The California Civil Rights Council has been working on proposed regulation revisions to include automated decision-making in the requirements under the Fair Employment and Housing Act.

The Council met on October 17, 2024, for public comment on the most recent version of the regulations and voted to extend the comment period to 30 days, though typically the period is only 15 days.
Here are some of the highlights of the proposed regulations:

 Definitions

  1. An automated decision system (ADS) is defined as a “computational process that screens, evaluates, categorizes, recommends, or otherwise makes a decision or facilitates human decision-making that impacts applicants or employees.” the definition excludes word processing software, spreadsheet software, and map navigation systems.
  2. Adverse impact (or disparate impact) includes the use of a facially neutral practice that may create a substantial disparity in the rate of selection in hiring, promotion, or other employment decisions that work to the disadvantage of a group of individuals on a basis protected by the Fair Employment and Housing Act (FEHA).
  3. “Proxy” means a technically neutral characteristic or category correlated with a basis protected by FEHA.
  4. The regulations add examinations or inquiries administered in whole or part of an ADS as being included under the definition of medical or psychological examination.

Revisions to Existing Regulations

Under the proposed regulations it is unlawful for an employer to use an ADS or selection criteria that harms an applicant or employee on a basis protected under FEHA.

The regulations propose that ADS that measures an applicant’s skill, dexterity, reaction time, and/or other abilities or characteristics may require employers to provide accommodations as they would in other situations.  The same would be the case for ADS used to measure reactions or similar during interviews.

 The regulations add ADS to the list of methods for searching for criminal background history that are prohibited before a conditional offer of employment.

Recordkeeping

Subject to the current requirements under FEHA regulations to preserve personal and other employment records received by an employer, employers must include the following:

  1. All applications
  2. Personnel records
  3. Membership records
  4. Employment referral records
  5. Selection criteria
  6. Automated decision system data
  7. Other records related to a policy practice or decision affecting an applicant or employee

For those interested in submitting comments about the proposed regulations, they can be submitted until November 18, 2024, and addressed to:

Civil Rights Department
c/o Rachael Langston, Assistant Chief Counsel
555 12th Street – Suite 2050
Oakland, CA 94607
Telephone: (916) 478-7251

Comments can also be submitted via email to: council@calcivilrights.ca.gov. The Council has indicated a preference for submissions via email.

If you have questions on the use of automated decision-making or related issues, contact a Jackson Lewis attorney to discuss.

The California Labor & Workforce Development Agency (LWDA) recently published Frequently Asked Questions (FAQ)  on the Private Attorneys General Act (PAGA), providing an overview of the complicated law and the recent amendments.

The FAQ covers PAGA basics and provides guidance to employers on the new procedures introduced by the recent amendments.

Covered Employers

The FAQ specifies only private employers are subject to PAGA lawsuits. This was also discussed in the California Supreme Court decision in Stone v. Alameda Health System.

PAGA Recovery

The FAQ reviews what is recoverable under PAGA. Under PAGA, a plaintiff seeks penalties for alleged labor code violations, with the amount depending on the type of violation. The penalties fund enforcement of labor laws and education for employers and employees. For notices filed before June 19, 2024, 75% of the penalties go to the State of California and 25% to the aggrieved employees. For notices filed on or after this date, the allocation changes to 65% for the state and 35% for employees.

Additionally, courts may order employers to cease unlawful practices.

If employers took reasonable steps to comply with the law before receiving a notice, penalties can be reduced to 15% or 30% if they comply within 60 days, with certain exceptions.

Cure Process

The FAQ addresses the cure processes for employers. The recent amendments allow employers to fix certain violations during the notice period, avoiding lawsuits and penalties. Starting June 19, 2024, the list of curable violations includes minimum wage, overtime, meal breaks, expense reimbursement, and wage statement requirements. Cure proposals, treated as confidential, must be submitted online via the PAGA Filing Portal.

Before October 1, 2024, employers were required notify employees and the LWDA within 33 days of a PAGA notice. From October 1, 2024, all employers can cure wage statement violations, while those with fewer than 100 workers can propose cures for other issues. The LWDA will review proposed cures and may hold conferences. If not resolved, employees can file PAGA lawsuits. Appeals can be made to the Superior Court.

Effective Cure

The FAQ details what is required under the statute for a cure, including correcting the alleged violation and making the aggrieved employee whole. The FAQ lists what must be included for unpaid wages and wage statement cures.

Explanation of Early Evaluation Conference

The FAQ also discusses the new early evaluation conference from the recent amendments. Employers with at least 100 employees can request this conference and a stay of court proceedings when served with a summons and complaint. Overseen by a neutral evaluator, this process aims to resolve disputes early in court, separate from the LWDA’s administrative cure process.

Though not detailed in the FAQ, employers with less than 100 employees can also make use of the stay and early evaluation conference, but must first submit to the LWDA for consideration of proposed cure plans and related information.

If you have questions about PAGA or related issues, please contact a Jackson Lewis attorney to discuss.  Jackson Lewis has seven offices in California to assist employers.

At the end of June, the Governor paused the California health care worker minimum wage due to budget concerns. The bill was delayed until certain state budget circumstances occurred, which happened on October 1. Now the minimum wage for health care workers will take effect October 16, 2024.

To assist with the implementation of the new minimum wage, the Labor Commissioner has published a Frequently Asked Questions page on the law.

The FAQ includes explanations of the following:

  • Who is covered by the law?
  • The schedule for increases based on the size and type of facility
  • Special rules for public covered health care facilities
  • Notices to employees

The FAQ also links to the required Health Care Minimum Wage Supplement to the minimum wage order.

Employers also should look beyond the new law to derivative issues like wage compression, employee morale, and management training regarding how to communicate complex compensation issues.

If you have questions about the health care worker minimum wage or related issues, contact a Jackson Lewis attorney to discuss.

San Diego County recently passed its own Fair Chance Ordinance which takes effect on October 10, 2024. The ordinance applies to businesses operating in the unincorporated areas of San Diego County. Similar to the Los Angeles County ordinance, it requires employers to assess the risk presented by an applicant’s criminal history in relation to the position sought.

Covered Employers

The ordinance covers employers with five or more employees, doing business in the unincorporated areas of San Diego County.

Covered Employees

The law applies to employees performing at least two hours of work on average each week within the unincorporated areas of the County.

The ordinance specifies that it includes remote work from a location within the unincorporated areas of the County.

Prohibitions Under Ordinance

Under the ordinance covered employers are prohibited from:

  • Declaring in a job posting or similar listing any limitation due to a conviction or arrest unless required by law.
  • Include in an application or similar document prior to a conditional offer of employment, any question that directly or indirectly asks about the individual’s criminal history.
  • Taking an adverse action against an applicant based on a criminal history information until after a conditional offer of employment is made.
  • Inquire or consider certain items such as convictions that have been sealed, diversion programs, or arrests not followed by conviction.

Employer Obligations

Under the ordinance covered employers who intend to take adverse action in response to an applicant’s criminal history shall make a written individualized assessment of whether the criminal history has a direct and adverse relationship with the specific duties of the job. If an employer decides to take adverse action based on an applicant’s criminal history, they must provide the applicant with a written notice, a copy of the background check report, and an opportunity for the applicant to respond.

Employers must retain records related to all employment applications and written assessments for one year following receipt.

If you have questions about San Diego’s Fair Chance Ordinance or related issues contact a Jackson Lewis attorney to discuss.

The deluge of candidate introduction postcards and special interest group mailers urging us to vote “Yes!” or “No!” on particular issues that flood our mailboxes daily reminds us that election season is just around the corner.To ensure that all Californians are able to exercise their right to vote, California law requires employers to provide employees with up to two hours of paid time off to vote if they do not have time to do so during non-work hours. Employers may require time off to be taken only at the beginning or end of the employee’s shift.

One of the key aspects of this law is the requirement for employers to post a notice informing employees of their rights to voting leave. This notice must be displayed at least 10 days before every statewide election in conspicuous locations such as in break rooms, near time clocks, or on bulletin boards.

The notice must clearly state the following:

  • Employees are entitled to take up to two hours of paid time off to vote.
  • The time off must be taken at the beginning or end of the work shift, whichever allows the most time for voting and the least time off from work unless otherwise mutually agreed upon.
  • Employees must give their employer at least two working days’ notice if they need to take time off to vote.

The State Attorney General’s website has template notices available.

If you have questions about voting leave or related issues, do not hesitate to contact a Jackson Lewis attorney to discuss.

Senate Bill 1137: California Amends Law to Clarify Protection for Combinations of Protected Characteristics

Assembly Bill 2499: California Amends Jury, Court, and Victim Time Off Provisions

Assembly Bill 2123: Changes in Managing Employee Leave under Paid Family Leave

Senate Bill 1100: New California Law Restricts Driver’s License Requirements in Job Postings

Senate Bill 1350: Your Hearth is Cal/OSHA’s New Home: The Agency’s Jurisdiction Expands to Include Household Domestic Services

Senate Bill 399: Governor Newsom Signs Law To Curtail Employer Mandatory Meetings With Employees During Union Organizing

Senate Bill 988: Understanding the Freelance Worker Protection Act – What Employers Need to Know

Assembly Bill 2975: California Passes Amendments to Healthcare Workplace Violence Prevention Requirements

Assembly Bill 1034: Construction Industry PAGA Exemption Extended Until 2038

Governor Newsom signed Assembly Bill (AB) 1034, which extends the exemption from the California Private Attorneys General Act (PAGA) for certain employees in the construction industry until January 1, 2038.

This extension applies to employees in the construction industry who are covered by a collective bargaining agreement (CBA) that meets specific conditions including:

  • Expressly provides for wages, hours of work, and working conditions of employees
  • Provides premium wage rates for all overtime worked
  • The employee receives a regular hourly pay rate of not less than 30 percent more than the state minimum wage.

To qualify, the CBA must prohibit all of the violations of the labor code that are redressable pursuant to PAGA and provide for a grievance and binding arbitration process to redress those violations.  The CBA must also expressly waive  PAGA’s requirements in clear and unambiguous terms and authorize the arbitrator to award any and all remedies available under the California Labor Code, with the exception of penalties that would otherwise be awardable to the Labor Workforce Development Agency.

If you have questions about AB 1034, or related issues, contact a Jackson Lewis attorney to discuss.

Hospitals must prepare now to comply with Assembly Bill (AB) 2975, which requires certain hospitals to implement a weapons screening policy and use specified weapons detection devices, other than handheld metal detector wands.

For years, California has led the nation in workplace violence prevention laws, beginning with workplace violence prevention standards for hospitals. The Occupational Safety and Health Standards Board (Cal/OSHA) adopted standards that mandated that hospitals prevent weapons from entering the facility by the use of safeguards, such as weapons detection devices, among other options.

Under AB 2975, by March 1, 2027, Cal/OSHA must adopt standards requiring hospitals to use automatic “security mechanisms, devices, or technology designed to screen and identify instruments capable of inflicting death or serious bodily injury” at three specific locations: the main public entrance, the entrance to the emergency department and at the entrance to labor and delivery if it is separate. This requirement will not apply to the ambulance entrance. The Standards Board will define a list of the security mechanisms, devices, or technologies that meet these requirements.

Handheld metal detector wands may continue to be used, but they must be used in connection with other automatic detection devices. Small and rural hospitals, entrances with space limitations, and hospitals providing extended care to patients with complex needs may continue to use only handheld detectors.

Adding additional costs, hospitals must also assign personnel, other than healthcare providers, to monitor and operate the devices. These personnel must receive at least 8 hours of training on the detectors, hospital policy if a weapon is detected, de-escalation, and implicit bias. Hospitals are required to post notices about weapons detection screening in conspicuous locations near public entrances where these devices are used.

If you have questions about AB 2975 or related issues, contact a Jackson Lewis attorney to discuss.

The California Governor recently signed Senate Bill (SB) 988, which establishes the Freelance Worker Protection Act (Act) which imposes minimum requirements relating to contracts between a hiring party and a freelance worker.

Under the new law, “freelance worker” is defined as a person or organization composed of no more than one person, whether or not incorporated or employing a trade name, that is hired or retained as a bona fide independent contractor by the hiring party to provide professional services in exchange for an amount equal to or greater than $250. The Act only applies to freelance-style services listed in California Labor Code Section 2778(b)(2).

Under the law, an agreement between a hiring party and a freelance worker must be in writing and include the following:

  • Names and addresses of both parties.
  • An itemized list of services, their value, and the compensation method.
  • Payment due dates or mechanisms for determining them.
  • Due dates the freelance worker to report completed services for processing timely payment.

Once a freelance worker has commenced providing services a hiring entity is prohibited from requiring the worker to accept less compensation or provide more services than previously agreed in order to receive timely payment.

The law always puts in place certain prohibitions against retaliatory actions by hiring entities for a freelance worker taking any of the following actions:

  • Opposing any practice prohibited by the Act
  • Participating in proceedings related to the enforcement of the Act
  • Seeking to enforce rights under the Act

The Act applies to contracts entered into or renewed on or after January 1, 2025.

If you have questions about the Freelance Worker Protection Act or related issues, contact a Jackson Lewis attorney to discuss.

Governor Newsom has officially signed Senate Bill (SB) 399 into law, which enacts the California Worker Freedom from Employer Intimidation Act (Act) to take effect January 1, 2025. California employers have been monitoring its passage because of its potential impact on an employer’s ability to lawfully communicate its position and educate employees regarding a labor organization.

The new California law attempts to prohibit mandatory employer meetings regarding labor organizations known as captive audience meetings. Specifically, an employer is prohibited from subjecting or threatening to subject an employee to discharge, discrimination, or retaliation because the employee declines to attend an employer-sponsored meeting or refuses to listen to any communications with the employer or its agents where the purpose is to communicate the employer’s opinion about religious or political matters which includes labor organizations. An employer who violates this section shall be subject to a civil penalty of five hundred dollars ($500) per employee for each violation.

“Political matters” has been defined to include matters relating to elections for political office, political parties, legislation, regulation, and the decision to join or support any political party or political or labor organization.

California joins other states, including Illinois, Connecticut, Hawaii, New York, and Oregon in enacting statutes that prohibit “captive audience” meetings, similarly limiting employers’ ability to conduct mandatory meetings on religious or political matters, including a labor organization.

Under this new California law, employers would be prohibited from mandating employees to attend employer information sessions regarding a labor organization even though the employer schedules the meeting during work time and pays employees to attend the meeting.

Certain types of employers are exempt from the new law, including religious corporations, political organizations or parties, educational institutions requiring a student or instructor to attend lectures on political or religious matters as part of the course work, and certain non-profits. The law also does not apply to an employer requiring employees to undergo training to comply with the employer’s legal obligations including civil rights and occupational safety and health laws.

Federal Preemption

Despite the states’ moving to ban captive audience meetings, an ongoing issue remains: the federal National Labor Relations Act (NLRA) preempts state law on such meetings.

The U.S. Chamber of Commerce continues to challenge these state laws through litigation and assert that they are preempted by Section 8(c) of the NLRA and violate the First and Fourteen Amendments.

General Counsel Initiatives 

National Labor Relations Board (NLRB) General Counsel (GC) Jennifer Abruzzo continues to advocate against captive audience meetings, including issuing a memorandum on April 7, 2022, (Memorandum GC 22-04) announcing she will argue that the Board should find employer captive audience meetings and related mandatory meetings violate the Act. Several groups have tried to challenge GC Abruzzo’s memorandum in Texas and Michigan district court, however, the district court in both matters found that it did not have jurisdiction to review prosecutorial decisions. Plaintiffs in both matters are appealing the decision and the matters are ongoing.

While the GC’s office cannot effectuate such a change in NLRB policy unilaterally, the GC can advance cases and arguments before the NLRB that advocate for a change in the law in this area, a change the employee-friendly Biden Board may support. This, of course, may be subject to change as 2024 is an election year and a change in administration would likely impact Board decisions.

Takeaways

Nonetheless, states imposing bans on mandatory captive audience meetings face an uphill battle due to federal preemption and decades of NLRB precedent. 

Effective January 1, 2025, employers subject to the California Worker Freedom from Employer Intimidation Act may need to consider whether it is in their organization’s best interest to make meeting attendance voluntary or proceed in accordance with the NLRA. While state law does not prohibit employees from voluntarily attending such meetings, there is a risk that abandoning mandatory attendance requirements could limit crucial employer-employee communication channels that are protected under federal law. 

If you have questions about SB 399, or related issues, please contact a Jackson Lewis attorney to discuss.