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Advisory Re New Employment Regulations

As most California employers know, the complex snare of laws that control employment in the state is broad and constantly expanding. Under the Fair Employment and Housing Act (“FEHA”) it has become even more complicated. Employers with 5 or more employees are subject to the new FEHA regulations. These new regulations now apply if you collectively have 5 or more employees located anywhere in the United States, one of which is located in California. This means that if you have 1 employee in California and 4 or more employees somewhere outside of California, the new FEHA regulations discussed below apply to you and you can be sued for failure to comply. Moreover, if you have any employees who are out on leave (such as medical leave), they also count toward the 5-employee requirement as well. The new FEHA regulations now impose the following obligations upon affected small employers: Acceptance of Drivers’ Licenses Issued to Undocumented Persons. FEHA was amended last year to make it unlawful for an employer to discriminate against an applicant or employee because they hold a driver’s license issued under California law to undocumented individuals. These new regulations state that employers may require an applicant or employee to hold or present any form of driver’s license only if possession of a driver’s license is required by state or federal law for the position in question or possession of a driver’s license is uniformly required by the employer and is otherwise permitted by law such as completing an I-9 form, although such a policy may be evidence of a violation of the FEHA if the policy is not uniformly applied or is not justified by legitimate business reasons. Require employers to now develop, implement and communicate new anti-discrimination and harassment policies that meet numerous new and detailed requirements. While California employers have always been required to distribute the Department of Fair Employment and Housing (“DFEH”) brochure on sexual harassment (Form DFEH-185) to employees, effective April 1st you are now required to do a lot more. Under these new regulations, employers must have in place written anti-discrimination and anti-harassment policies that undertake each of the following:

  • Identify each of the following categories of individuals who are protected by FEHA: age (40 and over), ancestry, color, religious creed (including religious dress and grooming practices), denial of Family and Medical Care Leave, disability (including mental and physical, HIV and AIDS), marital status, medical condition (including cancer and genetic characteristics), genetic information, military and veteran status, national origin (including language use restrictions), race, gender (including pregnancy, childbirth, breastfeeding and medical conditions related to pregnancy, gender identity, gender expression and sexual orientation).

  • State that the FEHA prohibits co-workers, third parties, supervisors and managers from engaging in discriminatory, harassing or retaliatory conduct.