Seyfarth Synopsis: California’s new law, Assembly Bill 450, signed by Governor Brown on October 5, and effective January 1, 2018, imposes several new immigration-related duties on California employers and the potential for civil fines. AB 450 will require employers to understand or seek guidance on where the new law ends and federal immigration law begins.
Seyfarth Synopsis: On July 17, 2017, the California Fair Employment and Housing Council (FEHC) heard public comments on its proposed regulations covering national origin discrimination under the FEHA. Discussion centered on employer-imposed language restrictions, English proficiency requirements, and immigration-related employment practices. Look for final regulations later this year.
The FEHC kicked off its third meeting…
Seyfarth Synopsis: The California Fair Employment and Housing Council (“FEHC”) has approved new regulations, effective July 1, 2017, to limit employers’ use of criminal history when making employment decisions.
New Regulation Highlights
Seyfarth Synopsis: The Fair Employment and Housing Council is vetting proposed regulations to prevent employers from discriminating against applicants or employees with criminal histories. Our colleague Kate Svinarich attended a recent public hearing and filed this report. And stay tuned for a later dispatch, featuring proposed regulations on Transgender Identity and Expression, which the FEHC …
- In February, the DFEH issued guidelines on dealing with transgender issues in the workplace (see our report here).
- Now, effective April 1, 2016, the Fair Employment & Housing Council gives us amended regulations on preventing discrimination, harassment and retaliation in the workplace. See our One Minute Memo
Paga is a city in Ghana, well-known for its crocodile pools. PAGA, California’s Private Attorneys General Act of 2004, allows employees to sue their employers on behalf of themselves and other “aggrieved” employees to recover penalties for Labor Code violations. What do the two, other than a shared moniker, have in common? Run afoul of …
As a loyal reader of our CalPecs Blog, you know that last year’s Senate Bill 1038 eliminated the Fair Employment and Housing Commission, including its administrative adjudication of FEHA claims. The bill created a Fair Employment and Housing Council, to perform the former Commission’s regulatory functions.
Is the Council a …
Labor Code Section 226 makes California employers liable for penalties if they issue inadequate wage statements that cause ‘injury.” Courts generally have denied penalty claims where hypertechnical violations did not cause real harm. Unsatisfied with this result, employee advocates lobbied for a 2012 amendment. Senate Bill 1255, effective January 1, 2013, amends Section 226(e) …
A 2012 state budget trailer bill revolutionized California’s Fair Employment and Housing Act (FEHA), the state’s preeminent civil rights law. As of January 1, 2013, in addition to saving the state $784,000 annually, the measure further:
- Eliminated the former Fair Employment and Housing Commission (FEHC), which previously conducted administrative hearings and rulemaking.
- Ended administrative adjudication and authorized the Department of Fair Employment and Housing (DFEH or Department), the state’s enforcement agency, to file cases directly in court. Prior to the DFEH filing a civil action, all parties must undergo free mandatory dispute resolution in its internal Dispute Resolution Division.
- Authorized courts, upon the Department prevailing, to award the DFEH reasonable attorney’s fees and costs to be deposited into a special fund.
- Created within the DFEH the Fair Employment and Housing Council (Council) to conduct rulemaking. Council membership is comprised of seven volunteer members appointed by the Governor and confirmed by the Senate, as well as the DFEH Director as an ex officio member.
The DFEH has swiftly moved forward on all these changes.
Expediting Investigations: Under its new HoudiniESQ cloud-based case management system, the Department expedited complaint investigations from 11 to nine months to ensure sufficient time for mandatory dispute resolution required by the new amendments.
Expanding Dispute Resolution Services: The DFEH expanded its former Mediation Division to a Dispute Resolution Division. Seven experienced attorney mediators in Northern and Southern California offices now provide both voluntary and mandatory dispute resolution services. In addition, a non-attorney mediator provides voluntary mediation services for small housing cases. In prior years, the DFEH mediators’ successful settlement rate has been 82 percent.
Filing Civil Actions: The Department is now filing civil actions in Superior Court on investigated cases with merit findings that were not successfully resolved through dispute resolution. No damages caps are available in civil actions. The DFEH can be awarded reasonable attorneys’ fees and costs, including witness fees, upon prevailing. The Department pegs its attorney hourly rate to that of the California Office of the Attorney General.
We all know that agency regulations can be informative guidance but, by their nature, extremely detailed and—let’s face it—dry as toast. The new disability regulations, which went into effect on December 30, 2012, are no exception.
The regulations seek to “clarify” statutory definitions and employers’ obligations to an employee with an actual or perceived disability. However, these “clarifications” expand employers burdens under California law.
Expanded Definition Of “Disability” Including:
- post-traumatic stress disorder
- autism spectrum
- heart disease
- multiple sclerosis
- seizure disorder
- clinical depression
- obsessive compulsive disorder
- bipolar disorder
Before the regulations: Whether these conditions met the definition of “disability” under California law was subject to debate, as many other conditions.
After the regulations: Not much to debate. The new regulations specifically say that the analysis as to whether a condition is a disability should not be extensive, regardless if it is a condition explicitly recognized by regulations as such.
Expanded Definition of “Major Life Activities”: The definition of “major life activities” now includes sleeping, thinking, and interacting with others (which implies that social disorders will now also be considered disabilities).
How To Determine When Functions Are Essential? The regulations provide additional guidance as to when a job function is essential. Updated and accurate job descriptions are crucial and are now actually required by the regulations. Performance evaluations will also assist in determining whether a function is essential.
The Growing List Of Reasonable Accommodations: Similar to the new pregnancy disability regulations that we discussed here and here, the disability regulations include a broader list of reasonable accommodations.