As was discussed in our last Special Bulletin, the Department of Fair Employment and Housing (DFEH) has issued amended regulations relating to an employer’s obligation to prevent and remedy workplace harassment. Additional amendments will also become effective April 1, 2016.
Summarized below are some of the most significant updates to the regulations (which is not an April Fools Joke given the effective date) along with some guidance on implementation. Also discussed is the pending changes to the USCIS Form I-9.
- PROTECTIONS FOR UNPAID INTERNS AND VOLUNTEERS
- PREGNANCY DISABILITY LEAVE (“PDL”)
- PREGNANCY DISCRIMINATION
- ALLOWING SUPPORT ANIMALS MAY BE A REASONABLE
- ACCOMMODATION
- LEGAL STANDARD TO ESTABLISH UNLAWFUL DISCRIMINATION
- SEX DISCRIMINATION AND HARASSMENT
- RELIGIOUS DISCRIMINATION
- I-9 FORM EXPIRATION
DISCRIMINATION AND HARASSMENT PROTECTIONS FOR UNPAID INTERNS AND VOLUNTEERS
On January 1, 2015, new legislation provided that the laws protecting employees against discrimination and harassment were also to be applied to unpaid interns and volunteers (AB 1443). The DFEH regulations now incorporate the same protections to unpaid interns and volunteers as was created by AB 1443.
The regulations define “unpaid interns” and “volunteers” as: “any individual (often a student or trainee) who works without pay for an employer or other covered entity, in any unpaid internship or another limited duration program to provide unpaid work experience, or as a volunteer. Unpaid interns and volunteers may or may not be employees.”
For the same reason that employees are protected from harassment and discrimination, the law now makes it equally unlawful for an employer to discriminate against or harass an unpaid intern in the selection, termination, training, or other terms or treatment of those individuals on any basis protected by the Fair Employment and Housing Act (FEHA).
In addition, the law makes it unlawful for unpaid interns, volunteers, and persons providing services pursuant to a contract to be subjected to unlawful harassment in the workplace on any basis protected by FEHA. Under these regulatory revisions and the legislative changes, unpaid interns and volunteers must be provided the same protections as compensated employees for workplace misconduct.
As the definition of an “unpaid intern” and “volunteer” is very narrow, employers should review the legal requirements before classifying someone as an “intern” or “volunteer”.
And with the summer months approaching and employers facing requests from students to “work” as an unpaid intern or a “volunteer” it is important to understand these two concepts – otherwise, a mis-classification can be a costly mistake resulting in a claim for unpaid wages, missed meals, missed breaks, and other statutory penalties.
Who Can Be an Unpaid Intern?
This question has been the subject of recent litigation and the courts have not been consistent in applying and interpreting prior case law, nor the state or federal guidelines.
The Federal Department of Labor (DOL) has established 6 key factors in assessing whether a “trainee” can be classified as an “unpaid intern” or should be an employee on the payroll. The 6 factors are:
- The internship must be similar to training which would be given in an educational
environment; - The internship experience is for the benefit of the intern (and not the employer);
- The intern does not displace any regular employees, but works under close
supervision of existing staff; - The employer that provides the training derives no immediate advantage or benefit
from the duties performed by the intern, and on occasion operations may be
impeded; - The intern is not necessarily entitled to a job at the end of the internship program;
and - The employer and intern understand that the intern is not entitled to wages for time
spent.
While the DOL has their 6 factor test, in 2008 the California Department of Labor Standards Enforcement (DLSE) published their 11 factor test to determine whether an intern was required to be paid at least minimum wage. The DLSE then incorporated the 6 factors of the DOL and added 5 additional factors. The DLSE later rescinded the 5 additional factors and now follows the DOL analysis.
Who Can Be a Volunteer?
According to the DLSE, a “volunteer” is a person who performs work for public service, religious or humanitarian reasons without promise, expectation or receipt of compensation for that work. A volunteer can only provide their time without compensation to a not-for-profit, religious or charitable entity.
While not a controlling factor, the intent of the parties is also taken into consideration as to whether the person intends to provide their time as a “volunteer” without any expectation of compensation. An individual cannot “volunteer” to work at a “for-profit” company for the purpose of gaining experience – they must be considered an employee, not a volunteer.
PREGNANCY DISABILITY LEAVE (“PDL”)
California’s pregnancy disability leave laws apply to any employer with five or more full-time or part-time employees and to all California public sector employers. The recent amendments to the DFEH regulations further clarify an employer’s obligations to provide Pregnancy Disability Leave along with other notice requirements.
PDL Notice: DFEH Form 100-20 has been revised effective April, 2016. The Notice entitled “Your Rights and Obligations as a Pregnant Employee” has been amendment to include additional information including a section on “Additional Rights Under California Family Rights Act (CFRA) Leave”.
This new notice must be provided to any employee that is disabled due to a pregnancy, child-birth or a related medical condition.
Employer obligations:
- The notice must now include information about the Act’s provisions and contain
information about how to contact the DFEH to file a complaint; - The poster containing the PDL notice must be large enough to be easily read;
- The poster can still be posted electronically, so long as it is put in a place or places
where employees would tend to view it in the workplace; - The notice must be translated into every language spoken by at least 10 percent of
the workforce; - Clarification that PDL need not to be taken in one continuous period of time; and
- Clarification that eligible employees are permitted to take four months of PDL per
pregnancy, not per year.
PREGNANCY DISCRIMINATION
The regulations pertaining to pregnancy discrimination were amended to include the following provisions:
Definition of “eligible female employee” includes a transgender employee who is
disabled by pregnancy.
Unlawful harassment because of pregnancy also includes harassing an employee or
applicant because of childbirth, breast-feeding, or any related medical conditions.
A copy of the new notice (DFEH 100-20) can be found on the DFEH website (www.dfeh.ca.gov)
ALLOWING SUPPORT ANIMALS MAY BE A REASONABLE ACCOMMODATION
The regulations provide that an employer may be required to allow an employee to bring a “support animal” to the workplace as a “reasonable accommodation” for the employee’s disability condition.
The regulations state: “A ‘support animal’ may constitute a reasonable accommodation in certain
circumstances.”
A support animal is “one that provides emotional, cognitive, or other similar support to a person with a disability, including, but not limited to, traumatic brain injuries or mental disabilities, such as major depression. As in other contexts, what constitutes a reasonable accommodation requires an individualized analysis reached through the interactive process.”
If an employee makes a request for an accommodation to bring a support animal to work, such request does not always have to be granted. The employer must engage in the good faith interactive process as it would with any other request for an accommodation to determine if that is a reasonable accommodation.
LEGAL STANDARD TO ESTABLISH UNLAWFUL DISCRIMINATION
In 2013, the California Supreme Court interpreted the legal standard required to establish unlawful discrimination under the FEHA. The amended regulations now conform to the Court’s interpretation so that to support a claim for unlawful discrimination or retaliation under FEHA, an employee must prove by a preponderance of the evidence that a protected category was a substantial motivating factor in the denial of an employment benefit.
However the regulations provide that this legal standard applies to “discrimination” but does not necessarily apply to other “unlawful practices” under FEHA, such as harassment, denial of reasonable accommodation, failure to engage in the interactive process, and failure to provide certain leaves of absence.
(Harris v. City of Santa Monica (2013) 56 Cal. 4th 203)
SEX DISCRIMINATION AND HARASSMENT
The DFEH regulations were amended to provide that it is not a defense to a complaint of harassment based on sex that the alleged harassing conduct was not motivated by sexual desire. It was also clarified that an individual alleging sexual harassment is not required to sustain a loss of tangible job benefits in order to establish harassment.
The regulations define both “quid pro quo” and “hostile work environment harassment” as follows:
(1) “Quid pro quo” (Latin for “this for that”) sexual harassment is characterized by explicit or implicit conditioning of a job or promotion on an applicant or employee’s submission to sexual advances or other conduct based on sex.
(2) “Hostile Work Environment Sexual Harassment” occurs when unwelcome comments or conduct based on sex unreasonably interferes with an employee’s work performance or create an intimidating, hostile, or offensive work environment.
(A) The harassment must be severe or pervasive such that it alters the conditions of the victim’s employment and creates an abusive working environment. A single, unwelcome act of harassment may be sufficiently severe so as to create an unlawful
hostile work environment. To be unlawful, the harassment must be both subjectively and objectively offensive.
(B) An employer or other covered entity may be liable for sexual harassment even though the offensive conduct has not been directed at the person alleging sexual harassment, regardless of the sex, gender, gender identity, gender expression, or sexual orientation of the perpetrator.
( C) An employer or other covered entity may be liable for sexual harassment committed by a supervisor, coworker, or third party:
- regardless of whether the employer or other covered entity knew or should have ‘
known of the harassment; - if the entity or its agents or supervisors knows or should have known of the
harassment and fails to take immediate and appropriate corrective action; - where the employer, or its agents or supervisors, knows or should have known of the
conduct and fails to take immediate and appropriate corrective action.
An employee who harasses a co-employee is personally liable for the harassment, regardless of whether the employer knew or should have known of the conduct and/or failed to take appropriate corrective action.
RELIGIOUS DISCRIMINATION
The amended regulations expand the definition of religious discrimination to provide:
- “Religious creed” which includes all aspects of religious belief, observance, and
practice, including religious dress and grooming to bring it in accordance with AB
1964; - Refusing to hire an applicant or terminating an employee to avoid the need to
accommodate a religious practice constitutes religious creed discrimination; - An employer cannot require segregation of an employee from customers or the
general public in order to accommodate an employee’s religious practice unless
expressly requested by an employee in accordance; - It is unlawful for an employer to discriminate or retaliate against a person who
requests a reasonable accommodation based on religion, regardless of whether the
employer grants the request.
WHAT SHOULD I DO NOW?
In light of the above referenced regulatory amendments and those highlighted in our prior Special Bulletin, employers should undertake the following “action items”:
- Distribute the DFEH Brochure #185 on Sexual Harassment to all new employees
and any current employee that had not previously received one; - Review your Harassment, Discrimination, Bullying and Retaliation policy to ensure
that it is up to date and compliant with the new definitions, new requirements on
prevention steps, training and record-keeping; - Post the updated Notice entitled “Your Rights and Obligations as Pregnant
Employee”; - Create protocol if an employee requests an assistive/support animal be brought into
the workplace; and - Translate required policies into every language spoken by at least 10 percent of the
workforce.
USCIS FORM I-9 SET TO EXPIRE
The USCIS published a notice on March 28, 2016 informing the public of proposed changes to Form I-9, Employment Eligibility Verification, as the current form is set to expire 3/31/16.
The public comment period runs until April 27, 2016. A summary of the proposed changes can be found the USCIS I-9 website at USCIS Seeks Comments on Proposed Changes.
Employers must continue to use the current version of Form I-9 until the Office of Management and Budget approves the proposed version and USCIS posts it on I-9 Central.
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This Newsletter is intended as a brief summary of employment law. While every effort has been made to ensure the accuracy of the information contained herein, it is not intended to serve as “legal advice,” or to establish an attorney-client relationship. If additional information is needed on any of the topics contained herein, please contact our office. All rights reserved. ©2016.