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California Hiring and Discrimination Laws for 2013

– By Joseph J. Minioza

A host of new employment laws go into effect beginning January 1, 2013. They range from anti-discrimination protections to social media safeguards and wage statement changes.
Ericksen Arbuthnot will inform you of these changes in a series of three emails.
Unless specified, the following list of new legislation goes into effect on January 1, 2013.

Hiring

Social Media and Personal Passwords AB 1844

AB 1844 prohibits employers from requiring or requesting employees or job applicants to provide user names or passwords for personal social media accounts and from requesting an employee or applicant to divulge personal social media. There are limited exceptions, including an exception relating to employer investigations.

This bill would prohibit an employer from requiring or requesting an employee or applicant for employment to disclose a username or password for the purpose of accessing personal social media, to access personal social media in the presence of the employer or to divulge any personal social media. The new law covers “social media” that includes videos, photographs, blogs, podcasts, text messages, e-mail, online accounts and website profiles. However, AB 1844 does not apply to information used to access employer-issued electronic devices and is also not intended to infringe on the existing rights and obligations of employers to investigate workplace misconduct.

Under existing law, the Labor Commissioner, who is the Chief of the Division of Labor Standards Enforcement (DLSE) in the Department of Industrial Relations (DIR), is required to establish and maintain a field enforcement unit to investigate specified violations of the Labor Code and other labor laws and to enforce minimum labor standards. Existing law authorizes, and under specified circumstances requires, the Labor Commissioner to investigate employee complaints of violations of the Labor Code, provide for a hearing and determine all matters arising under his or her jurisdiction. This bill would provide that the Labor Commissioner is not required to investigate or determine any violation of a provision of this bill.

AB 2343: New Disclosure Requirements For Recipients of Summary Criminal History Information

This bill places an additional responsibility on California employers that requires information about employees' criminal history and subsequent arrests. After the bill goes into effect on January 1, 2013, if an employer uses information about an employee's criminal history or subsequent arrest to make an adverse employment decision, the employer must furnish a copy of the information that is the basis for the adverse employment decision to the person to whom the information relates. This new reporting requirement models those already found in the Fair Credit Reporting Act and the California Investigative Consumer Reporting Agencies Act.

Assembly Bill 2343 will streamline California's criminal history information notification system. This legislation authorizes the California Department of Justice (DOJ) to provide private and public employers with up-to-date state and federal arrest, disposition and sentencing information for all employees or licensees that require a criminal background check.

This bill will permit the California DOJ to include the disposition of any subsequent arrest in the supplemental notices. This is a positive development for employers who use the California DOJ fingerprint report process because it was often difficult and time-consuming to determine whether the subsequent arrest had resulted in a conviction and therefore could be the basis of an adverse employment action under Labor Code Section 432.7. Starting in 2014, the FBI will include updated dispositions in its fingerprint reports and this bill will allow the California DOJ process to include that disposition information obtained from the FBI in its own reports. In essence AB 2343 enables the California DOJ to take advantage of the FBI's process improvements and pass more detailed information on to employers.

While this new law applies only to specific information received from the California Department of Justice, employers may wish to review the criminal information they receive from all governmental and private agencies, as the federal Fair Credit Reporting Act and the California Investigative Consumer Reporting Agencies Act also contain regulations that apply to the disclosure and dissemination of criminal information.

Discrimination

Workplace Religious Freedom Act (WFRA) AB 1964

AB 1964 clarifies that Fair Employment and Housing Act (FEHA) discrimination protections and reasonable accommodation requirements cover religious dress practices and religious grooming practices. “Religious dress practice” includes the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts and any other item that is part of the observance by an individual of his or her religious creed, while “religious grooming practice” includes all forms of head, facial and body hair that are part of the observance by an individual of his or her religious creed.

It also specifies that segregating an individual from other employees or the public is not a reasonable accommodation of religious beliefs or observances. The bill specifically states that the terms “religious dress” and “grooming practices” should be broadly construed.

Existing law protects and safeguards the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation. Specifically, an employer or other covered entity is required to reasonably accommodate the religious belief or observance of an individual unless the accommodation would be an undue hardship on the conduct of the business of the employer or other entity. This bill would further provide that no accommodation is required if an accommodation would result in the violation of specified laws protecting civil rights.

Second, the law creates a higher bar for employers to demonstrate “undue hardship.” Prior to the Workplace Religious Freedom Act (WFRA), the standard under California law was similar to that under Title VII of the federal Civil Rights Act. It permitted employers to demonstrate an undue hardship if the accommodation caused “de minimis” harm to the company. Under the new law, an employer in California must demonstrate “significant difficulty or expense” for an undue burden to exist, a standard identical to the undue burden requirements in disability accommodation disputes.

The law, signed on September 8, 2012, will take effect on November 1, 2013.

Sex Discrimination and Breastfeeding AB 2386

AB 2386 changes the definition of “sex” under the Fair Employment and Housing Act (FEHA) for purposes of discrimination protections to include breastfeeding and related medical conditions. Under FEHA, discrimination is prohibited in housing and employment on the basis of race, religious creed, color, national origin, ancestry, physical disability, medical condition, marital status, sex, age or sexual orientation.

Under existing law, FEHA makes it is unlawful to discriminate on the basis of sex, which includes gender, pregnancy, childbirth and medical conditions related to pregnancy or childbirth. AB 2386 amends the existing statutory definition of “sex” under the FEHA to include breastfeeding, in order to prevent breastfeeding discrimination in the work place.

The State of California defines a “breastfeeding woman” to mean “a woman up to one year postpartum who is breastfeeding her infant.” 22 CCR § 40609. Under California's Lactation Accommodation laws, every employer, including public employers, must provide reasonable accommodations for women who are breastfeeding, as long as they do not seriously disrupt the employer's operations. Labor Code §§ 1030-1033 (2002). These include reasonably spaced break time to express milk, which may run concurrently with the break time the employee is already provided. However, only the non-concurrent break times may be unpaid. Labor Code § 1030. Reasonable effort includes the duty to provide the breastfeeding employee with a private room other than a toilet stall that is in close proximity to the employee's work area. Labor Code § 1031. Violations of these sections are inspected and investigated by the Labor Commissioner, who may issue the employer a citation or a civil penalty of $100 for each violation. Labor Code § 1033.

Consequently, the proposed changes will prevent employers from terminating women for pumping at work after they return from pregnancy disability leave. It will also protect breastfeeding mothers from being discriminated or retaliated against for requesting breastfeeding accommodations by being reassigned to other work, required to work different shifts, requested to take additional leave or being terminated. Finally, employers may not use a woman's desire to breastfeed in the workplace as a factor in making hiring, promotion or demotion decisions.

The changes also extend FEHA's sexual harassment protections to breastfeeding mothers. Cal. Gov. Code §12940 (j)(1). The employer could be liable for harassment by its other employees, and agents or supervisors, if the employer knows about the harassing conduct and fails to take immediate corrective actions. Employers may also be liable for breastfeeding harassment carried out by non-employees, if the employer has control and other legal responsibility over the non-employees' conduct.

The proposed changes may also affect an employee's right to extend pregnancy leave for a reasonable period of time if the employee can show that her new born child is affected with medical conditions, such as a cleft pallet or difficulty weaning, which does not allow the new born child to accept any other form of nutrition other than breastfeeding, which requires the mother's presence for feeding the new born child. Cal.Gov. Code § 12926 (a)(1).

‘Shriver R-Word Act’ SB 1381 and AB 2370

SB 1381 and AB 2370 change the term “mental retardation” to “intellectual disability” in various California statutes, including under the definition of “mental disability” in the Fair Employment and Housing Act.

Existing law refers to “mental retardation” or “a mentally retarded person” in numerous state statutory provisions, including provisions relating to psychiatric technician regulation, the state's unfair competition statute, educational and social services, commitment to state facilities and criminal punishment.

The bill would also state the intent of the Legislature that the bill not be construed to change the coverage, eligibility, rights, responsibilities, or substantive definitions referred to in the amended provisions of the bill.

AB 2370 is titled the ‘Shriver R-Word Act’ to recognize the Shriver family's longstanding commitment and hard-work with the intellectually disabled community. The change of terminology in California law ensures that those with intellectual disabilities are treated with respect and brings consistency with Federal law.

Accessibility Reform SB 1186

SB 1186 limits frivolous litigation regarding technical violations concerning disability access by reducing statutory damages, putting into place new provisions to prevent “stacking” of multiple claims to increase statutory damages and banning letters making demands for money before litigation. “Stacking” of multiple claims increases monetary damages, by requiring a plaintiff to explain the need for multiple visits to the same business with a known uncorrected barrier to access. In “demand for money” letters, lawyers often order businesses to pay a set amount, plus their exorbitant legal fees, in exchange for dropping the case.

California has 40% of the nation's ADA lawsuits but only 12% of the country's disabled population.

SB 1186 requires attorneys to send a notice letter, listing any alleged construction-related violations, at least 30 days before filing a lawsuit. SB 1186 also significantly reduces damages against business owners who correct alleged violations within 30 to 60 days of receiving a complaint.

Some of the main provisions of SB 1186 include:

  • If a businesses is in a location that was completed after January 1, 2008 or any business in California that has received a Certified Access Specialist (CASp) inspection, that business will have 60 days to fix that violation and their statutory damages may be reduced from $4,000 to $1,000, a 75 percent reduction;

  • Requiring attorneys to send a copy of pre-litigation demand letters or civil complaints alleging construction-related disability access violations to the California Commission on Disability Access or to the State Bar of California for review;

  • Requiring pre-litigation demand letters and complaints alleging construction-related disability claims contain language allowing defendants to determine the basis of the violations supporting the claim, including the “date or dates of each particular occasion on which the claimant encountered the specific access barrier(s)”;

  • Small businesses with 25 or fewer employees that have not had a CASp inspection will have 30 days to fix a violation and can see their statutory damages reduced from $4,000 to $2,000, a 50 percent reduction;

  • SB 1186 ends “demand for money” letters from attorneys. Letters can still be sent to a business alerting them of a potential violation or infraction, but that letter can't include a “demand for money.” Attorneys sending those letters will be required to also send a copy of the letter to the California State Bar, who will examine the letter to make sure it meets the requirements of the law;

  • Attorneys will also be required to send a copy of letters sent to businesses to the California Commission on Disabilities (CCDA). They will be required to compile a “Top 10” list of violations to be posted on their website by July 1, 2013 and also a list of those attorneys and law firms who are filing the bulk of the lawsuits;

  • SB 1186 provides an avenue for local cities and counties to expand the CASp program in their communities, to help bring local businesses into ADA compliance and develop tools to help educate the business community in expanding ADA access; and

  • Business licenses and renewals will include $1 to support local cities and counties to expand the CASp program in the businesses' communities, to help bring local businesses into ADA compliance and to develop tools to help educate the business community in expanding ADA access.

California Extends Whistleblower Protections under the California False Claims Act (CFCA) AB 2492

AB 2492 makes California the first in the nation to update its state false claims statute to align with the federal False Claims Act. The new law allows individuals other than the “original source” (i.e., individuals without direct knowledge) to bring such claims by prohibiting a court from dismissing these claims based on a lack of jurisdiction if the Attorney General (or other government prosecutorial authority) opposes the dismissal of the action.

The bill amends the current version of the CFCA, adding whistleblower protections covering employees, contractors and agents; allowing for awards of legal fees and costs; and raising civil penalties for violations of the state law from $5,000 to $10,000 per false claim to between $5,500 and $11,000.

The California False Claims Act applies to persons who knowingly make or use a false statement or document to either obtain money or property from the State or avoid paying or transmitting money or property to the State. Further, an employee who violates the act, as part of carrying out his or her job, can more readily file a lawsuit against the employer and be awarded a portion of the proceeds garnered from it. Even though courts have discretion to lower the amount of an award paid to such a person, the statute creates a direct incentive for a person who has played a key role in a false claim to bring a claim against its employer.

The changes made by AB 2492 may, if employers who provide goods and services directly or indirectly to state and local governments are not careful, lead to an increase in claims for improper billing practices, penalties and civil lawsuits by employees.

The greater protections may encourage employees to disclose fraudulent activities involving the State, but they may also lead to an increase in retaliation claims. This bill could encourage more current and former employees to assert claims against their employers because there are financial incentives to do so. Some of the key changes include a provision making even the person “who planned and initiated” the unlawful claim eligible for an award of up to 50% of the proceeds ultimately paid out by the defendant. A person who has been terminated, demoted, discriminated against or otherwise retaliated against for initiating a False Claims Act matter, may seek full relief, including reinstatement with seniority, double damages for back pay, special damages, punitive damages, attorneys' fees and court costs. Such claimants have up to three years to file suit. False claims cases may also become more attractive to attorneys because the bill allows qui tam relators to recover their attorneys' fees if they prevail.

To deter frivolous accusations, under existing law, a prevailing defendant may be awarded attorney fees even when the state has brought the action. However, under the new law, a prevailing defendant may only recover its attorney's fees if the government has declined to participate in the action.

Employers should carefully evaluate their policies and practices regarding whistleblowing and retaliation. Employers that do business with the state should be particularly cautious when addressing employee complaints about any work-related matter.

Covered businesses should adhere to policies and practices that prevent knowingly presenting a false claim to government agencies for payment; knowingly making a false record material to a false claim; conspiring with others to commit unlawful acts; or improperly retaining and not reporting overpayments received.

Covered businesses should also ensure open communication with employees who may report unlawful financial billing practices and claims. Appropriate follow-up communications with the employee and with personnel involved in the questioned financial transaction should document a full and honest evaluation of the facts that may be uncovered by management to rectify any improper transaction.

Businesses should educate managers to prevent unlawful discrimination and retaliation against employees who bring forth evidence of false claims. Finally, if an employer becomes aware of facts that may run afoul of any relevant False Claim Act, it should undertake an impartial and thorough investigation to determine whether improper conduct has occurred and, if so, how to rectify it quickly.

If you would like to schedule a seminar regarding any of the information in this bulletin, please click .