wagon train in gold country, and only spoke German.
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In November, Democrats won a supermajority in the California Legislature (55 seats in the Assembly and 27 in the Senate). Democrats now have the votes to pass measures requiring a two-thirds majority vote, without any help from that pesky other political party.  Even more, they then need only to pass the bill to Democrat Governor Jerry Brown for his seal of approval.  Will the Dems use this newfound power to make California even more peculiar on the labor and employment front?  Will Brown rubber stamp what the Dems put on his desk, or continue his reputation of marching to his own drummer? 

It’s still quite early in the 2013-14 Legislative Session – a time when many of the bills introduced are merely “spot” holders for later substantive amendments. Nonetheless, while it is still too early to make any concrete predictions, we can make some educated guesses about what will emerge on the labor and employment front this year:

Prediction #1: More Protected Statuses

The unemployed:  Governor Brown vetoed legislation last year that would have made unemployed a protected status under FEHA, stating that “[t]his measure seeks to prevent discrimination against the unemployed based on their job status by prohibiting employers from stating in employment ads that applicants must be employed.  Unfortunately, as this measure went through the legislative process it was changed in a way that could lead to unnecessary confusion.”  The bill’s author has left the Legislature. If a new bill now goes through the process without such “confusion,” that bill may meet the Governor’s approval.  If so, it would not be the first.  Oregon recently enacted similar protections, as did the District of Columbia and New Jersey.  There was also a similar bill pending on the federal level that died in Committee. 

The homeless:  Assembly Member Ammiano has introduced AB-5, dubbed the “Homeless Person’s Bill of Rights and Fairness Act” that would prohibit discrimination under the Unruh Act and Fair Employment and Housing Act on the basis of “housing status,” defined as “the status of having or not having a fixed or regular residence, including the status of living on the streets, in a vehicle, or in a homeless shelter, or similar temporary residence or elsewhere in the public domain.”  The bill is currently before the Assembly Committee on the Judiciary.

Potential consequences of either of the above becoming law?  Employers will face additional challenges in ensuring that recruiters, human resources personnel, interviewers, and management employees are trained to be aware, navigate, and comply with these requirements. 
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Philosophical Question: If a tree falls in the forest and there is no one there to hear it, does it make a sound?

Philosophical Employment Law Question: If a California employee receives a paycheck that does not contain the pay period dates (or other custodial information), does the employee suffer an injury?

California courts, among the most liberal in the nation, have struggled with this deep philosophical question (not the one about the trees).

Majority View: Most courts have concluded that an employee does not suffer an injury when his or her paystub does not contain information like pay period dates or the employer’s full name and address. These courts require proof of an actual injury to trigger penalties under Labor Code section 226.

Minority View: A smaller number of courts have held that injury occurs automatically if the paystub does not contain every single element that Labor Code section 226 requires.

CA Lawmakers’ View: The division among the courts prompted the Legislature to pass (and the Governor to approve) legislation that amended Labor Code section 226 (effective January 1, 2013) to state that an employee will be deemed to suffer injury if an employer fails to provide a wage statement or accurate and complete information as required by law, and the employee cannot promptly and easily determine from the wage statement alone one or more of the following:
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Among the many California Peculiarities that employers must face are special rules on personnel record keeping. In 2012 the Legislature, in enacting AB 2674, made those rules yet more complicated and onerous. Until December 31, 2012, employer obligations to make employee performance records or grievances available were drawn out in the seven subdivisions of Labor Code section 1198.5(a)-(g). Effective January 1, 2013, the statute’s subdivisions now number seventeen, reflecting nine key changes:

One: 

Before, the law gave “employees” the right to inspect records.
Now, former employees and their representatives (i.e., attorneys) are expressly afforded these right.

Two:

Before, employees only had a right to inspect records.
Now, it is a right to inspect and copy.

Three:

Before, there was no specific format or procedure to request records.
Now, employees may make requests orally (to inspect) or in writing (to receive copies), and employers may create a request form that employees can choose to use.

Four:

Before, employers had to make records available at undefined “reasonable intervals.”
Now, former employees can make one request for records per year, representatives 50 requests per month, and current employees – still unclear.
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The California Legislature has been keen on human trafficking the past few years — eradicating it, that is.

Last Year: On January 1, 2012, the California Transparency in Supply Chains Act of 2010, began requiring large retail sellers and manufacturers to publicly disclose on their websites their efforts, if any, to ensure their supply chains

In 2012, the Legislature amended the Fair Employment and Housing Act to expand potential liability for employers in three significant ways that increase risks and burdens for California employers.

1. Religious Dress and Grooming Practices: Deviating from federal law, FEHA now expressly protects religious dress and grooming practices as protected practices/characteristics and narrows the employer