2020 California Employment Law Update #3: Fair Employment

Article Highlights:

• How will the updated California Fair Employment and Housing Act affect your nonprofit?
• Hairstyle Discrimination Prohibited
• Revised Lactation Accommodation Requirements
• Expanded Time to File Claims of Harassment, Discrimination and Retaliation
• “No-Rehire” Provisions Barred from Settlement Agreements
• Harassment Prevention Training Requirements

How will the updated California Fair Employment and Housing Act affect your nonprofit?

In 2020, California has new rules, regulations, and court rulings that have changed the employment law landscape. In this four-part series, we bring you key new laws for 2020. Our third update is on the CA Fair Employment and Housing Act.

Hairstyle Discrimination Prohibited

California’s Fair Employment and Housing Act is expanded with regard to race. The definition of “race” now includes “traits historically associated with race, including, but not limited to hair texture and protective hairstyles,” including “braids, locks, and twists.”

During the legislative process, lawmakers pointed to the fact that workplace dress code and grooming policies that prohibit natural hair, including afros, braids, twists, and locks, have a disparate impact on Black individuals. Hair has historically been a determining factor of a person’s race, thus targeting certain hairstyles constitutes racial discrimination.

Revised Lactation Accommodation Requirements

Employers must provide employees the use of a room or other location that is in close proximity to the employee’s work area. The space:

1. Must be free from intrusion and cannot be a bathroom
2. Must be safe, clean, and free of hazardous materials

The employer must also provide:

3. A place to sit
4. A surface to set the breast pump on (along with other personal items)
5. Access to electricity
6. A sink and refrigerator

The lactation space does not need to be used solely for lactation, but when a lactating employee needs to use it, they get priority.

If you use a multi-employer worksite, or agricultural, there are additional guidelines for compliance. Employers with less than 50 employees may be exempt from the specific requirements if they can demonstrate undue hardship (meaning compliance would create significant difficulty or expense in light of the employer’s size and financial resources). We suggest assuming that this is a very difficult standard to meet, and you should talk with counsel before trying to rely upon hardship.

Employers must provide a reasonable break time for lactation. The new law provides that a failure to provide this break time or a location as described above, is a failure to provide a rest break and triggers the Labor Code penalty of one additional hour’s pay per violation.

Employers must implement a written policy describing the process for requesting lactation accommodation and informing employees of their right file a complaint with the Labor Commissioner. This policy should be in your handbook, in a separate document given to new hires, and to employees who ask about or ask for parental leave.

Expanded Time to File Claims of Harassment, Discrimination and Retaliation

Under current law, a victim had one year from the last act to file a claim of harassment, discrimination, or retaliation. This time is now extended to three years.

“No-Rehire” Provisions Barred from Settlement Agreements

Often, when employers and employees enter into settlement agreements about employment law claims, the employee agrees never to seek employment from the employer (and any related companies). Starting January 1, 2020, these provisions are not permitted. This rule covers internal complaints and those that have progressed to litigation.

The parties to the agreement may agree to end an employment relationship or prevent the employee from working for the employer again, if the employer made a good faith determination that the employee engaged in sexual harassment or sexual assault. The employer is not required to keep that

employee on or rehire them as there are legitimate nondiscriminatory or nonretaliatory reasons for terminating their employment or refusing to hire them.

Harassment Prevention Training Requirements

Last year, harassment prevention training requirements were expanded to include employers with five or more employees and all employees. Over the summer, the deadline for such training was extended to allow companies to comply.

By January 1, 2021, employers with five or more employees must provide two hours of training to supervisory employees and one hour to all non-supervisory employees in California. The training must be repeated every two years. New hires must receive the training within six months of hire or promotion to a supervisory position.

Seasonal, temporary, and employees hired to work for less than six months must be trained within 30 calendar days after their hire date, or within 100 hours worked, whichever occurs first. If the employee is employed by a temporary services employer, that company is to provide the training, not the end-client.

The full 2020 California Employment Law Update series:

1. Arbitration in the Workplace
2. Compensation
3. Fair Employment
4. Time off

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