New California Fair Employment Regulations Are No Joke

Starting April 1, 2016, pursuant to the amended California Fair Employment and Housing Act and California Family Rights Act ("CFRA") regulations, covered California employers must post amended workplace notices and revise their current practices to conform with significant changes in the law. The amended notices replace the California Department of Fair Employment and Housing's "Notice A" and "Notice B" postings. Furthermore, new policy requirements, updates to supervisor training requirements, and modifications to protected class definitions are only a few of the many other changes that will take effect.

Updated Notices

Notice A: All California employers employing five or more full-time or part-time employees must post the new "Your Rights and Obligations as a Pregnant Employee" notice by April 1, 2016. This notice, which must be posted in a conspicuous place, informs pregnant employees of their pregnancy-related rights, including their right to pregnancy disability leave ("PDL"). In addition to posting the notice, employers are required to promptly provide a copy of the notice to any employee who discloses that she is pregnant. An updated version of the notice can be found here.

Notice B: The CFRA regulations apply to California employers with 50 or more full-time or part-time employees. These regulations, which apply to workers with more than 12 months of service who have worked at least 1,250 hours in the 12-month period before the family care or medical leave, require covered employers to post a new version of "Notice B" in the workplace explaining the CFRA's provisions. The updated version of the notice may be found here.

Employers must also post translations of the applicable notice in any language spoken by at least 10 percent of their workforce. Furthermore, electronic posting of these notices may be sufficient, so long as the notices are conspicuous and can be readily seen by employees and applicants for employment.

Policy Requirements

Covered employers are required to have updated written policies against harassment, discrimination, and retaliation. These must contain specific information on prohibited conduct and complaint procedures, as well as the full list of protected classes and the updated definition of sexual harassment to include acts not motivated by sexual desire. Employers must also be able to show that they have provided such policies to employees, for example, by requiring employees to sign and return an acknowledgement.

Supervisor Training Requirements

In addition to the previously enacted supervisor training requirements, supervisor training must now also cover the potential exposure and liability for employers and individuals, a supervisor's obligation to report sexual harassment, discrimination, and retaliation, remedial measures to correct harassing behavior, and consequences, examples, and effects of "abusive conduct." Furthermore, employers must keep specific records of supervisor harassment trainings for a minimum of two years.

Protected Class Modifications

The amendments provide new protection against discrimination and harassment based on one's sex, gender identity, gender expression, or identification as transgender, which are now defined in the regulations. Pregnancy disability protections are also extended to those who identify as transgender. Furthermore, the protections from discrimination on the basis of national origin and ancestry have been amended to explicitly prevent discrimination on the basis of an employee holding or presenting a driver's license issued under section 12801.9 of the Vehicle Code, which allows issuance of a driver's license to persons who are unable to show that their presence in the United States is authorized under federal law.

If you would like more information regarding labor and employment issues, please contact an attorney in our Labor & Employment practice group for assistance.