Along with the numerous new laws that hit the books in 2020, employers can expect new employment regulations to take effect later this year. The Fair Employment and Housing Council (FEHC) has two rulemaking actions in progress that include proposed regulations for the New Parent Leave Act (NPLA), the California Family Rights Act (CFRA), criminal history, and religious creed and age discrimination. Here’s a brief summary of the regulations and when they’re likely to take effect.
Religious Creed, Age Discrimination
In June 2019, the FEHC proposed regulations addressing religious creed and age discrimination primarily in pre-employment practices (such as recruiting and advertising) that, if approved, could go into effect as soon as July 1, 2020.
These proposed regulations state that inquiries about an applicant’s work availability (i.e., shift schedules) “must clearly communicate that an employee need not disclose any scheduling restrictions based on legally protected grounds.” It offers the following example employers can use to lawfully inquire about work availability: “Other than time off for reasons related to your religion, disability, or medical condition, are there any days or times when you are unavailable to work?”
The regulations also specify that if online applications screen out applicants based on schedule availability, it may have a disparate impact — and it’s unlawful unless job related, consistent with business necessity and allows for the applicant to request an accommodation.
Employers should review any questions on their applications (online or off) related to scheduling.
Regarding age discrimination, the proposed regulations create a presumption of age discrimination for practices that have an adverse impact on applicants and employees age 40 or over, even if the practice or policy looks neutral and does not specifically or expressly target older workers. To overcome this, employers must show that the practice is “job related and consistent with business necessity.”
The regulations also substantially limit the language that can be used in recruiting and advertising, prohibiting anything that a “reasonable person would interpret as deterring or limiting employment of people age 40 and over.”
For example, the regulations state employers may not include maximum experience limitations, may not use terms like “young,” “recent college graduate,” or “digital native,” which implies the person grew up using technology. The regulation’s broad language may create a slippery slope here, calling into question a variety of terms commonly used in job advertisements, such as an employer looking for “fresh” ideas, “new” perspectives for the “future,” someone “adaptable” who “tries new approaches,” the “leader of tomorrow” (examples from current advertisements). Under the new regulation, using this type of language may be problematic.
Employers should consult with legal counsel about any practices that may disparately impact workers age 40 and older and to ensure their preemployment practices are compliant.
Criminal Background Checks and the NPLA
The FEHC first proposed its criminal background check and NPLA regulations back in 2018, less than two months after the NPLA and the ban-the-box laws went into effect. Since then, the FEHC has been tinkering with the language but still has yet to finalize it — though it’s getting closer.
The draft regulations integrate the NPLA — which requires employers with 20 or more employees to provide eligible employees with up to 12 weeks of unpaid, job protected leave to bond with a new child — into the existing CFRA regulations, which would provide some clarity to employers trying to comply with the NPLA.
The draft regulations also try to clarify when employers may consider an applicant’s criminal history consistent with the state’s ban-the-box law, including specifying what kinds of criminal history may or may not be considered, and the procedures for consideration and denial of applicants.
At its meeting on February 25, 2020, the FEHC said it would likely have another comment period for this action, which means the regulations may undergo further changes and not go into effect until October 2020 — or later.
James W. Ward, Employment Law Subject Matter Expert/Legal Writer and Editor
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