Employer's Report: Employers Report Post

Posted by Giuliana Gabriel, J.D., HR Compliance Director on June 1, 2024

Tags: Employers Report

For the first time in nearly 25 years, the US Equal Employment Opportunity Commission (EEOC) has published new guidance on workplace harassment, including over 70 examples and new terminology. We recommend that employers and HR professionals familiarize themselves with these new definitions and examples.

Test Your Knowledge: Are you familiar with these EEOC terms?

• Intersectional Harassment: This is harassment based on the intersection of two or more protected characteristics. For example, the EEOC explains, “if a woman who is age forty or older is harassed based on stereotypes about older women, this harassment is covered as both age and sex discrimination.”
• Systemic Harassment: When harassment is due to a business practice or policy, it is called as “systemic” harassment since it is not limited to a single incident or occurrence, but rather an entire organization. It is also known as institutionalized harassment. According to the EEOC: “Like other forms of discrimination, harassment can be systemic, subjecting multiple individuals to a similar form of discrimination. If harassment is systemic, then the harassing conduct could subject many, or possibly all, of the employees of a protected group to the same circumstances.”
• Intraclass Harassment: Harassment that is based on the complainant’s protected characteristic is covered even if the harasser is a member of the same protected class as the person who is reporting the harassment. This is known as “intraclass” harassment.
• Intentional Misgendering: Harassing conduct based on sexual orientation or gender identity may include “intentional misgendering,” which occurs when the harasser engages in repeated and deliberate use of a name or pronoun that is inconsistent with the individual’s known gender identity.
• Pregnancy, Childbirth, & Related Medical Conditions: The definition of sexual harassment has been broadened to include harassment based on pregnancy, childbirth, and related medical conditions. “This can include issues such as lactation; using or not using contraception; or deciding to have, or not to have an abortion.”

These terms were developed at the Federal level, meaning they apply to every state in the US, not just California, now. Undoubtedly, these issues will continue to come up in workplaces and it is important that supervisors are able to recognize the various forms of harassment to mitigate liability.

Is your staff due for their harassment prevention training? CEA has a variety of training options, from live trainers who will train your employees onsite at your business, live virtual trainings via Zoom, and of course, convenient on-demand courses. CEA members can access free on-demand harassment prevention training at any time through CEA University!

Posted by Giuliana Gabriel, J.D., HR Compliance Director on June 1, 2024

Tags: Employers Report

Maria runs a landscape business. She creates a work schedule for her team every Friday, for the following week. Sometimes, due to weather or broken equipment, her employees show up for work and Maria sends them home early. Maria called CEA to see if she still owes her employees pay for a shift they didn’t complete.

And here was Maria’s answer: In California, non-exempt (hourly) employees who report to work, but are turned away early are owed a minimum amount of pay, known as reporting time pay. Reporting time pay is confusing for many employers because the rules are a bit nuanced.

First, it is important to remember that what is owed depends on whether an employee was reporting for their regularly scheduled shift or if they were reporting on a non-work day-for example, for a staff meeting or training scheduled on a day off.

Second, remember that reporting time pay should be paid at the regular rate of pay, not using the employee’s base hourly rate.

Regularly Scheduled Shifts

Employees who report for their regular shift and work less than half of their scheduled shift must be paid at least half of their scheduled hours-never less than 2 hours or more than 4 hours. (If they work more than four hours, pay them their actual time, of course).

Here’s something you may not realize-Reporting Time Pay is still required even if the employee is told to come back later and ends up working a full shift later in the day. When an employee is required to report to work a second time in any one workday, they must be paid for at least 2 hours.

Example: Employee is scheduled to work 8 hours and is sent home after 3 hours. They are owed 4 hours (one hour of reporting time pay added to the actual time worked). The one hour of reporting time pay must be paid out at the regular rate of pay.

Surprisingly, even when an employee is working an alternative workweek schedule, required reporting time pay does not need to be increased. For example, even if an employee is scheduled to work 10 hours a day, the maximum reporting time pay requirement is still 4 hours.

Non-Regular Shifts or Days Off

When an employee is called in to work on a day other than his/her normal work schedule (when there is no specified number of hours the employee is scheduled to work that day) the employee receives at least 2 hours of pay.

Reporting time pay issues often come up when terminating employees. Employers should keep in mind that if an employee reports to work only to process the termination paperwork on a regularly scheduled day, they will be owed reporting time pay if they do not work at least half of their shift. It must be included on the final check.

Reporting Time Pay Exceptions

Exceptions to reporting time pay include situations when:

1. Operations cannot commence due to threats to employees or property, or when recommended by civil authorities.
2. Public utilities fail to supply electricity, water, or gas or there is a failure in the public utilities, or sewer system.
3. The interruption of work is caused by an Act of God or other cause that is not within the employer’s control.

Fortunately, employers do not have to pay an employee any reporting time pay when an employee voluntarily chooses to leave early.

Calling In

Employers must be careful not to trigger reporting time pay requirements by requiring their employees to call in to inquire about their work schedules. In Ward v. Tilly’s, Inc. (2019) 31 Cal.App.5th 1167, the court held that physical reporting was not required in order to fall under the reporting time pay requirements.

Triggers for reporting time pay include situations when employees:

• Present themselves for work by logging on to a computer remotely
• Appear at a client’s job site
• Set out on a trucking route
• Or as in Tilly’s, by telephoning the store 2 hours before the start of a shift to find out if they were scheduled to work that day.
  • The closer that an employee is required to call in before the start of the shift to find out if they are scheduled (i.e., night before, day of, etc.), the more likely reporting time pay will be owed.
  • In Tilly’s the court found the defendant’s system to be extremely burdensome on employees, because it required them to be available, prevented them from working other jobs or scheduling other activities, and made child-care arrangements onerous and potentially costly.

For more information, CEA members may refer to our Reporting Time Pay Fact Sheet on our HR Forms page and call us with questions at 800.399.5331.

Posted by Giuliana Gabriel, J.D., HR Compliance Director on June 1, 2024

Tags: Employers Report

As many California employers know, there are about 20 different state and federal notices that all employers are required to post in the workplace, and some carry the potential for hefty fines. For example, failure to post the Employee Polygraph Protection Act Poster (last updated in 2022) carries a potential fine of almost $25,000-that is not a typo!

Since the start of 2024, there have been a few mid-year poster updates. For mid-year updates, we recommend printing and conspicuously posting these notices, such as next to your All-in-One Posters. Below is a summary of the changes, with links to access the postings!

Notice to Employees-UI, DI, PFL

Employers are required to inform employees of the Employment Development Department’s (EDD) programs, including Unemployment Insurance, State Disability Insurance and Paid Family Leave. The EDD’s Notice to Employees (DE 1857A) was just updated in May 2024. It is now in an easy-to-read format and contains new direct links for employees wishing to apply to these programs. (Note: Although it reflects a revision date of 1/22, it was added to EDD’s website as of 5/24.)

Notice to Employees – English

Notice to Employees – Spanish

Fast Food Minimum Wage

As a reminder, as of April 1, 2024, all “fast food restaurant employees” covered by AB 1228 must be paid at least $20.00/hour and there is a required Supplemental Minimum Wage poster. For more information on this law, read our previous blog post here!

Transgender or Gender Nonconforming Rights in the Workplace

Lastly, the Civil Rights Department got around to updating its poster regarding Transgender and Gender Nonconforming rights in Spanish in February 2024. You can access the English poster here, which has a revision date of December 2023.

Still need to order your All-In-One Poster for 2024? Visit CEA’s HR store and select the best option for your business!

Posted by Kim Gusman, President & CEO on June 1, 2024

Tags: Employers Report

Years ago, a disgruntled ex-employee drove all the way from Southern California up to the CEA main office in Sacramento, to deliver a manifesto and an oversized conspiracy-style poster board he had created, accusing CEA of destroying his career. This person claimed that he had been wrongly accused in a harassment investigation that CEA had conducted, on behalf of one of our members, and told our receptionist that he personally wanted to deliver this information to me. Thank goodness I was out of the office that day!

The very next day I had a keyless push button electronic lock installed on the front door, contacted our member to inform them of this safety concern, and contacted the police. This person continued to threaten me by email for weeks until our attorney sent him a cease and desist letter, and the threats finally stopped. It was a scary situation and thankfully no one was hurt! Prior to this incident, I had been unaware of this person and had never experienced a situation like this. However, this scenario has become all too common and often ends up on the news, without a happy ending.

SB 553 and WVPP

Governor Newsom signed SB 553 in September of 2023, which requires employers in California to create workplace violence prevention safety requirements for their employees by July 1,2024. Yes, next month. By July 1, 2024, businesses need to have a Workplace Violence Prevention Plan (WVPP) in place, solicit employee (and union) feedback, and provide WVPP training to their employees annually. While each plan must be customized to the needs of an individual business, have no fear, CEA is here to guide you through this process.

The intention behind a WVPP is to keep your employees safe. Your WVPP will need to address threats from coworkers, but also from customers, vendors, former employees, an employee’s family member or significant other, or from complete strangers. Examples include:

• Physical attacks without a weapon, including, but not limited to, biting, choking, grabbing, hair pulling, kicking, punching, slapping, pushing, pulling, scratching, or spitting.
• Attacks with a weapon or object, including, but not limited to, a firearm, knife, or other object.
• Threats of physical force or threat of the use of a weapon or other object.
• Sexual assault or threat of sexual assault, including, but not limited to, rape, attempted rape, physical display, or unwanted verbal or physical sexual contact.

Starting in July, employers will also be required to record all workplace violence incidents on an incident log and maintain those records for a minimum of five years. Cal/OSHA will enforce the requirements of WVPP’s under SB 553 (Labor Code Section 6401.9).

Exemptions to SB 553  

• Businesses and employers already covered by the Workplace Violence Prevention Standard for Healthcare
• When 100% of your employees are teleworking from a location of the employees’ choice that is not under control of the employer
• Places of employment not accessible to the public with less than 10 employees working on site at any given time, so long as they have a compliant Injury and Illness Prevention Plan
• Facilities operated by the CA Dept. of Corrections and Rehabilitation and law enforcement agencies

CEA can guide you through the WVPP Process

CEA members can download a free Do-It-Yourself (DIY) Workplace Violence Prevention Plan Toolkit, on the Employer Toolkits page of our website.

We are partnering with the Safety Center on June 4, 2024 to offer a free, Workplace Violence Prevention Plan Live Q&A. Join us if you have more questions about , about this new law, the requirements, and implementing your own plan.

If you missed the first live Workplace Violence Prevention Plan – Do It Yourself Package webinar and want to ask questions in real time, we are offering an encore presentation on June 20, 2024.

And, last but not least, in the event that you can’t join us live, or if you want to share this information with other members of your management team, purchase our recorded DIY WVPP webinar in the CEA Store.

Here’s to enjoying your summer and keeping your employees safe at work!

Posted by California Employers Association on May 1, 2024

Tags: Employers Report

What you didn’t know about….
Israel Villasenor, CEO, Integrated Molecular Diagnostics recently joined CEA’s Board of Directors; and Melissa Hotell, one of CEA’s HR Business Partners. Israel Villasenor, CEO, Integrated Molecular Diagnostics, CEA Board Member

1. What was your first job?

Working at my parent’s stores in Mexico. They owned three retail stores selling women’s clothing and accessories.

2. What’s the best piece of advice you’ve been given?

My father told us: A wise man learns from others’ mistakes.  A smart man learns from their own mistakes. A dummy never learns and keeps making the same mistakes. We each have a choice to be one of these three, and it is up to me to decide which one I am every day.

3. What advice would you give to someone who is just starting their career?

Recognize that every day is an opportunity to learn, grow, and develop. Understand that no one starts at the top, and we must climb our way toward our goals. There are boulders, rocks, and obstacles that we will encounter, be flexible enough to get pass them and wise enough to look for the pathway to achieve your goals. Also, focus on goals that are not just beneficial to you as an individual, rather focus on goals that impact society and your community instead. This way, you are benefiting more than just yourself, you are creating a group of professionals with ethical and social connections.

4. What is your favorite quote, motto, or words you live by?

If your problem has a solution, why worry. If your problem DOES NOT have a solution, why worry!

5. What’s one thing on your bucket list?

A trip to Europe with my wife. It is something we have yet to do.

 

Melissa Hotell, HR Business Partner, CEA

1. What’s your favorite quote, motto, or words to live by?

The most important things in life aren’t things.

2. What was your first job?

My parents opened a 24-hour restaurant when I was 5 years old. The entire family pitched in to keep it going. I started my illustrious restaurant career pulling weeds, graduated to busing tables, then hostess, and the pinnacle, serving. Growing up in the restaurant business taught me the value of hard work, teamwork and not to be a slacker.

3. What advice would you give to someone who is just starting their career?

Everything in moderation. Balance is key. Too much of anything is not good.

4. Where did you grow up?

I grew up in Red Bluff, CA. Home of the largest 3-day rodeo in the county.

5. What one thing on your bucket list?

A cruise down the Danube River. Coming soon!

Posted by Kim Gusman, President & CEO on May 1, 2024

Tags: Employers Report

Are you having trouble finding good talent? Looking in the same old places likely won’t help. At a time when labor shortages are causing problems for many industries, one recruiting technique that is gaining more acceptance and success is called a Second Chance hiring campaign.

What is Second Chance Hiring?

Second-chance hiring refers to prioritizing candidates with prior criminal records during recruitment. With over 70 million Americans having such histories, accessing stable employment, secure housing, affordable healthcare, and quality education becomes challenging. Nevertheless, research from the U.S. Chamber of Commerce highlights the advantages of hiring individuals with justice involvement, including heightened national productivity, a pool of motivated and loyal employees, reduced turnover rates, and enhanced community safety. Additionally, studies demonstrate that embracing second-chance hiring practices contributes to bolstering public safety through decreased rates of re-arrests.

Numbers do the Talking 

SHRM and the Charles Koch Institute launched groundbreaking research on people with criminal histories in the workforce. Their 2021 Getting Talent Back to Work Report provided interesting insight, showing that:

• 81% of business leaders and 85% of HR professionals believe workers with criminal records perform their jobs about the same or better than workers without criminal records.
• 4 in 5 (81%) of HR professionals believe the quality of workers with criminal records is about the same or better than those workers without.
• 81% of HR professionals felt the cost-per-hire of workers with criminal records was about the same or less than workers with criminal records.
• 73% of business leaders and 75% of HR professionals said workers with criminal records were just as or more dependable than workers without criminal records.
• 66% of HR professionals said they would be willing to work with individuals with criminal records – up from 49% who said they would be willing in 2018.
• Nearly half (49%) of business leaders said their organization should offer training or guidance to workers with criminal records to facilitate their transition.

For employers interested in this program, the Second Chance Business Coalition promotes the hiring of formerly incarcerated individuals and provides employers with resources on hiring and advancing the careers of people who have criminal histories. The coalition was founded in April 2021.

California’s History With Ban the Box Laws

Companies that don’t focus recruitment efforts on a Second Chance campaign must still comply with California’s criminal history protections. For a bit of historical context, over the past decade or so, there was a “Ban the Box” movement in California, aimed at removing the checkbox or disclosure section containing criminal history-related information, including arrest records and convictions, from job applications. These efforts started on a local level, primarily in San Francisco and Los Angeles.

In 2013, California initiated a Ban the Box law, prohibiting public sector employers from inquiring into an applicant’s criminal history, until after the applicant had met all other qualifications for a job. In 2018, this ban-the-box law was extended to all employers in California with five or more employees under the Fair Chance Act. Moreover, just last year, the Civil Rights Department issued revised criminal history regulations, extending protection to current employees who may be applying for a department change or promotion at work.

What this law means is that California employers may only ask about or inquire into criminal conviction history information after a conditional offer of employment is made. Even then, an employer must conduct a multi-factored individualized assessment, and provide the candidate certain written disclosures before denying them the position based on criminal history. The employer must be able to show the denial is job-related and consistent with business necessity.

Employers may also have additional obligations under local ordinances, including posting requirements (e.g., San Francisco and Los Angeles City). Notably, Los Angeles County recently passed additional criminal history requirements, effective this coming September (2024).

CEA members may learn more by logging in and visiting the HR Forms page to download the Criminal Background Checks Fact Sheet and Criminal History Individualized Assessment.

Posted by California Employers Association on May 1, 2024

Tags: Employers Report

An increasing number of employees are recording their termination meetings with HR representatives, managers and supervisors and posting them on various social media platforms, including TikTok, Instagram, and Twitter. These videos, commonly called “Watch Me Get Fired” videos, have become a trend among workers in various industries, including fast-food employees, office workers, and teachers. In some cases, these videos have gone viral, exposing businesses to heavy reputational backlash and sometimes legal consequences due to substandard termination practices. Despite the high stakes organizations face, some employers are still mishandling terminations.

This article provides an overview of viral termination videos and what employers can do about them.

“Watch Me Get Fired” Videos Explained

“Watch Me Get Fired” videos are videos in which employees film themselves getting terminated or laid off. These videos often show private conversations between employees and supervisors, managers and HR representatives. Workers then post these videos to social media, publically giving light to a private moment that many individuals have attempted to hide in the past. Some videos receive millions of views.

In many cases, remote work has allowed workers to feel emboldened to speak out about their employers online. These videos may also be driven, in part, by Generation Z and millennials’ desire to share more of their lives on social media. “Watch Me Get Fired” videos demonstrate how younger generations turn to social media to speak out when they think they’ve been treated unfairly or when they want feedback or support.

Best Practices for Employers

Implementing certain practices and procedures can help employers limit their potential legal exposure and liability when addressing this recent trend. Employers should consider the following best practices to limit legal exposures and reputational consequences stemming from “Watch Me Get Fired” videos:

• Limit legal pitfalls. Before conducting termination meetings, ensure you avoid saying anything that could increase the risk of or lead to legal liabilities. Train those involved in termination meetings to be aware of workers’ rights and legal protections.
• Be prepared. Anything that happens in the workplace can easily be recorded and shared online. It’s important to consider how a termination conversation will be perceived by the employee and, potentially, others. Thinking about the message and how it will impact employees can help ensure that such conversations are conducted in a professional manner. This may include developing talking points, anticipating what questions the employee will ask or determining what information is necessary to share with the individual.
• Stay professional. Recorded termination meetings that go poorly or are conducted in an unprofessional manner can damage an organization’s reputation and brand. Lacking empathy, being unprepared or not involving a worker’s direct manager can send the wrong message to the worker and general public, causing the company to appear overly harsh or insensitive. Individuals participating in termination meetings should conduct themselves professionally, whether the meeting is in-person or virtual.
• Avoid false statements. False statements can show bad faith and lead to legal troubles and reputational harm. Employers should avoid making statements during termination meetings, including promises of benefits or privileges to which an employee would not be entitled.
• Establish workplace policies. Employers can implement policies addressing audio, video and other recordings in the workplace. This may include a general prohibition against recording workplace meetings and conversations without the consent of all participants. However, in some circumstances, employees may have the right to make recordings at the workplace (e.g., engaging in protected concerted activity under the National Labor Relations Act). Therefore, employers should first speak with counsel to ensure that any workplace prohibitions against recordings are consistent with federal, state and local laws.
• Avoid surprises. Lack of performance management can lead to a negative termination experience or even surprise, which can often increase the odds of an individual taking legal action or cause reputational harm. This is especially true if an individual hasn’t been made aware of their performance issues before the termination meeting. Conducting regular performance evaluations and proactive employee management can help lessen the surprise when an employee is terminated for performance issues. Employers should establish a transparent work culture where issues, concerns and goals are discussed openly and often.

Summary

Leaders should do their best to deliver termination messages in a compassionate and dignified manner. Conducting termination meetings as if the world were watching can help organizations reduce the risk that they’ll find themselves on the negative end of a viral sensation. By establishing best practices for terminations, employers can improve their offboarding processes, strengthen their brands and limit legal risks. CEA members may call us at 800.399.5331 for additional guidance.

Posted by Mari Bradford, HR Director on May 1, 2024

Tags: Employers Report

Have you recently been hired or promoted into a Human Resource role in California? Are you located in another State, but need an overview of HR laws for those employees in California? Perhaps you wear multiple hats-Office Manager, Team Lead, etc. and need an HR refresher? If so, CEA has designed the class for you!

Our HR 101: HR Essentials Series covers the key areas that every person who handles HR functions can benefit from taking. This four session course covers the essential functions of human resources to help you confidently manage the personnel process in your business. Course topics include Hiring Fundamentals, Wage & Hour, Employee Handbooks, Leaves of Absence, Performance Management and Terminations. Each class is 90 minutes and covers the key areas that every HR professional needs to know.

Class 1: Hiring and Onboarding Essentials

• Recruiting best practices
• Job descriptions
• Interviewing skills
• Pre-employment best practices
• Onboarding for long-term success

Class 2: Wage & Hour and Employee Handbooks

• Minimum wage essentials
• Exempt classifications
• Meal/rest periods and other tricky issues
• Handbooks – Your sword and shield
• Required policies

Class 3: Leaves of Absence in California

• Determining leave eligibility
• Employee’s rights under the law
• How to properly designate and document leaves
• How leaves can affect PTO, vacation, sick, and wages

Class 4: Performance Management and Terminations

• How coaching and discipline work together
• Documenting behavior before acting decisively
• California’s required paperwork when ending a work relationship
• Avoiding legal problems when exiting employees

Whether you are expanding your HR responsibilities, looking for a comprehensive guide to the core role of HR or need a reminder of best practices in the ever-changing HR world of California, this is the series for you!

You can find more information and purchase the entire four-series recording in the CEA store. The price for the entire series is $449 for members, $649 for non-members.

Already Taken HR 101?

Stay tuned to future Employers Reports for an announcement about HR 201 coming this fall!

Posted by Eli Nuñez, HR Director on May 1, 2024

Tags: Employers Report

The Summer of 2023 went on record as the hottest of all time according to NASA, the National Oceanic and Atmospheric Administration and other members of the scientific community. Whether you blame global warming, El Niño, Zeus, or no one in particular, Summer 2024 is nearly upon us and chances are it will be hot in the Golden State.

Heat Illness Protection requirements recently made national headlines when Florida joined Texas in rolling back protections for people who work outdoors. However, California continues to be at the forefront of employee safety, after being the first state to put outdoor heat illness prevention measures into law almost two decades ago.

Cal/OSHA has renewed its focus on Heat Illness Prevention in indoor places of employment. As recently as March it appeared that Cal/OSHA was ready to adopt rules requiring employers to provide protections against excessive heat in indoor workspaces before the process was halted by state financial officials asking for more time to analyze the financial impacts of those rules.

Some of the highlights of the proposed-but-still-pending rules for indoor heat illness protection include:

1. Monitoring employees and providing cooling areas when indoor temperatures reach or surpass 82 degrees
2. Cooling the broader work site, allocating more breaks, rotating workers or making other adjustments when temperatures climb to 87 degrees or workers are made to work near hot equipment

Traditionally, agriculture, construction and landscaping have been the focus of heat illness prevention measures, but other industries should take precautionary measures as well. Knowing the signs of heat illness and how to react are essential in preventing a workplace tragedy.

Warning Signs

Whether it occurs indoors or outdoors, Heat Illness can present itself as either heat exhaustion or heatstroke. Heat exhaustion occurs when a person cannot sweat enough to cool their body. This is usually the result of not drinking enough fluids during hot temperatures. Heatstroke is the result of untreated heat exhaustion and is a serious medical emergency which often requires medical treatment.

Early symptoms of heat illness can include dizziness, nausea/vomiting, confusion, cramps, red dry skin, elevated heart rate and convulsions or fainting. Ignoring the early warning signs and not providing adequate care may lead to brain damage, as well as damage to other organs or death.

Outdoor Heat Illness Prevention Requirements

Cal/OSHA requires that employers with outdoor workers in all industries take the following steps to prevent heat illness:

1. Plan: Develop and implement an effective written heat illness prevention plan that includes emergency response procedures.
2. Training: Train all employees and supervisors on heat illness prevention.
3. Water: Provide drinking water that is fresh, pure, suitably cool and free of charge so each worker can drink at least 1 quart per hour, and encourage workers to do so.
4. Rest: Encourage workers to take a cool-down rest in the shade for at least five minutes when they feel the need to do so to protect themselves from overheating. Workers should not wait until they feel sick to cool down.
5. Shade: Provide proper shade when temperatures exceed 80 degrees. Workers have the right to request and be provided shade to cool off at any time.

CEA can help employers comply with Cal/OSHA requirements and keep their employees safe. We offer onsite training for your workforce in both English and Spanish to help keep your employees safe and your company out of trouble. We also have safety partners with years of knowledge that can help with your Heat Illness Prevention Plan, IIPP, WVPP or any other safety concern.

Posted by Giuliana Gabriel, J.D., HR Compliance Director on May 1, 2024

Tags: Employers Report

California employers often don’t need to pay attention to federal employment rules because we have more stringent requirements. However, California employers must now pay attention to the new federal EEOC regulation for the Pregnant Workers Fairness Act (PWFA). This regulation is even more protective in some ways than California’s Pregnancy Disability Leave law and FEHA/ADA requirements.

PWFA History

Last year in June 2023, the U.S. legislature passed the Pregnant Workers Fairness Act (PWFA), and the EEOC published a proposed rule interpreting the PWFA in August 2023. On April 19, 2024, the EEOC’s rule became final and it will go into effect 60 days from April 19. That means the regulation goes into effect on June 18, 2024. You can find a summary of the regulation at the EEOC’s website.

The PWFA applies to employers with 15 or more employees. Modeled after the ADA, it requires employers to engage in the interactive process and reasonably accommodate known limitations related to pregnancy, childbirth or related medical conditions, unless accommodation creates an undue hardship.

The PWFA goes one step further than the ADA and requires accommodations for pregnancy-related limitations that do not necessarily arise to a disability status (e.g., occasional morning sickness, needing to attend health care appointments, etc.). Notably, pregnancy itself is not a disability under the ADA.

What California Employers Need to Know

Current laws in California already require employers with five or more employees to reasonably accommodate pregnant employees, and provide up to 17.3 weeks (88 days) of Pregnancy Disability Leave when an employee is “disabled” or “affected” by pregnancy, as certified by their health care provider. Pregnant employees also have protections under the Fair Employment and Housing Act (FEHA).

The additional new requirements will require employers with 15 or more employees to:

• Temporarily suspend essential job functions
• Provide certain “predictable assessments” (e.g., accommodations such as carrying water, additional or longer meal and restroom breaks, etc.)
• Prohibit a request of medical certification in certain instances, such as the “predictable” accommodations noted

Temporary Suspension of Essential Job Functions as Reasonable Accommodation

The PWFA regulation requires employers to temporarily excuse essential job functions, if the employee would be able to perform the essential functions in the near future. The EEOC defines in the near future as generally up to 40 weeks, unless it would impose an undue hardship.

What this means, according to the EEOC, is that “an employee who is temporarily unable to perform one or more essential functions of their job, and who therefore needs light duty or a change in their work assignments, may be able to get such a change as a reasonable accommodation.”

Predictable Assessments

The EEOC’s regulation also lists certain accommodations deemed reasonable in virtually all circumstances. The EEOC takes the position that these accommodations (termed predictable assessments) do not cause an undue hardship in almost all cases.

• To carry or keep water near and drink as needed
• Additional restroom breaks
• To sit when work requires standing, and to stand when work requires sitting
• Breaks to eat and drink, as needed

While the EEOC does not go quite so far as to say these accommodations must be “automatically” granted, they state, “the individualized assessment should be particularly simple and straightforward” in these circumstances. As discussed further below, employers should not request documentation beyond self-attestation for these assessments.

Unfortunately, the regulation does not include any parameters on predictable assessments. For example, if an employee claims that due to pregnancy, she needs to visit the restroom every 10 minutes or have continual access to food, the EEOC has not provided any guidance on if or when employers may draw a line.

Limitations on Supporting Documentation

The EEOC also provides several examples when it is not reasonable for an employer to request supporting documentation or medical certification. These include:

• When the known limitation and need for reasonable accommodation are obvious
• When the employee or applicant has already provided sufficient information, such as prior medical certification
• When the employee attests to being pregnant and requests one of the predictable assessments above
• For lactation/pumping accommodations

Employers should train supervisors on the new requirements and update reasonable accommodations policies, as needed before June 18, 2024.

For more information, employers may refer to the EEOC’s Summary of Key Provisions, and CEA members may call us at 800.399.5331.

Posted by Giuliana Gabriel, J.D., HR Compliance Director on May 1, 2024

Tags: Employers Report

Do employees need a right to disconnect from work? The California legislature may think so. AB 2751, an unprecedented bill modeled after European countries, would require employers to define employees’ nonworking hours and prohibit employers from contacting workers during those hours, except for scheduling changes or emergencies. As of right now, the bill has many open questions and ambiguities.

At CEA, we remind employers that when it comes to proposed bills, it isn’t over until it’s over, so don’t get too tied up in the weeds before a bill actually passes. However, AB 2751 does raise some interesting questions for employers to consider about work culture and wellness.

What is Your Work Culture?

Employers should consider whether they truly allow employees to create boundaries between their work and personal lives. After all, we are not robots (at least not yet), and you will get the best out of a happy employee, rather than a disengaged or resentful one.

In your workplace, are employees expected to respond late at night and on weekends? Are they receiving work emails around the clock? While this may be allowed for exempt employees without having to worry about timekeeping and overtime, it still often creates a cultural problem.

In fast-paced environments where employees are expected to respond constantly, with no predictable personal time, the employer will experience employee burnout, retention issues, and a general lack of loyalty from employees, especially when they find higher paying opportunities. Staff may also become cynical and fail to form bonds with their coworkers, expecting that everyone eventually leaves that type of environment.

If this is the culture in your workplace, it is important to assess whether the nature of your business or the nature of the position truly requires around-the-clock work. Maybe this is true of higher-level executives responsible for running national companies, but for most positions, there are opportunities to create win-win boundaries. Consider whether you are able to create general guidelines for management about when it is appropriate to contact employees, or what types of issues take priority outside of business hours. You may also find that managers’ expectations on employee communication outside of work vary greatly, so it may be important to have your leaders first reach consensus on communication during “non-work” hours, as well as expected employee response times.

Where Do You Land on Benefit Offerings and Wellness?

For employees in high-demand positions, it is especially important to consider how you provide time for rejuvenation and personal endeavors, so they will give you their 100% at work. Some ideas include:

• Offering holidays, vacation, or paid time off
• Including a personal leave of absence policy
• Flexible schedules or alternative workweeks
• Offering an Employee Assistance Program
• Allowing for remote and/or hybrid work
• Providing a stipend for wellness (e.g., gym membership, art classes, pet supplies)

When you do provide benefits, make sure employees understand the full value. You may consider providing the employee a benefits summary, which breaks down the monetary cost of health benefits, vacation, etc.

Want additional tips? Reach out to your CEA team at 800.399.5331 or email CEAinfo@employers.org!