The California Chamber of Commerce employment law team has been on the road throughout January, conducting Employment Law Updates seminars and explaining changes that transpired over the previous year that impact workplace practices and policies. In this episode of The Workplace podcast, CalChamber Executive Vice President and General Counsel Erika Frank and employment law experts Matthew Roberts and Bianca Saad recap the topics on which they received the most questions during their seminars: the CROWN Act, expansion of lactation accommodation law, wildfire regulations, and meal and rest breaks.
If you have not attended an Employment Law Updates (ELU) seminar, sign up for the CalChamber’s live webinar on January 30.
The CROWN Act
The Creating a Respectful and Open World for Natural Hair (CROWN) Act, which took effect on January 1, 2020, expands the definition of race in the Fair Employment and Housing Act (FEHA) and Education Code.
The law “…include[s] in the definition of race…traits historically associated with race, including, but not limited to, hair texture and protective hairstyles,” Frank explains.
Additionally, Frank continues, the statute “defines protective hairstyles to include, but not limited to, hairstyles such as braids, locks, and twists.”
Roberts explains that many seminar attendees had questions about whether this updated definition of race affected dress code policies, the equal employment opportunity policy or safety protocols: Do employers have to add protected hairstyles and textures to their policy? If employees are working on manufacturing equipment, can employers still require protective headgear or require employees to tie their hair back?
Another common question was about hair color — what do employers do if employees are showing up with electric pink or electric blue hairstyles? The answer, Roberts says, is that employers can still prohibit that kind of hairstyle (pink- or blue-colored hair) on the basis of the color because it is not included in the definition of race under the CROWN Act.
Expansion of Lactation Accommodation Law
When explaining the new lactation accommodation law, one question that soon comes up is whether a designated room needs to be solely dedicated for lactation purposes.
Saad clarifies that, “as long as the room is available for a lactating employee to use and meets all of the other requirements, that [room] is going to be enough….”
Some attendees also have asked whether a conference room may be used under the new lactation law. Saad emphasizes that a multipurpose room, such as a conference room, is acceptable as long as it meets all requirements and as long as an employee’s use of the room for lactating purposes takes priority.
For example, Frank says, “if the conference room is the lactation room and there’s a meeting that’s going on, but now the employee who needs the accommodation needs the room, [then] the employee [who] needs the accommodation gets the room and the meeting has to go someplace else.”
What also stirs many questions at the seminars is who needs to receive the lactation accommodation policy, Frank says. For the distribution of the policy, the statute doesn’t distinguish between gender. It simply requires, in addition to being in the handbook, that the policy is distributed at time of hire and when an employee is requesting parental leave, Saad explains.
Wildfire regulations “… generally just obligates employers to view the air quality during the times of wildfires and if it reaches a certain concentration of smoke, [it] requires the employers to take some kind of protective measures for the safety of employees, such as bringing them inside or offering them respirators,” Roberts says.
Since the regulations are broad, the common question of “how do I know if these wildfire regulations apply to my business?” is tricky to answer, Roberts points out. Employers, he clarifies, are obligated to undertake these actions if any of their employees spend a cumulative time of one hour outside or are exposed to outdoor air for a cumulative time of one hour.
Other common questions are about employees who spend some time outside but not all day, and about employees who drive to different locations or don’t come to the central workplace and how to account for these employees.
“An interesting part of the regulation requires an update to your IIPP or your Injury and Illness Prevention Plan, which includes how you’re going to communicate with employees and how you’re going to prepare for those employees who may be subject to this outdoor smoke…,” Roberts says.
Some of the best practices, he continues, include being prepared, having a communication plan in place and providing respirators to employees to keep in their vehicle in case they need it.
Frank points out that wildfire regulations are still in emergency status, and a final rule has yet to be issued.
Meal and Rest Breaks Policy
The requirement for meal and rest break policies has been around for a long time, yet this rule is still troubling a lot of employers. Last year, the CalChamber saw a number of cases regarding meal and rest break rules because of a mistake, the lack of having a consistent policy or enforcing the rules, Frank says.
Saad recommends having a “meal and rest break policy in place that’s going to let the employees know … what the expectations are, when they need to be taking their meal and rest breaks, and also that the policy is in fact enforced when those meal break violations occur.”
In fact, the CalChamber has seen situations where employers win their case in part because they had a policy in place and were enforcing it, Frank adds.
One interesting California Supreme Court case will be deciding whether California law even requires a meal and rest break policy in place, Frank says.
The court will be “addressing, in fact, whether the absence of that formal policy will be considered a violation of California law,” Saad explains.
Another case covered in the ELU seminars addresses rounding in meal and rest breaks. In the court case, rounding would make the break punches look like 30 minutes, even if the actual punches were not 30 minutes, Roberts explains. The court case decided that rounding is acceptable, but the decision is subject to review.
Employers who implement rounding practices should continue to audit time punches to ensure the rounding is still compliant with state law, Roberts says.
Frank also recommends that employers consult with legal counsel if they implement rounding practices.
Live Webinar Available on January 30
Join Frank, Saad and Roberts on January 30 for a live 2020 Employment Law Updates webinar that will review:
- Court cases relevant in 2020;
- New laws for 2020;
- Midyear updates to laws and regulations, including wildfire/smoke regulations;
- Pending regulatory changes;
- Practical compliance tactics; and
- Best practices.
Purchase of the webinar includes a recorded version of the live event and downloadable webinar slides. The webinar is mobile-optimized for viewing on tablets and smartphones.