WORKPLACE LAW - Travel Time Pay

 

Question: Due to the U.S. Open traffic this weekend I expect it will take my employees longer to make deliveries and perform other tasks outside the office during the work day.  Do I have to pay them for sitting in traffic?

 

Answer: Yes, time spent by your non-exempt employees performing work tasks that require travel is compensable, even when it takes your non-exempt employees longer to perform their tasks because of traffic.  Additionally, if they end up working more than 8 hours in a day because of that travel time, they will be entitled to overtime pay.

 

The Industrial Welfare Commission Orders define “hours worked” as the “time during which the employee is subject to the control of an employer.” For example, time spent commuting to and from work is not considered “hours worked,” and a commute made longer due to traffic is not compensable.  However, when employees are on the road making deliveries and performing other employer directed tasks, they are under the employer’s control, and if traffic causes these employees to take longer to perform these tasks, all of that time is compensable.  California law does not distinguish between hours worked during and outside the employer’s "normal" business hours.

 

It should also be noted that under state law, if an employer requires an employee to attend an out-of-town business meeting, training session, or any other event, whether the outing involves same day or overnight travel, the employer is obligated to pay for the employee's time in getting to and from the location of that event. Time spent driving, or as a passenger on an airplane, train, bus, taxi cab or car, or other mode of transportation, in traveling to and from this out-of-town event, and time spent waiting to purchase a ticket, check baggage, or get on board, is time spent carrying out the employer's directives and is compensable.  However, time spent taking a break from travel in order to eat a meal, sleep or engage in purely personal pursuits not connected with traveling or making necessary travel connections (such as, for example, spending an extra day in a city before the start or following the conclusion of a conference to sightsee), is not compensable.

 

The rate at which the travel must be paid depends upon the nature of the compensation agreement. If the employer has agreed to pay a fixed hourly rate of pay for any work performed, then travel time must be paid at that regular hourly rate, and if overtime is incurred, the required overtime rate based on the regular hourly rate must be paid.  However, an employer may establish a separate rate of pay for hourly employees for travel time as long as advance notification has been provided to the employees, and provided the rate does not fall below the statutory minimum wage.

 

In addition to travel time, employers are required to reimburse employees for necessary expenses incurred in connection with employer-required travel. The most common form of employee expense reimbursement related to travel is mileage reimbursement when the employee uses the employee’s own vehicle for work related travel. The safest approach is to use the IRS mileage reimbursement rate.  The 2019 rates can be found at https://www.irs.gov/newsroom/irs-issues-standard-mileage-rates-for-2019

 

As we welcome golf fans to the Peninsula employers need to be aware of potential employment related issues caused by the traffic and plan accordingly.


California Workplace Privacy Rights

Question: What privacy rights do my employees have and how can I comply with the laws protecting privacy rights?

Answer: In light of recent data breaches, people are increasingly concerned with protecting their privacy rights. California employees are no exception. The California Constitution identifies certain inalienable rights for citizens, including “pursuing and obtaining safety, happiness, and privacy.” Additionally, employees in the state are covered by statutes that protect their privacy inside and outside of the workplace. To comply with these laws, employers must be aware of the state’s stringent privacy rules and should establish policies designed to comply with the law.

Employers have a non-waivable duty to protect personal employee information. Businesses that maintain personal information about a California resident are required to protect that information from, among other things, unauthorized access, use, or disclosure. Personal information includes, but is not limited to, an individual’s name, social security number, driver’s license or identification card number, financial account number, medical information, health insurance information, and username or email address in combination with a password. Additionally, employers have a duty to disclose security breaches of computerized personal information. Employers who breach these duties may be liable for monetary damages.

California employers should exercise care in connection with workplace monitoring, such as video surveillance and listening to employee telephone conversations. Employers are prohibited from video monitoring work areas where employees reasonably expect privacy such as dressing rooms, locker rooms, showers, toilet facilities, and possibly even break or lunch rooms. Employers cannot monitor or record personal employee phone calls or calls made between parties in California without the parties’ consent, except in limited situations. When employers have a legitimate business purpose for video or telephonic monitoring, it is a best practice to disclose the monitoring to employees in a handbook, memo, sign, or by other means that will be understood by employees.

Additionally, California imposes limits on conducting background checks such as credit or criminal history reports. An employer may not ask an outside agency to perform a background or credit check on an applicant or employee in California without first giving proper notice to the individual, obtaining the individual's consent, and giving the individual an opportunity to request a copy of the report. The employer's notice must be clear and conspicuous on a form that contains only the disclosure. California law also requires new consent each time an investigative report is sought during employment if the report is for purposes other than suspicion of wrongdoing or misconduct. California recently enacted a “ban-the-box” law that prohibits employers from asking job applicants about their criminal history until after a conditional offer of employment is made. Before taking any adverse employment action based on a report, employers must follow very specific procedures in writing.

To ensure compliance with California’s employee privacy laws, employers should implement workplace policies that communicate the employer’s practices and business reasons for them, and obtain advance written employee consent when required by law. Employers should also implement appropriate safeguards for storing, using, and disposing of private employee information. Finally, employers should not infringe on employee privacy except where necessary to serve the employer’s legitimate business purposes, and should choose the least intrusive means available to accomplish that purpose.


WORKPLACE LAW - Risks of Using Social Media to Screen Applicants

Question: As a small employer, I do not perform pre-hire background checks, but I have been google-searching candidates and looking at their Facebook profiles before making hiring decisions. I am shocked by the amount of information available on the internet. Are these types of screenings risky?

Answer: Yes. To illustrate why employers should be wary of performing these types of pre-employment searches, consider the appropriateness of asking the following questions during a job interview: “Are you pregnant?” “With what gender do you identify?” “Do you have a criminal record?” “Have you had any recent medical issues?” While most employers quickly recognize that asking an applicant such questions is unlawful, few recognize that performing a pre-employment social media search may elicit the same type of information.

According to a 2017 national survey conducted by the job search website CareerBuilder, approximately 70% of employers use social media to screen candidates before hiring, up from 60% in 2016. According to the survey, while 60% of employers who use social media screening are looking for information that supports the candidate’s qualifications for the job, 50% are looking to determine whether the candidate has a professional online persona, and 24% are looking for a reason not to hire a candidate. Although the statistics imply that a majority of employers are using pre-hire social media searches for reasons that appear to make sense, such searches can present significant risks from a legal standpoint.

A social media search often reveals information about the candidate’s protected characteristics that employers are not permitted to consider in making hiring decisions, and about which the employer would have no knowledge if the search had not been conducted. If the employer does not hire the candidate, the candidate can argue that it was because of the protected characteristics that the search revealed, and the employer is placed in the difficult position of proving that its decision was based on a legitimate, non-discriminatory reason.

To protect itself from a claim of discrimination, an employer should limit requests for information during the pre-employment process to details essential to determining a person’s qualifications to do the job, with or without reasonable accommodations. California law specifically prohibits employers from requesting or considering information about an applicant or employee that would disclose the individual’s membership in a protected classification (i.e. national origin, religion, age, sexual orientation), except in very limited circumstances where the characteristic is related to a bona fide occupational qualification. The Department of Fair Employment and Housing (DFEH) publishes guidance on what employers can and cannot ask applicants and employees, which is available at https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2017/06/DFEH_PEI-Guidelines.pdf. In terms of a social media search, this means that employers should limit themselves to looking on professional networking websites like LinkedIn or BranchOut, and avoid sites like Facebook, as well as general Google searches.


WORKPLACE LAW - Cell Phones at Work

QUESTION: My company restricts employee use of personal cell phones while on duty. This policy does not stop employees from using their phones to text, talk, take pictures, and post on social media while at work. What can I do to curb cell phone use during the work day?

ANSWER: It is important to implement and enforce common sense written policies for employees’ use of personal cell phones and social media while at work. The details of the policies will depend on the size of your business, your company culture, and your area of industry. For example, some employers allow employees limited use of cell phones while on duty to allow them to check on childcare or other urgent and time sensitive personal matters. For those employers, it is important to be vigilant in making sure employees are not abusing this privilege.

However, some employers impose more restrictive policies because cell phone use while on duty can detrimentally interfere with delivery of services. For example, in the healthcare field, it makes sense to prohibit personal cell phone use during working hours to protect patient privacy and ensure the safe and efficient delivery of health care. In the restaurant industry, employers often restrict employee cell phone use to ensure good customer service. In these instances, it is recommended that the employer require employees to leave their cell phones in a locker or other location, and not carry them on their person or have them at their workstation. However, employees must be permitted to use their cell phones while on rest breaks and meal periods. It is also important that these employers tell employees that in cases of emergency, their family members may call the business to reach them without delay.

Regardless of whether you decide to allow limited use of personal cell phones during the workday, or preclude such use altogether except during rest and meal periods, you should implement written policies that clearly set forth your expectations for both cell phone and social media use. Employees who violate the policies should be appropriately disciplined.

A cell phone use policy should include:
• Specifications on if and when personal cell phone use is permitted, and whether cell phones are allowed in work areas.
• Where limited cell phone use is permitted, requirements that all ringtones be set to silent and that all calls be taken away from work areas.
• Restrictions on use of the cell phone camera, video, and recording features when on duty and on work premises.
• Prohibition on use of personal cell phones when off duty for work-related purposes unless authorized by a manager. This is because time spent off-duty by a non-exempt employee using a personal cell phone for work is compensable if the employer knows or should know that the employee is using his or her personal cell phone for such purposes.
• Restrictions on social media posts that identify the employer or imply the views expressed are those of the employer.
• Prohibitions on checking personal Facebook or other social media sites, and posting on these sites when on duty.
Having written policies in place that clearly detail permissible use of employees’ personal cell phones while at work and use of social media, and enforcing the policies, will assist you in curbing misuse of personal cell phones and protecting your company in the event of a lawsuit.


WORKPLACE LAW - Sexual Harassment and Defamation

Question: In my job as a supervisor, I received a complaint that one of the employees I supervise was sexually harassing a co-worker. The accusations were descriptive and lewd. I reported the complaint to the owner of the company. Now the accused employee is very angry with me and is threatening to sue me for defamation. I was just doing my job but now I am concerned. Does the law protect me?

Answer: Generally, in order to prove defamation, the accused employee must prove that you made a false and unprivileged statement of fact about him/her to a third party, and that the accused employee was damaged by your statement.

California law provides specific “privileges” that provide a defense to a defamation action. One new privilege addresses the situation you are facing.

On June 25, 2018 the California Legislature unanimously passed AB 2770, and Governor Brown signed the bill into law on July 9, 2018. In response to the #MeToo and #WeSaidEnough movements demanding action to address the ongoing prevalence of sexual harassment, the Senate Judiciary Committee, in conjunction with the Senate Select Committee on Women, Work and Families, held informational hearings in early 2018. These hearings sought to identify legal and policy reforms needed to transition California toward a culture free of harassment. The Legislature determined that the state’s defamation laws sometimes deter victims, witnesses, and former employers from making complaints or communicating information about harassers to others. As a result, AB 2770 was introduced and received widespread support from the business community.

AB 2770 makes three types of communications related to sexual harassment privileged, meaning they cannot form the basis for a defamation lawsuit, as long as the communications are made without malice. First, the bill protects a non-malicious complaint about sexual harassment communicated by an employee to an employer. Second, non-malicious communications by the employer to “interested persons,” such as an investigatory agency, witnesses, investigators, human resources professionals, co-workers, and other persons involved with resolving the sexual harassment complaint are protected. Finally, AB 2770 protects non-malicious communications, in response to an inquiry, in which a former employer tells a prospective employer that the former employer would not rehire the former employee based on the former employer’s determination that the employee engaged in sexual harassment. While many employers’ policies and human resources best practices prohibit providing this type of information to prospective employers, the Legislature specifically added this protection for employers who may choose to disclose such information, without malice, to a prospective employer.

So how does one know if a communication is made “without malice?” As interpreted by California courts, a malicious communication is one that is either motivated by hatred or ill will, or is made without reasonable grounds for believing that the matter asserted is true. AB 2770 protects only communications that are made “without malice.” This means that in the context of sexual harassment allegations and investigations, victims and witnesses may make complaints, but false accusations made out of spite or in complete disregard for the truth will not be protected.
One stated goal of this new law is to extend California’s public policy protecting employees from sexual harassment. The text of the bill is available on the California Legislature’s website:
https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180AB2770


WORKPLACE LAW - Update to Employer Response to Immigration Audit

Question: I read in a recent Workplace Law article that I cannot voluntarily consent to an ICE agent accessing nonpublic areas of the worksite or employee records without a warrant. Is that still true?

Answer: Not entirely. Due to a July 2018 preliminary injunction issued by the U.S. District Court of the Eastern District of California, employers may allow ICE agents to access nonpublic areas of the workplace and access employee records without a warrant or subpoena.

As background, effective January 1, 2018, California’s Immigrant Worker Protection Act (AB 450) imposed new duties on employers facing worksite immigration inspections. AB 450 provides that an employer will be fined up to $10,000 per violation if it engages in the following:

• voluntarily consenting to ICE agents accessing any non-public areas of a worksite unless the agents present a judicial warrant;
• voluntarily allowing ICE agents to access, review, or obtain any employee records unless the agents present a Notice of Inspection of Forms I-9, and a subpoena, or a judicial warrant requiring compliance; and
• reverifying the employment eligibility of any current employee unless required by federal law.

In response to AB 450, the federal Department of Justice sued the State of California arguing that AB 450 forced California employers to choose between following federal law or state law at the risk of facing state penalties, and as such prevented federal law from being followed. On July 5, 2018, the U.S. District Court of the Eastern District of California granted a preliminary injunction prohibiting California from fining employers who voluntarily grant ICE access to their worksite or employee records, stating, “The Court finds that a law which imposes monetary penalties on an employer solely because the employer voluntarily consents to federal immigration enforcement's entry into nonpublic areas of their place of business or access to their employment records impermissibly discriminates against those who choose to deal with the federal government."

The Court did not block another provision of AB 450 that requires employers to notify employees concerning I-9 form inspections. Employers must still provide employees with notification of an inspection of I-9 forms or other employment records by federal immigration authorities, within 72 hours of receiving notice of the inspection. The notice must contain the following:

(1) name of the immigration agency conducting the inspection;
(2) date the employer received notice of the inspection;
(3) nature of the inspection; and
(4) a copy of the notice of inspection.

Within 72 hours of receipt of the inspection’s results, employers must provide each affected current employee with the inspection results, and give each affected employee a second written notice setting forth:

(1) all deficiencies identified in the inspection results;
(2) the time period for correcting any deficiencies;
(3) the time and date of any meeting with the employer to correct deficiencies; and
(4) notice that the employee has a right to representation during the meeting with the employer.

The Court’s ruling is a preliminary injunction and will likely be appealed. For now, employers will not be fined or be in violation of California law if they grant ICE agents access to nonpublic areas of the worksite without a warrant or subpoena, or allow them to access employee records. However, employers may still require a warrant before admitting ICE agents to nonpublic areas or before granting access to employee records.


WORKPLACE LAW - Expanding Flexibility in Employee Handbooks

Question: I am drafting an employee handbook for my business. I keep reading about new NLRB guidance on employee handbooks. Does that apply to non-union employers in California?

Answer: On June 6, 2018, the General Counsel for the National Labor Relations Board (“NLRB”) issued guidance on the legality of certain handbook rules. The guidance applies to private-sector employers in union and nonunion workplaces. It expands upon the NLRB’s recent shift towards affording employers more deference and flexibility in crafting employee handbook policies.

In recent years, the NLRB has imposed significant limitations on handbook policies in union and non-union workplaces, even if the policies were facially neutral and based on legitimate business reasons. The NLRB determined the legality of policies based on whether workers could “reasonably construe” them as limiting their rights under the National Labor Relations Act (NLRA) to engage in protected concerted activity, i.e., working together to improve their pay and working conditions. However, the NLRB’s December 2017 Boeing Company decision signaled a substantial shift to a standard of evaluating the nature and extent of the potential impact of employer policies on NLRA rights, and the employer’s legitimate justifications associated with the policies.
The guidance expands on the Boeing decision and describes three categories of workplace rules: (1) Rules that are Generally Lawful; (2) Rules Warranting Individualized Scrutiny; and (3) Rules that are Usually Unlawful.

1) Generally Lawful Rules
The NLRB will now generally hold rules on the following to be valid:
• Civility, including prohibitions on rude, condescending, or socially unacceptable behavior and negative or disparaging comments about employees or customers;
• Prohibiting photography and recording due to concerns for security and protection of proprietary, confidential, and customer information;
• Insubordination;
• Disruptive behavior;
• Protecting confidential, proprietary, and customer information;
• Prohibiting the use of employer logos or intellectual property;
• Prohibiting defamation or misrepresentation of company products, services, or employees;
• Requiring authorization to speak on behalf of the company; and
• Banning disloyalty, nepotism, or self-enrichment.

2) Rules Warranting Individualized Scrutiny
Rules on the topics including the following may be subject to NLRB scrutiny on a case-by-case basis:
• Conflict-of-interest if overbroad;
• Banning off-duty conduct that might harm the employer;
• Confidentiality if overbroad;
• Prohibiting disparagement or criticism of the employer (as opposed to disparagement of employees);
• Regulating use of the employer's name (as opposed to use of the employer's logo or trademark);
• Restricting speaking to the media or third parties (as opposed to speaking to the media on the employer's behalf); and
• Prohibiting making false or inaccurate statements (as opposed to defamatory statements).

3) Unlawful Rules
Rules on the following are usually unlawful:
• Confidentiality prohibiting employees from discussing wages, benefits, working conditions, or other terms of employment;
• Prohibiting joining outside organizations or voting on matters concerning the employer.

The guidance provides needed clarity to employers who are drafting handbook policies, and instructs NLRB regional offices that ambiguities in handbook rules can no longer be interpreted against the employer.

In addition to the NLRB guidance, several bills are pending in the State Legislature that may affect your policies depending on the nature of your business. You may want to wait to finalize your handbook until after September 30, 2018, the last day the Governor can sign or veto bills.


WORKPLACE LAW - Options to Consider When an Employee Gives Notice

Question: One of my employees recently gave his two-weeks’ notice after informing me that he is going to work for a competitor. Do I have to let him continue to work for two more weeks or can I request that he leave immediately?

Answer: It depends. If the employee is an at-will employee, you can generally let him go at any time, with or without notice, for no reason at all or for any reason that is not unlawful. However, if the employment relationship is not at-will, you may be required to allow him to work through the end of the notice period. Before sending the employee home with his final paycheck, it is imperative to determine whether he is at-will.

While California’s Labor Code contains a presumption that all employees are employed at-will, there are exceptions to this law. Many public-sector employees have certain due process protections. Union employees are covered by collective bargaining agreements that may dictate the termination process. Some employees have written employment contracts requiring pre-termination notice or “good cause” for termination. If an employer has, for example, made promises of continued employment, such promises could overcome the presumption of employment at-will.
To determine whether an employee is at-will, an employer should review its policies, any collective bargaining agreements, and the employee’s employment contract, if any. In more complex cases, consultation with an experienced employment attorney may be necessary.

If you determine that the employee is an at-will employee, you generally have three options:
• Allow the employee to work through the end of the notice period;
• Dismiss him immediately; or
• Accept the resignation effective at the end of the notice period, but continue to pay the employee through the originally noticed resignation date, and inform him that he is not to report to work.

Each of these options carries important consequences. While letting the employee finish out the notice period may be the best way to ensure a smooth transition, this is not always the case. For example, since this employee is leaving to work for a competitor, continuing to employ him during the notice period might provide him with the additional time to obtain confidential information from your business or recruit your valuable employees or clients to leave your business. Therefore, you may want to ensure that the employee leaves the workplace as soon as possible, whether you make the termination effective immediately or pay him through the notice period.

You should also consider that not paying the employee through the notice period will effectively turn a voluntary quit into an involuntary termination from an unemployment insurance (UI) eligibility standpoint, likely allowing the departing employee to collect unemployment benefits to which he may not otherwise be entitled. This could have a negative effect on your UI reserve account and cause your UI rates to go up. Paying the employee through his originally noticed resignation date will typically prevent this result.

You should also consider protecting your company’s confidential information. In California an employer cannot prevent an employee from working for a competitor. However, it can protect its proprietary information by having employees sign confidentiality agreements that are effective during and after the individual’s employment. If this employee has signed such an agreement, you should give him a copy and remind him of his obligations under the agreement.


WORKPLACE LAW - Heat Illness Prevention

QUESTION: My company has a Heat Illness Prevention Plan in accordance with Cal/OSHA requirements, but the required trainings take time out of the day when my employees could be working. Is heat illness really that serious?
ANSWER: Heat illness can progress to heat stroke and be fatal, especially when emergency treatment is delayed. California law requires that employers develop, put into writing, and implement effective procedures for a Heat Illness Prevention Plan. Employers must also train all employees and supervisors about identifying heat illness because being prepared can save lives.
The California Division of Occupational Safety and Health (“Cal/OSHA”) provides several real life examples of the dangers of heat illness and the importance of being prepared. For example, an employee working on a rooftop began to feel weak and was acting confused. The coworkers, trained to recognize the signs and symptoms of heat stroke and emergency response procedures, quickly removed the employee from the roof, sprayed him down with water, and called 911. When the employee arrived at the hospital, his internal body temperature was 106.7 degrees Fahrenheit, his heart rate was 122 bpm, and he was diagnosed with heat stroke. Although the employee survived, he had significant damage to his kidneys, liver, and muscles. While this is an extreme example, it does describe how serious heat illness can quickly become.
Employers with employees who work outdoors are required to take the following 4 steps to prevent heat illness:
(1) train all employees and supervisors about heat illness prevention;
(2) provide enough fresh water so that each employee can drink at least 1 quart per hour, and encourage them to do so;
(3) provide access to shade and encourage employees to take a cool-down rest in the shade, with pay, for at least 5 minutes – they should not wait until they feel sick to cool down; and
(4) implement a written heat illness prevention plan in English and in the language understood by the majority of the employees.
Employee trainings should include the following:
(1) the environmental and personal risk factors of heat illness;
(2) the employer’s procedures for complying with the heat illness prevention regulations;
(3) the importance of drinking water;
(4) the importance of acclimatization (adjusting from cooler to warmer conditions and vice versa);
(5) the types, signs, and symptoms of heat illness;
(6) the importance of immediately reporting the signs and symptoms of heat illness to a supervisor;
(7) the employer’s procedures for responding to symptoms of heat illness, and
(8) the employer’s procedures for contacting emergency service providers and transporting employees for emergency services as necessary (such as how to provide directions to the worksite for emergency medical personnel.)
Additional rules apply when the temperature is 95 degrees Fahrenheit or higher.
Further, Cal/OSHA is in the process of proposing heat illness and injury prevention standards for indoor worksites based on environmental temperatures, work activity levels, and other factors. The proposal is due by January 1, 2019, so check back next year for additional requirements that apply to indoor worksites.
In preparation for the summer heat, employers should make sure their Heat Illness Prevention Programs are up to date and ensure all supervisors and employees are properly trained. The heat illness prevention standards set forth in the California Code of Regulations can be found at https://www.dir.ca.gov/Title8/3395.html.


WORKPLACE LAW - New Regulations Regarding National Origin Discrimination

Question: My business employs people from diverse backgrounds and cultures. I heard California has a new law about national origin discrimination. What do I need to know about this?
Answer: Although California’s Fair Employment and Housing Act (FEHA) already sets forth strict rules prohibiting harassment, discrimination, and retaliation against applicants and employees based on protected classes, including national origin, regulations amending the FEHA were recently enacted expanding national origin protections. These regulations, which are effective July 1, 2018, protect undocumented applicants and employees to the same extent that they protect any other applicant or employee.
The regulations require that employers refrain from intentional discrimination and harassment based on national origin, and from policies and practices that disparately impact applicants and employees based on national origin, that cannot be justified by business necessity and/or for which a less discriminatory alternative could accomplish the business purpose equally well.
The regulations broadly define “national origin” to include an individual’s or ancestors’ actual or perceived:
• Place of birth or geographic origin, national origin, or ethnicity;
• Physical, cultural or linguistic characteristics of a national origin group;
• Marriage to or association with persons of a national origin group;
• Parental relationship with a person of a national origin group;
• Tribal affiliation;
• Membership in or association with an organization identified with or seeking to promote the interests of a national origin group;
• Attendance or participation in schools, churches, temples, mosques or other institutions generally used by persons of a national origin group;
• Name that is associated with a national origin group;
• Language and/or accent.
The regulations enumerate policies or practices that may constitute unlawful national origin discrimination:
• Language restriction policies unless the restriction is justified by business necessity, narrowly tailored, and the employer has notified employees of the restriction and the consequences for violating it. English-only policies are never permitted during non-work time, such as meal and rest breaks. Customer or co-worker preference is not considered business necessity.
• Accent based discrimination unless the employer can show the accent materially interferes with the applicant’s or employee’s ability to do the job.
• English proficiency discrimination unless the employer can show that the proficiency requirement is necessary for effective performance of the position, i.e., the employer may require language proficiency necessary to fulfill job duties.
• Height and weight requirements where these characteristics are associated with national origin. In that case, the employer must show that the requirements are job related and consistent with business necessity, and that the purpose of the requirement cannot be met by less discriminatory means.
• Recruitment and job segregation based on national origin, i.e., recruiting, and assigning positions, facilities or geographical areas of employment based on national origin.
• Immigration-Related practices such as inquiries about an applicant’s or employee’s immigration status except to comply with federal law.
• Driver’s licenses requirements unless possession of a driver’s license is required by law or by the employer for a legitimate business reason such as when driving is a job duty.
• Human trafficking involving employers using force, fraud, or coercion to compel employment on the basis of national origin.
Employers should review their written policies and workplace practices to be certain they comply with these new regulations. The new regulations can be viewed on line at: https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2018/05/FinalTextRegNationalOriginDiscrimination.pdf


WORKPLACE LAW - Employer Response to Immigration Audits

Question: What should I do if there is an ICE raid at my business?
Answer: U.S. Immigration and Customs Enforcement (“ICE”) has increasingly targeted California businesses through worksite enforcement audits. For “raids” at the workplace, employers face the difficult task of complying with conflicting state and federal laws or risking a fine of up to $10,000 for each violation. To comply with these laws, employers and their employees need to know how to respond to an ICE visit.
Effective January 1, 2018, California’s Immigrant Worker Protection Act (the “Act”) imposes new duties on employers concerning worksite immigration inspections. Specifically, employers cannot:
(1) voluntarily consent to an ICE agent accessing nonpublic areas of the worksite unless the agent provides a judicial warrant;
(2) voluntarily consent to an ICE agent accessing, reviewing, or obtaining employee records unless the agent provides a subpoena, judicial warrant, or Notice of Inspection of I-9 Employment Eligibility Verification forms (“I-9 Forms”); or
(3) reverify a current employee’s employment eligibility unless required to do so by a memorandum of understanding.
The California Department of Industrial Relations defines a nonpublic area as “one that the general public is not normally free to enter or access,” such as an office or an area clearly designated as restricted to employees. However, federal agents are not required to comply with the Act. Therefore, while neither an employer, nor anyone acting on behalf of the employer, may voluntarily provide consent to grant immigration agents access to nonpublic areas, the Act does not preclude immigration agents from accessing nonpublic areas of the workplace. An employer is not required to physically block or interfere with an ICE agent to show that voluntary consent was not provided.
The Act also requires employers to notify employees of an inspection of I-9 Forms or other employment records by federal immigration authorities within 72 hours of receiving notice of the inspection. The notice provided to employees must be in the language normally used to communicate with them and must contain the following information: (1) name of the immigration agency conducting the inspection;
(2) date the employer received notice of the inspection;
(3) nature of the inspection; and
(4) a copy of the notice of inspection.
Within 72 hours of receipt of the inspection’s results, employers must provide each affected current employee with the inspection results, and give each affected employee a second written notice setting forth:
(1) all deficiencies identified in the inspection results;
(2) the time period for correcting any deficiencies;
(3) the time and date of any meeting with the employer to correct deficiencies; and
(4) notice that the employee has a right to representation during the meeting with the employer.
The second written notice must relate to the affected employee only.
Employers should designate specific individuals who are authorized to respond to immigration enforcement visits, and train those individuals in how to tactfully respond to immigration enforcement visits or calls, and how to identify documents such as subpoenas, judicial warrants, and notices of inspection.
For more information, the California Labor Commissioner and California Attorney General publish a list of frequently asked questions regarding the Immigrant Worker Protection Act, which is available online at https://www.dir.ca.gov/dlse/AB_450_QA.pdf.


WORKPLACE LAW - National Medical Support Notice

Question: I received a National Medical Support Notice for one of my employees. What is this and what do I do?
Answer: The National Medical Support Notice (“NMSN”) serves as legal notice that the employee identified in the notice is required to provide health care coverage for the child identified in the notice as part of a child support order. An NMSN may come from a California child support agency or from an agency in another state.
An employer receiving an NMSN must complete and return Part A (Notice to Withhold for Healthcare Coverage) within 20 business days from the date of receipt. If the employer determines the employee is eligible for group health insurance benefits, the employer retains Part A and forwards Part B (Medical Support Notice) to the health plan administrator. If the employee's health care benefits are administered through another organization, including a labor union, the employer must forward Part B of the notice to the labor union or other organization acting as the plan administrator for completion. Thereafter, the plan administrator has 40 business days to enroll the employee’s child, and complete and return Part B of the NMSN to the issuing agency.
Once the child is enrolled in the health insurance plan, the plan administrator must send information about the health care coverage to the issuing agency. If the employee has already enrolled the child in health care coverage, the employer must forward Part B to the plan administrator for completion and submission to the issuing agency. If group health coverage is not available to the named employee, or the employee was never or is no longer an employee of the employer, the employer is still required to complete Part A—Employer Response—and return it to the issuing agency.
Upon notification from the plan administrator that the child is enrolled in the health insurance plan, employers will either: (1) withhold from the employee's income any employee contributions required under each group health plan and transfer employee contributions to the appropriate plan, or (2) notify the issuing agency that enrollment cannot be completed because of a withholding prioritization or limitations on withholding.
If an employer does not already offer group health coverage, the NMSN does not require the employer to provide it just to comply with the notice. If health care coverage is available, the employer is required to enroll the child as instructed in the notice, subject to the limitations imposed by withholding laws of the state where the employee is principally employed. For example, California law prohibits employers from withholding more than 50 percent of the employee’s disposable earnings to pay for insurance premiums. Although an employee may object to enrollment of the child by contacting the issuing agency, the employer must still comply with the NMSN regardless of whether the employee objects.
Both federal and California law require employers to comply with NMSNs. An employer who fails to comply with an NMSN can be found in contempt of court and face penalties and fines. An employer may also be subject to sanctions or penalties for discharging an employee from employment, refusing to employ, or taking disciplinary action against any employee because of medical child support withholding, or for failing to withhold income, or transmit such withheld amounts to the applicable plan as the NMSN directs.