Breaking News: New CFRA regulations will take effect July 1, 2015.
Mandatory paid sick leave will not be the only new rule affecting California employers this summer. Also effective on July 1 are amendments to the California Family Rights Act (CFRA) regulations, just approved by the Office of Administrative Law. These regulations will more closely align the CFRA with the federal Family and Medical Leave Act (FMLA) regulations. This is welcome news to California employers who have grappled with the overlay of the FMLA regulations (amended in 2008) and the pre-2008 CFRA regulations (which did not incorporate the FMLA’s 2008 amended regulations.) Nonetheless, some differences still exist between state and federal family and medical leave laws, including how the CFRA coordinates with state pregnancy disability leave laws.
Quick preview: The amended CFRA regulations include guidance on certain definitions (such as how to determine when businesses will be considered joint employers under CFRA), include changes to the mandatory poster requirement, and change what information employers must include on the certification form they make available to health care providers who are asked to certify leave for serious health conditions.
Coming soon: A complete analysis of the new amendments will follow shortly, so that you can be prepared when the amendments “go live” in July. We will also be hosting a webinar on the subject, which you will not want to miss!
Is California Poised to Be the First State to Outlaw Workplace Bullying? Or Will New York Beat Us to It?
Following an amendment (AB 2053) to the Fair Employment and Housing Act (FEHA) that took effect January 1, 2015, California employers that are subject to the mandatory sexual harassment training requirement for supervisors must now include an additional training topic: prevention of “abusive conduct.” Read the text of the bill here.
Readers will recall that existing law (AB 1825, codified at Cal. Gov’t Code § 12950.1) requires employers with 50 or more employees to provide all California supervisory employees with at least two hours of effective interactive training on sexual harassment prevention. New supervisors must be trained within six months of being promoted or hired into a supervisory position and, thereafter, every two years. The required training must include “information and practical guidance” regarding federal and state laws concerning sexual harassment, remedies available to victims of harassment, and practical examples to instruct the supervisors participating in the training. Now, in addition to the previously required topics, employers must include a segment aimed at the prevention of abusive conduct in the workplace.
What does that mean?
The new law defines “abusive conduct” broadly and vaguely as:
“Conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.”
Notably, the new law does not make “abusive conduct” unlawful under the FEHA (absent proof of some unlawful discriminatory motive); rather, the new law merely amends the training requirement. So while employers need not adopt a policy prohibiting abusive conduct, they must provide training aimed at curbing this type of behavior in the workplace.
But is this new emphasis on workplace bullying a sign that additional legislation is on the horizon?
Presently, no state has enacted a law against workplace bullying. At last count, laws requiring training or aimed at raising awareness of the issue have been introduced in 28 States and two U.S. Territories. Taking it a step further, New York Assemblyman Steve Englebright introduced legislation on January 22, 2015, which would establish a civil cause of action for employees who are subjected to an abusive work environment (AB 3250, or “the Healthy Workplace Bill.” Read the text of A 3250 here.) Currently, California has no similar legislation pending, but we are keeping a watchful eye out for it.
In the meantime, employers who do wish to enact a workplace policy prohibiting abusive conduct unrelated to an employee’s protected class, protected activity or workplace violence, should be mindful of how the policy is phrased. First, even unquestionably benign policies have been attacked by a hypercritical National Labor Relations Board, which reads vague prohibitions in employment policies as restricting concerted activity that the National Labor Relations Act protects against employer interference. Second, an anti-bullying policy must be carefully drafted to minimize the risk that employees will treat it as the source of some enforceable contractual right. Thus, anyone crafting an anti-bullying policy should heed the folk wisdom that “no good deed goes unpunished.”