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California Legal Developments of 2012
Religion and Sex Amendments to the California Fair Employment and Housing Act (“FEHA”)
Summary:
The California legislature amended two aspects of the FEHA. The first provides protection from discrimination and harassment based on an employee’s “religious dress practice” or “religious grooming practice.” The second alteration provides protection from discrimination or harassment based on an employee’s breastfeeding or medical conditions related to breastfeeding.
The FEHA has always prohibited discrimination based on religion. The amendment extends this protection to an employee’s religious clothing and religious grooming. Courts must broadly construe the protections provided. An employee’s religious dress may "include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed." Grooming practice includes “all forms of head, facial, and body hair that are part of the observance by an individual of his or her religious creed." Segregating an employee from the public or other employees is not a reasonable accommodation for religious dress or grooming.
Likewise, the FEHA has always prohibited discrimination based on sex and medical condition. We have previously advised that these protections extended to discrimination or harassment based on breastfeeding or medical conditions arising from breastfeeding. Various California and federal courts have ruled inconsistently on the issue. This amendment of the FEHA seeks to clarify that the FEHA previously provided protection to breastfeeding women in the workplace, and the amended law states that the changes it makes are not new, but a declaration of the existing law. California has a long history of providing protections to new mothers and nursing mothers.
Take Away:
Employers should examine their current dress codes and grooming standards for compliance with the amended FEHA. Some employers have had blanket restrictions on Islamic headdresses for women or turbans for men. Likewise, the Sikh community has long suffered discrimination based on the traditional headwear of its male adherents and the grooming standards required by their faith. Any such universal restrictions are likely violations of California law. Individual restrictions in some positions may be permissible on a case-by-case basis. If you believe that a religious accommodation for dress or grooming would impose a hardship on your company, threaten the health and safety of your employees, or would otherwise be impossible, please contact the Post Legal Group for advice from qualified employment counsel.
If you are an employee and your employer has prevented you from practicing your religion, please contact the Post Legal Group for a consultation regarding your legal rights.
Please visit this page regularly for updates on important issues in employment law and advice on navigating the murky waters of California law.
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Employment News from Post Legal Group
Injury Imputed from Inaccurate Wage Statements
Summary:
California Labor Code section 226 provides requirements that every employer must follow regarding the contents and preservation of wage statements provided to employees. The section states that an employee may collect penalties if he or she suffers injury from an employer’s failure to follow the requirements of the section. Until now, employers have argued that simply providing an employee with an inaccurate wage statement was not an “injury” under the Labor Code unless the employee proved he or she suffered some additional injury because of the inaccurate wage statement. This argument met with mixed success, but often reduced or eliminated the penalties assessed to employers for inaccurate or incomplete wage statements.
The California legislature has now amended section 226(e) to state that an employee suffers injury if an employer fails to provide a wage statement to that employee. Likewise, if any of the nine specific requirements of section 226(a) are incomplete or inaccurate the employee suffers an injury. Finally, an injury occurs if an employee cannot "promptly and easily determine" from the wage statement the amount of gross or net wages paid; deductions the employer made from the gross wages affecting the net wages; the name and address of the employer or legal entity employing the employee; or the name of the employee and only the last four digits of the employee's Social Security number or an employee identification number.
Take Away:
Employers should ensure that their wage statements are in compliance with Labor Code section 226. Many employers have assumed that because payroll is handled by a large national organization they have nothing to worry about. This is often an inaccurate assumption. Counsel for Post Legal Group have defended cases where the paychecks and wage statements were processed completely out-of-house by reputable companies that still made errors.
If you are an employee who has not recieved a wage statement, your rights may have been violated. If you have recieved wage statements that do not contain the following information your rights may have been violated.
- (1) gross wages earned,
- (2) total hours worked by the employee, except for any employee whose compensation is solely based on a salary and who is exempt from payment of overtime under subdivision (a) of Section 515 or any applicable order of the Industrial Welfare Commission,
- (3) the number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate basis,
- (4) all deductions, provided that all deductions made on written orders of the employee may be aggregated and shown as one item,
- (5) net wages earned,
- (6) the inclusive dates of the period for which the employee is paid,
- (7) the name of the employee and the last four digits of his or her social security number or an employee identification number other than a social security number,
- (8) the name and address of the legal entity that is the employer and, if the employer is a farm labor contractor, as defined in subdivision (b) of Section 1682, the name and address of the legal entity that secured the services of the employer, and
- (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee.
California Secure Choice Retirement Savings Trust Act
Summary:
This law will require that eligible employers, essentially an employer with five or more employees, provide way for employees to contribute a portion of their wages to a retirement savings account directly from their paycheck into the California Secure Choice Retirement Savings Program. Eligible employees must participate in the program, unless they opt out under the program’s guidelines. The California Secure Choice Retirement Savings Program is currently under review by the Department of Labor and the Internal Revenue Service. Once it receives federal approval, it will go into effect for all non-union employees in the state.
Take Away:
Employers should contact the Post Legal Group to discuss the implementation of this law.
