WORKPLACE LAW – Fantasy Sports in the Workplace

Question: I recently had an employee ask for permission to host a fantasy football league in the office.  I enjoy fantasy sports and think an office pool could be a nice (pardon the pun) team building activity.  But, I am concerned about allowing something that could be viewed as gambling.  Is an office pool legal?  Are there other concerns or best practices I should consider?
Answer: Allowing for a fantasy football pool in the office may seem like a harmless morale boost (and in fact, studies have found that certain types of office pools can boost morale), but it may present legal and practical challenges for your business.
In California, gambling for money at work is illegal.  Until 2009 even a low-stakes office pool could theoretically result in a misdemeanor.  However, in 2009 the law was revised making most pools an infraction (like a parking ticket, with a $250 fine), so long as the payout is under $2,500 and a few other conditions are met.
Unfortunately, this means that your employee’s suggested office pool is problematic.  In creating the “infraction only” exception the legislature made clear it does not consider small scale pools a problem, and I have found no cases of enforcement occurring except in circumstances that would not have qualified for the exception anyway (such as where the pool administrator is taking a large cut).
That said, condoning any illegal activity at work can lead to significant issues for employers.  For example, while gambling addiction itself is not a protected classification in California - symptoms such as depression are protected and office pools may present dangers for employees facing compulsive gambling issues.  Religious harassment allegations are also a risk if players abstaining for religious reasons are pressured to participate.  Indeed, significant concerns come less from the potential illegality itself, and more from the non-participants.  Whistleblowers reporting illegal activity are protected from retaliation, including those reporting illegal gambling.
It may be legal to institute an office pool with no entry fee or prize of any value (including money, items, perks, or anything of material value).   However, as discussed above, there are numerous issues to consider which potentially outweigh any possible morale gains.
As a practical matter it’s probably impossible to entirely prevent gambling or fantasy sports in the workplace.  If nothing else, employees have rest breaks and smart phones.  Yet, even if the potential for workplace gambling cannot be entirely prevented, cautious employers would still be well served to institute policies forbidding gambling in the workplace, during work time, using work resources (including computers and email), and any involvement with online daily fantasy sports betting (at least until pending legislation clarifies the legality of such websites).
On the other hand, if you do decide to attempt to create an office pool that falls outside of the definition of “gambling” be sure to carefully review California gambling law and implement best practices including describing what types of pools are permitted, describing whether, when and how company property may be used, and specifying that pools cannot be done during work time and cannot interfere with productive work time.  Any policy should also include a complaint reporting procedure, and specify the discipline that applies for violations.


WORKPLACE LAW – I-9

Question: I just hired a new employee and when I gave him a Form I-9 to complete, I noticed that it says “Expires 03/31/2016.”  Does that mean I can’t use this form anymore?  Is there a new Form I-9?
Answer: As you note, the current Form I-9, also known as the Employment Eligibility Verification, appears to have expired a couple of months ago.  Nevertheless, the U.S. Citizenship and Immigration Services (“USCIS”) advises that until further notice, employers should continue using that Form I-9.  The USCIS will be providing updated information on its website about the new version of the form, which is not yet available.  You can access the USCIS website at www.uscis.gov.
All employers, even those with only one employee, are required to complete a Form I-9 for every new employee hired.  The purpose of the Form I-9 is to ensure that employers hire individuals who are legally authorized to work in the United States, which includes U.S. citizens, noncitizen nationals, lawful permanent residents, and aliens authorized to work.
On the first day of employment, the employer must give the Form I-9 to the employee, who on that same day must complete Section 1 of the Form, including the employee’s name, address, date of birth, and an attestation, under penalty of perjury, of the employee’s status in the United States as a citizen, permanent resident, or other.  The employee must sign and date the form.
Subsequently, within three business days of the date employment begins, the employee must present to the employer an original unexpired document or documents showing his or her identity and employment authorization.  The Form I-9 lists acceptable documents to meet this requirement.  It is important that the employee choose which document or documents he or she wishes to present.  The employer cannot require that an employee present specific documents.
Once the employee has presented the original documents, the employer must physically examine each one to determine if it reasonably appears to be genuine and to relate to the person presenting it.  The person examining the documents must complete and sign section 2 of the Form I-9 certifying that he or she has examined the documents, that they appear to be genuine and to relate to the employee, and that to the best of that person’s knowledge, the employee is authorized to work in the United States.
Some employers choose to make photocopies of the documents presented.  If an employer chooses to do this, it must photocopy documents presented by all employees, regardless of position, and regardless of status.
Employers must keep an employee’s completed Form I-9 for the duration of the employee’s employment.  Once that employment relationship ends, the employer must keep the employee’s Form I-9 for three years after the date of hire, or one year after the employment relationship ends – whichever is later.
It is very important for employers to ensure that they keep these Form I-9 records, properly completed, and for the correct period of time.  The Department of Homeland Services, Office of Special Counsel for Immigration-Related Unfair Employment Practices, and the Department of Labor can come to an employer’s premises, with a minimum of three days’ notice, and inspect an employer’s Form I-9’s.  The employer must make these available to any of these agencies.  The penalty for failing to comply with these requirements ranges from $110 to $1,100 per form.


WORKPLACE LAW – Rebooting Workplace Harassment Prevention Efforts

Question: Why must I attend sexual harassment training at work each year? I’ve never heard any co-worker complain about sexual harassment and I don’t have time to attend training.
Answer: Since 2005, California public employers, and private employers with 50 or more employees, are required to provide at least two hours of effective, interactive sexual harassment prevention training to all supervisory employees, and to also provide such training within six months of any employee initially assuming a supervisory role.  After the initial training, all supervisory employees must continue to receive sexual harassment prevention training and education at least every two years.
But is the training working? The Equal Opportunity Employment Commission spent a year tackling this question, ultimately issuing a 95-page report. The June 2016 “Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace” found that 28,000 of the approximate 90,000 charges the EEOC received in the 2015 fiscal year included an allegation of workplace harassment, 45 percent of which were based on sex.
“Six years ago, when we came to EEOC as commissioners, we were struck by how many cases of sexual harassment EEOC continues to deal with every year. … We are deeply troubled…,” remarked Co-Chairs Chai Feldblum and Victoria Lipnic, who authored the Report.
Taking formal action is the least common response to workplace harassment, evidenced by the 90% of individuals who claimed to experience harassment but never filed a charge or complaint, according to the Report. The EEOC Select Task Force found that even worse, approximately three out of four individuals never even informed a supervisor of the workplace harassment.
These statistics signal, per the Report, a lack of progress in the 30 years since the U.S. Supreme Court recognized claims for sexual harassment as Title VII discrimination under the 1964 Civil Rights Act.  Despite the exposure to legal liability and despite the workplace compliance and harassment prevention training adopted and encouraged to date, Feldblum and Lipnic have a “firm, and confirmed, belief that too many people in too many workplaces find themselves in unacceptably harassing situations when they are simply trying to do their jobs.”
What, then, is an employer to do?  Reboot workplace harassment prevention efforts, according to the Co-chairs. The EEOC offers suggestions about how to “reboot.” The Report emphasizes focusing on prevention, recommends alternative approaches to education and training, and provides concrete take-aways to implement. Employers must look for risk factors (e.g., isolated workspaces), take nuanced approaches (e.g., incrementally changing reward systems), and think outside the box.
The “It’s on Us” campaign, originally developed to reduce sexual violence in educational settings through broad-reaching empowerment, is one nontraditional method to consider.  Calling it an “audacious goal,” the Report touts the Campaign’s ability to transform workplace harassment from a problem defined by targets, harassers, and legal compliance, to a situation in which co-workers, supervisors, and clients all play a role in ending harassment. The Report is available at https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm
Statistics in the coming years will bear out the effectiveness of the EEOC’s recommendations.  For now, employers should look to the Report for salient ways to revamp training efforts.


WORKPLACE LAW – Unpaid Interns

Question: I run a small business and regularly use summer interns because they offer low- or no-cost labor in return for work experience they can put on their resumes.  However, I recently heard that interns may have to be paid at least minimum wage.  Is that true?
Answer: While the use of unpaid interns may be common practice for many for-profit private sector employers, specific rules apply to determine whether that practice is lawful under state and federal employment laws.
As explained by the Wage and Hour Division of the U.S. Department of Labor (DOL), internships in the “for-profit” private sector are usually viewed as “employment,” meaning the intern is entitled to minimum wages and overtime compensation under the federal Fair Labor Standards Act (FLSA) unless all six of the following six factors are satisfied:

  1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
  2. The internship experience is for the benefit of the intern;
  3. The intern does not displace regular employees, but works under close supervision of existing staff;
  4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
  5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
  6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If all six factors are met, the intern is not considered an “employee” and is not entitled to minimum wages and overtime compensation. The California Division of Labor Standards Enforcement also applies this same six-factor test.
According to the DOL, the more an internship program is structured around a classroom or academic experience as opposed to the employer’s actual operations, the more likely the internship will be viewed as an extension of the individual’s educational experience, such as where a college or university oversees the internship program and provides educational credit.
The DOL further explains that the more the internship provides the individual with skills that can be used in multiple employment settings, as opposed to skills particular to one employer’s operation, the more likely the intern would not be classified as an “employee.”  In such cases, the intern does not perform the routine work of the business on a regular and recurring basis, and the business is not dependent upon the work of the intern.
However, according to the DOL, if the interns are performing productive work, such as filing, other clerical work, or assisting customers, then the fact that they may be receiving some benefits in the form of new skills or improved work habits will not exclude them from the FLSA’s minimum wage and overtime requirements because the employer benefits from the interns’ work.  Interns in California who do not meet the DOL requirements are employees and are entitled to minimum wage and overtime at the California minimum wage rate (currently $10.00 per hour.)
California employers should keep in mind that the California Department of Fair Employment and Housing’s prohibitions against discrimination and harassment under the Fair Employment and Housing Act also apply to unpaid interns.
For more information, visit http://www.wagehour.dol.gov and http://www.dfeh.ca.gov/res/docs/Publications/DFEH-162-2015.pdf


WORKPLACE LAW – New Salary Requirements for Exempt Employee Status

Question: I have two salaried employees in my business and I do not pay overtime when they work long hours.  I reviewed their job duties last year and feel comfortable with classifying these two managers as exempt employees. But, I run a low margin business and cannot afford to pay them more than is required to qualify for overtime exemption.  I know minimum wage effects this requirement, but I think a new federal law does too.  Can you explain how much these managers must earn to qualify as exempt from overtime?
Answer: Employers and Human Resource professionals know that proper classification of employees as exempt or non-exempt is one of the most complicated areas of the law.  You already recognize the most important lesson; one cannot simply pay an employee a salary and assume they are exempt from overtime.  Rather, to qualify as exempt from overtime, workers must satisfy tests related to both job duties and salary (i.e., performing work that qualifies for an exemption, and receiving sufficient pay).
The salary test has typically been easier to satisfy. Until recently, employers were generally safe if they paid exempt employees a salary that satisfied the California salary standard, which was significantly higher than the federal standard. Due to new Department of Labor regulations taking effect December 1, 2016, the federal salary requirement will soon be higher than California’s salary requirement, and employers must ensure their exempt employees meet the new federal salary test in order to remain exempt from overtime pay.
Currently California requires executive, administrative and professional (“EAP”) employees to earn at least double what they would receive for working forty hours per week at minimum wage, to qualify as exempt. At the current state minimum wage ($10/hr.), that is $800 per week, or $41,600 per year.    Under federal law, beginning December 1, 2016, exempt EAP employees in California will have to be paid the federal minimum salary of $47,476 per year ($913 per week) to remain classified as exempt employees.
California’s minimum wage will rise over the next few years, until it reaches $15 per hour in 2022.  As a result, the minimum salary for exempt status of EAP employees will continue to rise.  For now, ensure that your EAP employees’ salaries are at least $913 per week, but also consider using the new regulations as an opportunity for a broader review of your classification and compensation decisions.  Consider the following:

  • Audit ALL exempt positions – not just EAP employees. New regulations provide a sensible time to revise job descriptions, and to properly classify employees who may now be non-exempt.
  • If raises are required to maintain certain positions as exempt (now, and in the next few years), evaluate the overall impact on budgeting, and whether other options make better economic sense. These may include: paying hourly wages plus overtime; hiring additional workers to avoid overtime; or, reallocating job duties and potentially outsourcing some.
  • Develop communication plans explaining reclassifications. Address employee morale issues potentially arising from employees’ perceived loss of status and actual loss of pay.  Prepare to explain the reasons for raises (to satisfy the new requirements) or reclassification.
  • Train reclassified employees and their managers about timekeeping requirements, meal and rest period laws, recordkeeping, restrictions on telecommuting, and prohibit working “off the clock.”

WORKPLACE LAW – Voting Leave

Question: With the presidential primary elections coming up next month, some of my employees have asked if they can take off time during the workday to vote.  Can I just tell them that voting is a personal matter, and they have to take care of it on their own time?
Answer: Due to high interest in this year’s elections, it is anticipated that more employees than usual will be voting.  To encourage voting in elections, the majority of states, including California, have specific laws about an employer’s obligation to allow employees time off to vote.  California Election Code section 14000 sets forth several requirements with which all employers, regardless of size, must comply.  These requirements cannot be waived.
Pursuant to the statute, if an employee does not have enough time outside of working hours to vote at a statewide election and asks for time off to vote, the employer must allow the employee to take off enough working time that, when added to the voting time available outside of working hours, will enable that employee to vote.  The employer must provide this time off with pay, but there is a limit on the amount of paid time off the employer must allow.
The employer is required to allow the employee no more than two hours of paid time off to vote.  Additionally, the time taken must be either at the beginning or end of the employee’s regular work shift, whichever allows the most free time for voting and the least time off from the regular working shift.  For example, if an employee asks to take the two hours off in the middle of the day, the employer can turn down the request, but offer instead that the employee take the time at the beginning or end of the employee’s shift.
An employee must give the employer advance notice of his or her request for the time off and cannot just call the employer on the day of the election and say that he or she will be arriving late or leaving early because he or she wants to vote.  More specifically, if, on the third working day before election day, the employee knows or has reason to believe that time off will be necessary to be able to vote on election day, the employee must give the employer at least two working days’ notice that time off for voting is desired.  Since Election Day is generally on a Tuesday in California, that means that an employee must give his or her employer notice no later than the Friday before Election Day.
Not less than ten days before every statewide election, employers must post a notice setting forth the right of employees to time off with pay to vote.  Therefore, for the upcoming June 7 election, the notice must be posted no later than May 27, and for the election on November 8, it must be posted no later than October 28.  The notice can be found in various languages at the following website: http://www.sos.ca.gov/elections/time-vote-notices/.
Finally, if an employee is serving as an election official on Election Day, an employer must allow the employee the time off, without pay, and cannot discipline the employee because of that absence.


WORKPLACE LAW – New Workplace Smoking Laws

On May 4, 2016, Governor Brown signed 5 new bills related to smoking. Two of these laws change some of the rules relating to smoking in the workplace.
No smoking. In California, smoking of tobacco products in an enclosed space at a place of employment has been unlawful since January 1, 1995. Assembly Bill X2-7 (Mark Stone, D-Scotts Valley) expands Labor Code Section 6404.5 to prohibit smoking in owner-operated businesses, and to eliminate most of the exemptions that permitted smoking in certain work environments, such as hotel lobbies, bars and taverns, banquet rooms, warehouse facilities, and employee break rooms.
In expanding the no smoking provisions of Labor Code 6404.5, the Legislature stated its intention to prohibit the smoking of tobacco products in 100 percent of enclosed places of employment in California, thereby eliminating the need of local governments to enact workplace smoking restrictions in their local areas, and to reduce employee exposure to environmental tobacco smoke.
The law now defines an “owner-operated business” as a business that has no employees, independent contractors, or volunteers, in which the owner-operator of the business is the only worker. An employer or owner-operator of an owner-operated business is prohibited from allowing smoking at a place of employment or in an enclosed space.
Certain businesses are exempted from this law, including 20% of the guestrooms in a hotel, motel, or similar transient lodging establishment, retail or wholesale tobacco shops and private smokers’ lounges, cabs of motor trucks, theatrical production sites (if smoking is an integral part of the story in the theatrical production), and private residences, except for private residences licensed as family day care homes where smoking is prohibited by law.  This law is effective June 9, 2016.
Vaping and e-cigarettes.  SBX25 by Sen. Mark Leno, D-San Francisco, effective January 1, 2017, classifies e-cigarettes as tobacco products. Therefore, the provisions of Labor Code Section 6404.5 that prohibit smoking in enclosed spaces in the workplace will now extend to vaping and e-cigarettes. Under this new law, the definition of “tobacco products” includes electronic devices that deliver nicotine or other vaporized liquids to the person inhaling from the device, including, an electronic cigarette, cigar, pipe, or hookah.
Vaping groups criticized the reclassification of e-cigarettes and other vaping products as tobacco, saying the move will stigmatize a product that helps smokers quit. “That’s what is going to fuel the most anger, because the industry and its consumers don’t believe they are selling or using a tobacco product,” said Gregory Conley, president of the American Vaping Association, an industry-funded vaping advocacy group.
In a January 2016 nationwide “Smoking in the Workplace” survey conducted by the Society for Human Resource Management (SHRM), 53% of organizations responding to the survey permitted smoking in their workplaces. More than 85% of survey participants have smoking policies in place, and over 44% have policies that regulate vaping in the workplace. Since smoking in the workplace has been unlawful in California since 1995, it is prudent for employers to update their “no smoking” policies to include restrictions on the use of e-cigarettes.
Another new law, SB7X2 by Sen. Ed Hernandez, D-Azusa, makes it unlawful to sell tobacco to anyone under age 21, with an exemption for active military personnel. California is the second state in the nation to raise the smoking age from 18 to 21, although many California cities have raised the smoking age to 21.


WORKPLACE LAW - Harassment and Discrimination Policies Following April 1 FEHA Amendments

Question: Will the April 1, 2016 amendments to the Fair Employment and Housing Act regulations require me to make any changes to my company’s existing harassment and discrimination policy?
Answer: California’s Fair Employment & Housing Act (“FEHA”) protects employees and applicants against unlawful discrimination and harassment based on the following protected categories: race, religion, color, national origin, ancestry, citizenship, physical disability, mental disability, legally protected medical condition, genetic information, marital status, registered domestic partner status, sex, gender, gender identity, gender expression, sexual orientation, age, or military or veteran status.  The discrimination provisions of the FEHA cover employers with five or more employees, and the harassment provisions of the FEHA cover employers with one or more employees.
California’s Fair Employment & Housing Counsel (“FEHC”) issues regulations to implement the anti-discrimination and harassment laws contained in the FEHA.  The FEHC recently issued amendments to the FEHA regulations which took effect on April 1, 2016.  The amendments reaffirm existing law, and provide new guidance on employer requirements to prevent harassment, discrimination, and retaliation in the workplace.
Pursuant to the amendments, employers are now required to develop a written harassment, discrimination, and retaliation prevention policy.  The policy must do all of the following:

  • list all protected categories;
  • state that the law prohibits coworkers, supervisors and third parties from engaging in conduct prohibited by the FEHA;
  • create a complaint process that ensures that complaints (1) are treated confidentially to the extent possible, (2) receive a timely response, (3) receive an impartial, timely, investigation by a qualified individual, (4) are properly documented and tracked for progress, (5) receive appropriate options for remedial actions and resolutions, and (6) are timely closed;
  • provide a complaint mechanism that does not require the employee to complain directly to his or her supervisor;
  • instruct supervisors to report complaints to a designated company representative;
  • state that allegations of misconduct will be investigated in a fair, timely, and thorough manner;
  • state that confidentiality will be kept to the extent possible, but not state that the investigation will be completely confidential;
  • state that appropriate remedial measures will be taken if misconduct is found to have occurred; and
  • state that employees will not be subjected to retaliation for making a complaint or participating in an investigation.

Employers must provide the written policy to employees in a manner than ensures employees receive and understand the policy.  Employers should have employees acknowledge receipt of the policy in writing.  If 10% or more of the workforce at any facility or establishment speaks a language other than English, the employer must translate the policy into every language spoken by at least 10% of the workforce.
Employers should review their existing written harassment, discrimination, and retaliation prevention policies to ensure compliance with the FEHA regulation amendments.  If you do not have a written harassment, discrimination and retaliation prevention policy, you should develop a policy that complies with the new requirements.  In addition to the changes above that will directly affect employers’ written harassment, discrimination and retaliation prevention policies, the FEHA amendments cover other areas, including definitional changes, expanded supervisor training requirements, pregnancy disability leave policies, and a new mandatory poster for pregnancy disability leave.
For more information on the FEHA regulation amendments visit: http://www.dfeh.ca.gov/res/docs/DFEHNews/CAamendedFEHAregsEmployersApril_1_2016_Final.pdf


WORKPLACE LAW - Transgender Rights in the Workplace

Question: Transgender “bathroom laws” in other states have been headline news lately, but what do California employers need to know about transgender employee rights?
Answer: The California Department of Fair Employment and Housing (“DFEH”) recently issued new guidance for employers of transgender employees on complying with California’s primary anti-discrimination statute—the Fair Employment and Housing Act (“FEHA”).  The new guidance was issued following a lawsuit involving a transgender individual who had been offered a job on the condition that the person use bathroom facilities that were inconsistent with the person’s gender identity and expression.
According to the DFEH’s guidance, people who identify as transgender are protected by the FEHA, which prohibits harassment and discrimination in employment, including discrimination based on sex, gender, gender identity, gender expression, and sexual orientation.  The FEHA defines “gender expression” as a “person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth” and gender identity as “a person’s identification as male, female, a gender different from the person’s sex at birth, or transgender.”
The guidance explains that all employees have a right to safe and appropriate restroom and locker room facilities, including the right to use a restroom or locker room that corresponds to the employee’s gender identity, regardless of the employee’s assigned sex at birth.  Also, where possible, an employer should provide an easily accessible unisex single stall bathroom for use by any employee who desires increased privacy for any reason.  Importantly, no employee should be forced to use any particular bathroom as a matter of employer policy or due to continuing harassment.
As for employers’ dress codes and grooming standards, the FEHA prohibits an employer from denying an employee the right to dress in a suitable manner for that employee’s gender identity.  An employer who requires a dress code must enforce it in a non-discriminatory manner.  For example, a transgender woman must be allowed to dress in the same manner as a non-transgender woman, and her compliance with such dress code cannot be judged more harshly than non-transgender women.
The DFEH guidance further explains that a transgender person need not complete any particular step in a gender transition in order to be protected by the FEHA.  The guidance identifies two kinds of gender transition:  social transition and physical transition.  Social transition involves a process of socially aligning one’s gender with the internal sense of self (e.g., changes in name and pronoun, bathroom facility usage).  Physical transition refers to medical treatments an individual undergoes to physically align their body with their internal sense of self (e.g., hormone therapies, surgical procedures).
Finally, according to the guidance, an employer should not ask employment applicants any questions designed to detect a person’s sexual orientation or gender identity, such as asking about marital status, spouse’s name, or relation of household members to one another.  The guidance also advises employers against asking questions about a person’s body or whether they plan to have surgery, as such information is generally protected by the Health Insurance Portability and Accountability Act (“HIPAA”).
Although the DFEH’s recent guidance for California employers on transgender employees is not codified as statutory law in California, prudent employers will adopt policies and procedures that are consistent with the DFEH guidance and the FEHA to prohibit all forms of workplace harassment and discrimination.


WORKPLACE LAW – New Pregnancy Disability Leave Poster Changes April 1, 2016

Question: I own a small business in California with 3 employees.  My main office in Nevada has 6 employees.  I heard that there is a new poster describing the rights and obligations of pregnant employees in California. Do I have to post this poster in my workplace?
Answer: The Fair Employment and Housing Council (“FEHC”), the agency that issues regulations to implement California’s employment anti-discrimination laws, recently created a new pregnancy disability leave (“PDL”) poster describing the rights and obligations of pregnant employees. Employers who are covered by the Fair Employment and Housing Act (“FEHA”) are required to post this poster on or before April 1, 2106. Under the new FEHC regulations, which will also go into effect April 1, 2016, your business will meet the expanded definition of the term “covered employer,” and you will need to post the poster even though you only have 3 employees in California.  This poster is available online at http://www.dfeh.ca.gov/Publications_Publications.htm.
Under the FEHC regulations, the term “covered employer” is defined as “any person or individual engaged in any business or enterprise regularly employing five or more individuals.”  Under the new regulations, the term has been expanded to make it clear that employees located outside of California are also counted for purposes of determining whether an employer meets the five-employee threshold.  Therefore, even though you only employ 3 employees in California, you are required to comply with the FEHA, the new FEHC regulations and PDL posting requirements.
Under the new FEHC regulations, all covered employers must post the same PDL poster on or before April 1, 2016. The poster describes the rights and obligations of pregnant employees and contains information about how to contact the Department of Fair Employment and Housing (“DFEH”) to file a complaint.  This is a change from the old regulations which provided two separate PDL posters, one for employers with fewer than 50 employees who were not subject to the California Family Rights Act (“CFRA”), and another poster for employers with 50 or more employees.
In terms of content, the PDL poster remains largely unchanged.  The poster informs employees that California law protects employees against discrimination or harassment because of pregnancy, childbirth or any related medical condition. It states that employees disabled by pregnancy must be provided with PDL of up to 4 months (the working days the employee would normally work in one-third of a year, or 17-1/3 weeks), and the employer must return the employee to the same job or, in certain instances, to a comparable job when she is no longer disabled by her pregnancy.
The poster must be located in a conspicuous place where employees will view it in the workplace, and it must be large enough to be easily read.  The poster must also be translated into every language spoken by at least 10% of the employer’s workforce, and employers are required to give an employee a copy of the poster as soon as practicable after the employee tells the employer of her pregnancy.
In addition to this new posting requirement, the new FEHC regulations also include new substantive policy requirements, as well as new requirements for conducting discrimination and harassment training. All “covered employers” should familiarize themselves with these new regulations and make any necessary policy changes as soon as practicable.


WORKPLACE LAW - Office Politics

Question: With all that is going on with the political scene this year, I would like some guidance. Can I encourage employees to support a certain candidate for President? Can I make hiring decisions based on an applicant’s party affiliation or support for a candidate?
Answer: California law provides some specific guidance for employers in the area of politics. One section of the Labor Code states that no employer shall make, adopt, or enforce any rule, regulation, or policy forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office, or controlling or directing or tending to control or direct the political activities or affiliations of people. Another section of the Labor Code prohibits employers from coercing or influencing, or attempting to coerce or influence, employees to either follow or refrain from following any particular course or line of political action or political activity through threats of discharge or loss of employment. In other words, an employer cannot control its employees’ political views or fire or threaten to fire anyone for their political views. These laws apply not only to employees, but to applicants as well.
Employers must also be alert to discussions employees may be having in the office about politics. This political season sensitive issues like immigration, electing a woman as President, and the ages of candidates are at the forefront. Many individuals feel passionately about these matters and may make unguarded remarks. Others may find quotes from politicians amusing and may repeat them at work.
Employers must remember that in California, they have an affirmative obligation to ensure that there is no harassment or discrimination in the workplace based on protected categories under the California Fair Employment and Housing Act. The list of classes that are protected from harassment and discrimination is very long and includes sex, gender, age (40 and over), national origin, race, ancestry, and religion. If an employee, particularly a supervisor, states that he or she is for or against a certain candidate, employees could perceive that individual as supporting discriminatory views. If an employee quotes language from certain candidates, it could violate an employer’s policy prohibiting verbal harassment in the workplace. It is not a defense for an employee that a political candidate made the statement.
If an employee is expressing his or her political views in a way that could be viewed as discriminatory or harassing, the employer must speak to the individual and explain that the employee is free to support the political candidates and views that he or she chooses, but that the way in which he or she is expressing those views can be perceived as discriminatory or harassing, which violates the employer’s policy.
Another area where an employer can draw the line is if employees are spending their work time promoting a particular political candidate or view. An employer can have policies that require that during working hours, employees engage in their work and not in promoting political causes.
Although an employer cannot restrict an employee’s political views and activities, it must be vigilant that employees not express their views in a way that could be discriminatory or harassing to others at work.


WORKPLACE LAW - Guns in the Workplace, An Employer’s Balancing Act

Question: I own a small business, and an employee recently informed me that she brings her gun to work with a valid concealed carry permit. She seems like a responsible gun owner, but I am uncomfortable with a gun in my business. Our employee handbook does not mention guns. Can I prohibit an otherwise legal gun from my workplace? If I let her carry at work, do I need to inform her co-workers?
Answer: This is an issue that many business owners and HR professionals struggle with. In California the law is relatively straightforward, but the practical concerns are challenging. You likely have employees with vastly divergent and passionate opinions regarding whether guns should be permitted at work, whether they make the workplace safer, and whether co-workers should be informed.
Keep in mind that employers are required to provide a safe workplace for all employees. It can be argued that guns in the workplace make the workplace safer, and the opposing argument is also viable. It is important for each business owner to adopt a policy that expressly prohibits or permits weapons at work, so the rules and expectations are clear.
If there is no workplace policy prohibiting weapons at work, for private businesses on private property the default rule allows any employee to carry a loaded firearm, if otherwise legally permitted (e.g. the owner is of legal age, and is not precluded due to prior felony convictions). There are numerous exceptions, and if your business is located in an area where possession of firearms is otherwise prohibited under local or federal law, that prohibition applies. Other exclusions include carrying guns at schools, during picketing activities, or at a bar.
Because you do not have a policy prohibiting guns at work and you are uncomfortable with your employee legally carrying a gun to work, you should consider instituting a weapon possession policy as part of a broader safety policy. Employers are permitted to ban all weapons from the workplace, including guns. Your safety policy should prohibit workplace violence and the possession or distribution of drugs or alcohol. Most companies follow Johnny Cash’s admonition, “And he heard again his mother’s words, don’t take your guns to town son, leave your guns at home” and ban the possession or distribution of weapons, explosives and firearms in their safety policies.
Evaluating firearm policies also provides an opportunity to review your business’ security policies and protocols and your company’s emergency response and evacuation plans.
If you are implementing a ban on weapons, also consider policies designed to enforce the ban, including a legally compliant policy permitting the search of an employee, their desk, locker and/or personal belongings at the worksite. Also consider whether to extend the ban to cars on company property, and implementing a policy permitting the search of such vehicles.
If you decide to permit legal firearms on company property, under current law you do not have an obligation to inform employees of a co-worker’s decision to carry. However, you should carefully consider how other employees would react to discovering it on their own. With broad legal discretion employers should adopt safety and weapon policies that promote a safe workplace, considering the inherent security risks of their business, the impact on employee safety, and the employer’s risk assessment.