HIGHLIGHTS:

• Regulations issued on July 1, 2018, by California's Fair Employment and Housing Council (FEHC) expand the Fair Employment and Housing Act's (FEHA) protections against national origin discrimination.
• California employers should ensure that these new requirements are incorporated into Equal Employment Opportunity (EEO) policies covering applicants and employees, and are included in recruiting, hiring and retention practices and protocols.
• Also effective on July 1, 2018, are minimum wage hikes in several Southern California cities as well as the County of Los Angeles.

Regulations issued on July 1, 2018, by California's Fair Employment and Housing Council (FEHC) expand the Fair Employment and Housing Act's (FEHA) protections against national origin discrimination. Also effective on July 1, 2018, are minimum wage hikes in several Southern California cities as well as the County of Los Angeles.

New FEHA Regulations Address National Origin Protections

FEHA will prohibit 1) requiring that a specific language be spoken in the workplace; 2) requiring a certain level of language proficiency; 3) using pretextual citizenship requirements as a precondition to employment; and 4) threatening to contact or actually contacting immigration authorities or law enforcement in retaliation for engaging in protected activities.

Expanded Definition of National Origin

"National origin" now includes the individual's or the individual's ancestors' actual or perceived:

1. physical, cultural or linguistic characteristics associated with a national origin group
2. marriage to or association with persons of a national origin group
3. tribal affiliation
4. membership in or association with an organization identified with or seeking to promote the interests of a national origin group
5. attendance or participation in schools, churches, temples, mosques or other religious institutions generally used by persons of a national origin group, and
6. name that is associated with a national origin group

2 Cal. Code. Regs. §11027.1(a).

"English-Only" and Other Language Restrictions Banned Except in Limited Circumstances; Employers Face High Bar in Establishing Exceptions

Employers are now barred from limiting or prohibiting the use of any language in the workplace unless they can meet the following requirements: the language restriction is justified by business necessity; the restriction is narrowly tailored; and the employer notifies employees of when the restriction is in place and the consequence for violating it. 2 Cal Code Regs. §11028(a). To establish "business necessity," the employer must demonstrate "an overriding legitimate business purpose," such that 1) "the language restriction is necessary to the safe and efficient operation of the business"; 2) "the language restriction effectively fulfills the business purpose it is supposed to serve"; and 3) "there is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact." 2 Cal. Code Regs. §11028(a). Employers cannot rely on "business convenience" or customer or co-worker preference to justify a restrictive language policy. Under no circumstances may employers restrict the use of language during an employee's free time such as meals, rest breaks or unpaid employer events.

Employers cannot discriminate against employees or applicants based on their accents, unless the accent "interferes materially" with the ability to perform the job. 2 Cal. Code Regs. §11028(b).

Employers may not discriminate against employees or applicants on the basis of English proficiency unless the English proficiency requirement is justified by a business necessity. 2 Cal. Code Regs. §11028(c). For English proficiency requirements, "business necessity" is determined using a multi-factor test, including consideration of "the type of proficiency required (e.g. spoken, written, aural and/or reading comprehension), the degree of proficiency required, and the nature and job duties of the position." 2 Cal. Code Regs. §11028(c). If justified by a business necessity, an employer may seek information from an employee or applicant regarding his or her ability to speak, read, write or understand any language. 2 Cal. Code Regs. §11028(d).

Expanded Protections against Retaliation

Protections against retaliation based on national origin have been expanded. 2 Cal. Code Regs. §11028 (e). Retaliation may include:

(1) threatening to contact or contacting immigration authorities or a law enforcement agency about the immigration status of the employee, former employee, applicant, or a family member (e.g., spouse, domestic partner, parent, sibling, child, uncle, aunt, niece, nephew, cousin, grandparent, great-grandparent, grandchild, or great grandchild, by blood, adoption, marriage, or domestic partnership) of the employee, former employee, or applicant; or

(2) taking adverse action against an employee because the employee updates or attempts to update personal information based on a change of name, social security number, or government-issued employment documents.

Ban on Inquiries About Immigration Status

Significantly, the protections apply to "undocumented applicants and employees" to the same extent that they apply to any other applicant or employee. "Discovery or other inquiry into an applicant's or employee's immigration status shall not be permitted unless the person seeking discovery or making the inquiry has shown by clear and convincing evidence that such inquiry is necessary to comply with federal immigration law." It is an unlawful employment practice to discriminate against an employee or applicant because of that individual's immigration status, unless the employer demonstrates by clear and convincing evidence that such action was necessary to comply with federal immigration law. 2 Cal. Code Regs. §11028 (f).

Anti-Human Trafficking Provision

It is an unlawful employment practice for an employer "to use force, fraud, or coercion to compel the employment of, or subject to adverse treatment, applicants or employees on the basis of national origin." 2 Cal. Code Regs. §11028(i).

Harassment Prohibited

The new regulations specify that it is illegal to harass an applicant or employee on the basis of his or her national origin. Singled out as examples of such harassment are "threats of deportation, derogatory comments about immigration status, or mockery of an accent or a language or its speakers." 2 Cal. Code Regs. §11028(j).

Height and Weight Requirements May Create Disparate Impact

Though height and weight restrictions are facially neutral, such restrictions "may have the effect of creating a disparate impact on the basis of national origin." 2 Cal. Code Regs. §11028(k).When height and weight restrictions disproportionately impact a particular national origin, the employer must demonstrate that the restrictions are job related and justified by business necessity. Even if a restriction is justified, it will still be unlawful if the employee can show that the purpose of the restriction would be achieved through less discriminatory means.

Unlawful Practices in Recruitment and Job Assignment

It is also an unlawful employment practice for an employer to "seek, request, or refer applicants or employees based on national origin or to assign positions, facilities, or geographical areas of employment based on national origin, unless pursuant to a permissible defense." Additionally, because "national origin" includes "linguistic characteristics associated with a national origin group," this provision may operate to limit employers from seeking job applicants with certain language skills or from targeting specific job markets. 2 Cal. Code Regs. §11028(l).

Next Steps for Compliance

California employers should ensure that these new requirements are incorporated into Equal Employment Opportunity (EEO) policies covering applicants and employees, and are included in recruiting, hiring and retention practices and protocols. The new requirements should also be incorporated into any processes and protocols using third parties in recruiting, hiring or employee retention. Updating training programs to reflect these new requirements is also an essential element of compliance.

Minimum Wages Increased for Employees in Some Cities, Counties

New minimum wage requirements set by the cities of Los Angeles, Pasadena and Santa Monica took effect on July 1, 2018. Under current law, these local requirements supersede the California minimum wage set by the Legislature. Tips cannot be counted towards the new minimum wages. New minimum wage postings must also be displayed. Notices to employees of these changes must be made in writing within seven calendar days, unless the changes are clearly noted in wage statements.