The Bay Area Urban Debate League (“BAUDL”) is a debate mentoring program that currently serves hundreds of low-income and minority students at 22 Bay Area schools. Studies show that these programs improve literacy, GPA, graduation rates, and provide a host of other direct benefits to the participants, their schools, and the community.

Fox Rothschild LLP is proud to be among 16 law firms competing in BAUDL’s “Champions of Diversity” fundraising campaign. The initial round is this week, ending Friday, April 1st, during which the firms will compete to see which one can raise the most money and the most money per attorney in their Bay Area offices. There will then be a second round among the top three finalists. The winner gets a full-page ad.

You can find updated results here. If you’re moved to give, you can do so on behalf of any of the law firms listed (such as Fox Rothschild!) or you can donate to the unaffiliated group. Every bit helps and it’s a very worthy cause.

As we’ve discussed before, new regulations from California’s Fair Employment & Housing Council take effect April 1, 2016. To be compliant, your company’s policy prohibiting harassment, discrimination, and retaliation needs to do the following:

  1. List all the categories currently protected under the Fair Employment and Housing Act, i.e., race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, and military or veteran status.

    Copyright: bialasiewicz / 123RF Stock Photo
    Copyright: bialasiewicz / 123RF Stock Photo
  2. State that the policy prohibits harassment by co-workers, supervisors, managers, and third parties with whom the employee comes into contact. (That’s basically everyone, isn’t it?)
  3. Provide  confidentiality, to the extent possible, for complaints.
  4. Promise timeliness. This is a point of emphasis. The regulations require “a timely response,” “timely investigations,” and “timely closures.”
  5. State that investigations will be impartial and conducted by qualified personnel.
  6. State that investigations will be documented and tracked for reasonable progress.
  7. Provide “appropriate options for remedial actions and resolutions.”
  8. Designate personnel to receive complaints, while stating that employees are not required to complain to their immediate supervisors.
  9. Instruct supervisors whom to complain to.
  10. Indicate that the employer will conduct a fair, timely (there’s that word again!), and thorough investigation that provides all parties with appropriate due process and reaches a reasonable conclusion based on the evidence.
  11. Indicate that, if misconduct is found, the employer will take appropriate remedial measures.
  12. Prohibit retaliation.

Harassment claims have been in the news a lot lately. The first line of defense is having a compliant policy in place. Not allowing your employees to ever interact with anyone may also be effective, but that doesn’t seem to work for many businesses.

 

As I wrote in January, the EEOC issued new guidance called: “Questions and Answers for Employers: Responsibilities Concerning the Employment of Individuals Who Are, or Are Perceived to Be, Muslim or Middle Eastern.” The EEOC said that it issued the guidance in response to the “attacks in Paris and San Bernardino, California, in late 2015 and other recent world events….”

Perhaps unsure it got the message across, the EEOC has now issued an announcement titled: “What You Should Know About Religious and National Origin Discrimination Against Those Who Are or Are Perceived to Be, Muslim or Middle Eastern.” This latest announcement touts some of the Commission’s victories on behalf of Muslim workers and notes (in a sentence) that they bring claims on behalf of members of other religions, too.

Copyright: bigevil600 / 123RF Stock Photo
Copyright: bigevil600 / 123RF Stock Photo

Since less than 4% of EEOC complaints allege religious discrimination, is this overkill? Are the people who write EEOC announcements overwhelmed by the relentless pressure of having to come up with new ideas to write about (I know, I know)? Or do employees still not realize that discriminating against and harassing Muslim, Middle Eastern, and South Asian workers is just as unacceptable as any other type of discrimination or harassment?

Who knows. But if you manage a workforce, be aware that this is a priority for the EEOC and make sure your employees behave themselves accordingly. Also, rest assured that if the EEOC next issues: “We Really, Really Mean It This Time: More Guidance on Religious and National Origin Discrimination Against Those Who Are or Are Perceived to Be, Muslim or Middle Eastern” you can read about it here.

With minimal public commentary, the Department of Fair Employment and Housing has passed new regulations broadening and strengthening the Fair Employment and Housing Act.  While it’s too late to (officially) complain about them, here’s why you should care:

A) The new regulations significantly expand who is protected under FEHA.

First, the definition of “employer” is expanded so that smaller employers with fewer than five employees who utilize outside contractors, interns or even unpaid volunteers must comply with the Act. Second, it formalizes protection under the Act for non-employees in the workplace such as unpaid interns and volunteers. Third, it expands pregnancy-related protections to transgender individuals by eliminating the word “woman” from the rules.

B) The new regulations impose stricter requirements for sexual harassment training.

Existing regulations limit employer recording keeping to basics like the name and date of the training.  However, now employers need to keep copies of all materials utilized by the trainer including written slides, materials, attendance sheets, questions submitted during the seminar or webinar, and responses given by the trainer.  All records must be kept for two years.

C) The new regulations enhance employer notice requirements.

Though the regulations stop one step short of requiring employers to actually accompany an employee to the DFEH to file a claim, they place extra burdens on employers to notify employees of their rights. In addition to handing out pamphlet DFEH-185 on sexual harassment, employers need to proactively provide a copy of their anti-harassment policy via hard copy, e-mail or intranet.  Further employers must ensure employees understand and affirmatively acknowledge receipt of such policies. Employers must also translate such policies into all languages that are spoken by 10 percent or more of their workforce.

D) The new regulations require more from employer policies. Specifically, employers must develop a harassment, discrimination, and retaliation prevention policy that:

(1) Is in writing.

(2) Lists all current protected categories covered under the Act.

(3) Indicates that the law prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee comes into contact from engaging in conduct prohibited by the Act.

(4) Creates a complaint process to ensure that complaints receive: confidentiality to the extent possible; a timely response; impartial and timely investigations by qualified personnel; documentation and tracking for reasonable progress; appropriate options for remedial actions and resolutions; and timely closures.

(5) Provides a complaint mechanism that doesn’t require an employee to complain directly to his or her immediate supervisor, including an alternate reporting structure, a complaint hotline, or access to an ombudsperson.

(6) Instructs supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager, so the company can try to resolve the claim internally.

(7) Indicates that when an employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.

(8) States that the employer will keep the investigation confidential to the extent possible, but does not promise complete confidentiality.

(9) Indicates that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.

(10) Makes clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.

As a result of these new obligations, employers should review their harassment, retaliation and training policies to ensure compliance with the regulations.  As always, my colleagues and I are available to answer any questions.

On January 1, 2016, California put into place the nation’s most demanding law against gender-based wage disparities. We’ve written about this new law extensively. Keith Chrestionson also wrote this excellent piece for Corporate Counsel.

Now, with the law barely a month old, a bill has been introduced to extend the Fair Pay Act’s protections to wage disparities based on race and ethnicity. This new bill, SB 1063, is a long way from passing. But we’re seeing the start of a trend here and should expect to see more protected categories added over time.

The problem with the Fair Pay Act isn’t that it prohibits discrimination. All discrimination is equally odious, whether it’s based on gender, race, ethnicity, religion, age, disability, sexual orientation, or any of the other categories protected by the state’s anti-discrimination laws.

But while other laws require the employee to prove discrimination, the Fair Pay Act puts the burden on the employer to disprove discrimination. The plaintiff just has to point to two people in similar (not identical) jobs who earn different amounts and the employer then has prove that the difference is based on one or more legitimate factors, that the factors relied on are applied reasonably, and that those factors account for the entire wage disparity.

In almost every other type of lawsuit, the burden of proof is placed on the person claiming to be wronged. Putting the burden on the employer to disprove discrimination is fundamentally unfair. Add in double damages and attorneys’ fees and there’s a huge incentive for employees to bring these claims.

Want to know how to prepare your company? Here’s a good place to start.