FindLaw IM Template 2025-07-08T06:01:50Z https://www.cronelawoffice.com/feed/atom/ WordPress /wp-content/uploads/sites/1602576/2021/05/cropped-Brain-Site-Icon-min-32x32.jpg by The Law Office of Brian Crone https://www.cronelawoffice.com/?p=46855 2025-06-20T18:24:05Z 2025-06-20T18:24:05Z

TIP NO. 1:  Be Prepared If you prepare for an ICE inspection, then Murphy’s Law provides that you will not be visited.  However, in reality, preparing for an inspection means that you will have all of your paperwork ready and know how to respond to the ICE agents appearing at your workplace.  Prior to any visit (meaning now) you should:

1. Identify a response team: What representatives from the Company will be authorized to respond to and address ICE agents;
2. Develop and distribute an ICE Protocol. What action(s) will the Company take should ICE agents arrive.  Make sure you train receptionists, managers, and supervisors on the ICE Protocol;
3. Conduct internal I-9 audits. Review all I-9s for current and former employees (past 12 months) and make sure they are all complete and you have the supporting documentation identified in the I-9;
4. Place signage establishing non-public work areas versus public work areas;
5. Have your legal counsel on speed dial. Be prepared to contact your attorney should ICE agents come to your workplace.

TIP NO. 2: Understand Differences Between an I-9 Audit, ICE Raid and Documentation Used During Workplace Visits ICE has different enforcement actions their agents are legally permitted to perform.  ICE can perform I-9 audits or perform judicially authorized searches of the workplace.  An I-9 Audit will commence with a Notice of Inspection (NOI).  The NOI will require a 3-day response window in which you will be obligated to produce all work authorization documentation for your current employees and for your former employees over the last 12 months.  Performing internal I-9 audits will assist you to respond to ICE’s NOI. An ICE Raid occurs when ICE agents arrive at the workplace and wishes to search it and/or detain potential undocumented workers.  In order for them to search non-public areas of a workplace, ICE agents must have a judicial warrant authorizing the search and/or arrest.  If ICE agents come to your workplace, your response team should ask to review the warrant that authorized the visit.  If the warrant is not executed by a judge from a Federal District Court, then it is an administrative warrant and ICE agents are not permitted to search non-public portions of the workplace. TIP NO. 3: What to Say – and Not Say When ICE Comes Knocking Do:

1. Ask for identification and purpose for the visit
2. Request a copy of any warrant or subpoena
3. Contact legal counsel who can interpret the paperwork and address the situation

Don’t:

1. Do not consent to a search
2. Do not speak on behalf of employees
3. Do not try and obstruct the agents from performing their responsibilities

TIP NO. 4: Understand Employee Rights and Protections Your employees always have the right to remain silent and do not have to disclose their immigration status, Country of origin, or how they entered the US.  In addition, California employees have anti-retaliation protections under California and federal law.]]> by The Law Office of Brian Crone https://www.cronelawoffice.com/?p=46854 2025-03-21T18:53:24Z 2025-03-21T18:53:24Z

On March 19, 2025, the EEOC, along with the Department of Justice, issued two “technical assistance documents” that seek to provide some clarity for employers seeking to comply with the administration’s direction on DEI policies or actions by private employers.  What You Should Know About DEI-Related Discrimination at Work and What To Do If You Experience Discrimination Related to DEI at Work.  Top points from the guidance, which is presented in more of a FAQ format:

• Scope of Title VII Protections: The guidance reminds employers that Title VII prohibits employment discrimination based on the protected characteristics identified in the law.  The guidance notes that Title VII’s protections “apply equally to all racial, ethnic, and national origin groups, as well as both sexes.”
• Reverse Discrimination Does Not Exist: The EEOC’s position is that ‘reverse discrimination’ does not exist, because Title VII’s protections do not only apply to individuals who are part of a “minority group.” Title VII’s protections apply to “majority groups,” apply equally to all workers, and there is no heightened showing of proof for so-called reverse discrimination claims.
• Business Necessity Exception Does Not Save DEI Programs: In limited circumstances, Title VII allows a bona fide occupational qualification to excuse hiring or other personnel decisions based on an individual’s religion, sex, or national origin.  This limited defense specifically excludes race and color.  EEOC’s new guidance expressly states that “diversity interest” shall not serve as an exception to Title VII’s prohibition on discrimination.  Specifically, the guidance states “No general business interests in diversity and equity (including perceived operational benefits or customer/client preference) have ever been found by the Supreme Court or the EEOC to be sufficient to allow race-motivated employment actions.”
• Potentially Unlawful DEI Practices: DEI policies, programs, or practices may be unlawful under Title VII if they involve “an employment action motivated – in whole or in part – by an employee’s race, sex, or another protected characteristic.”  Potential examples:

• • Quotas and other "balancing" practices based on race, sex, or other protected characteristics.
  • Disparate treatment, which means taking an employment action that is motivated (in whole or in part) by an employee’s protected characteristics.
  • Limiting, segregating, or classifying employees based on protected characteristics in a way that affects their status or deprives them of employment opportunities. This includes limiting membership in workplace groups, such as affinity groups, and separating employees into groups based on protected characteristics for DEI or other workplace trainings, even if the content is the same.
  • DEI Training can create hostile work environment harassment claims, depending on the facts. Harassment is illegal when it results in an adverse change to a term, condition, or privilege of employment.  Depending on the facts, an employee may be able to plausibly allege or prove that a diversity or other DEI-related training created a hostile work environment by pleading or showing that the training was discriminatory in content, application, or context.
  • The guidance provides that “reasonable opposition to a DEI training may constitute protected activity if the employee provides fact-specific basis for his or her belief that th training violates Title VII.

Employers should use these guidelines to evaluate their current DEI programs to determine if they are consistent with the EEOC’s current definition of DEI, and, if so, consider what actions to take as a result. The Trump administration, along with the EEOC and DOJ, will be pursuing aggressive enforcement against businesses that it believes engage in illegal DEI.  It remains unclear what the courts will do with the EEOC guidelines and whether courts will interpret Title VII consistent with the EEOC.  ]]> by The Law Office of Brian Crone https://www.cronelawoffice.com/?p=46853 2025-07-07T06:39:59Z 2024-12-06T18:44:38Z

TOP EMPLOYMENT LAW ISSUES TO KNOW FOR 2025 It’s that time of the year again when employers have to prepare for new legislation in 2025.  This year was not as burdensome for employers as it has been in years past.  The following are the top employment law issues to prepare for in 2025:

1. Minimum Wage Increase: The minimum wage is set to increase $16.50 on January 1, 2025.  The salary basis test for exempt employees is tied to the minimum wage.  Accordingly, the salary basis test for exempt employees (non-computer programming) increases to $68,640 (from $66,560).
2. California Bans Captive Audience Meetings: California passed the California Worker Freedom from Employer Intimidation Act, which prohibits employers from taking adverse action against any employee who declines to attend an employer sponsored meeting that discusses religious or political matters, including union-representation discussions.
3. California Employers Face New “Driver’s License Discrimination” Claim When Hiring: A new California law will prohibit California employers from telling job applicants that a driver’s license will be required for a job unless it reasonably expects driving to be one of the job functions AND no alternative forms of transportation would work.  SB 1100 amends the Fair Employment Housing Act to make it an unlawful employment practice to require a driver’s license unless the employer can meet to the two identified factors.
4. Workplace Protections for Victims of Crime or Abuse Reframed and Expanded: California has provided employee leave and accommodation protections for victims of certain crimes so that they may seek assistance. Labor Code section 230 prohibits employers from discharging or discriminating against an employee because of the employee’s status as a victim of “crime of abuse” or for taking time off for certain purposes (such as to appear in court as a witness).   Section 230 also requires employers to provide reasonable accommodations for a victim of domestic violence, sexual assault, or stalking, who requests accommodation for their safety while at work.  Labor Code section 230.1 provides added protections and requirements on employers that have 25 or more employees.  Finally, Labor Code section 246.5 requires employers to allow employees, upon the employee’s request, to use their accrued paid sick leave if they are a victim of domestic violence, sexual assault, or stalking and need time off.  The new law maintains the same protections, but also provides expanded protections to employees in several ways.  The main takeaways:

• Key Term: Qualifying Act of Violence replaces the existing phrasing, defined as domestic violence, sexual assault, stalking, or any act, conduct, or pattern of conduct that includes (i) bodily injury or death to another; (ii) brandishing, exhibiting, or drawing a firearm or other dangerous weapon; or (iii) a perceived or actual threat to use force against another to cause physical injury or death.
• Rules Moved from the Labor Code to FEHA, which now creates exposure for additional remedies.
• Discrimination and Retaliation Prohibited: Employers of any size are prohibited from retaliating against or otherwise discriminating against employees who participate in the legal process.
• Some Protections Extended to Any Employee Who Has a Family Member Who Is a Victim: “Family member” means “a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner (as those terms are defined under the CFRA); or a designated person, who does not need to be a blood relative, so long as their association with the employee is the equivalent of a family relationship. An employee may identify a “designated person” at the time they request leave, but the employer may limit an employee to one designated person per 12-month period.
• Reasonable Accommodations Shall Be Provided for QAV Victims
• Employers with 25 or more shall provide unpaid time-off for leave for reasons specified in the law.

5. PAGA Legislative Reform: The CA Legislature and Governor Newsom signed legislation to provide new protections for employers, plus incentives for proactive compliance with labor laws. The key changes create standing requirements to ensure employees that bring PAGA actions have personally experienced the same violation as other employees, penalty caps for employers who take “all reasonable steps to comply”, and an expanded right to cure, depending on the alleged Labor Code violations and the employer’s size.
6. FEHA Protected Categories: FEHA was amended to prohibit Intersectional discrimination, which refers to cases where someone experiences discrimination based on a combination of protected characteristics, such as race, gender and age, rather than just one protected characteristic alone.
7. AI in the Workplace: A personal or professional services agreement (or employment agreement) containing a provision allowing for the use of a “digital replica” of an individual’s voice or likeness is unenforceable if (1) it does not include a reasonably specific description of the intended uses of the replica and (2) the individual is not represented by legal counsel or by a labor union.
8. Paid Family Leave and Accrued PTO: Employers can no longer require employees to use accrued PTO (sick leave, vacation leave, or other comparable paid leave benefits) before receiving Paid Family Leave benefits under the EDDs PFL program.
9. New Employment Poster Coming: A new law requires the California Labor Commissioner to create a “model notice” listing employees’ rights and responsibilities under California Labor Code section 1102.5 and other whistleblower laws. The poster can be found on the Labor Commissioner’s website.
10. New Indoor Heat Regulations: Cal-OSHA developed indoor heat regulations, which went into effect in 2024. These regulations apply to indoor work areas > 82ºF when workers are present, with certain exceptions.
11. Workplace Violence Prevention Plan. All employers are required to develop and implement a Workplace Violence Prevention Plan that meets specific requirements outlined in the law. Cal-OSHA has developed a Model Plan that employers can modify for their particular workplace.

If you wish to discuss any of these matters, please contact me at your convenience.  ]]> by The Law Office of Brian Crone https://www.cronelawoffice.com/?p=46852 2024-11-05T18:40:15Z 2024-11-05T18:40:15Z

California has provided employee leave and accommodation protections for victims of certain crimes so that they may seek assistance.  Labor Code section 230 prohibits employers from discharging or discriminating against an employee because of the employee’s status as a victim of “crime of abuse” or for taking time off for certain purposes (such as to appear in court as a witness).   Section 230 also requires employers to provide reasonable accommodations for a victim of domestic violence, sexual assault, or stalking, who requests accommodation for their safety while at work.  Labor Code section 230.1 provides added protections and requirements on employers that have 25 or more employees.  Finally, Labor Code section 246.5 requires employers to allow employees, upon the employee’s request, to use their accrued paid sick leave if they are a victim of domestic violence, sexual assault, or stalking and need time off.  The new law maintains the same protections, but also provides expanded protections to employees in several ways.  The following are the key takeaways from the changes:

1. Key Term – Qualifying Act of Violence

The new law replaces “crime of abuse” or victims of “domestic violence, sexual assault, or stalking” with the phrase “qualifying acts of violence” (QAVI), which is defined as:

• domestic violence
• sexual assault
• stalking; or
• any act, conduct, or pattern of conduct that includes (i) bodily injury or death to another; (ii) brandishing, exhibiting, or drawing a firearm or other dangerous weapon; or (iii) a perceived or actual threat to use force against another to cause physical injury or death.

2. Rules Moved from Labor Code to FEHA

The new statute moves these laws from the Labor Code to the Fair Employment and Housing Act.  As a result, the California Civil Rights Department will now enforce the laws (instead of the Division of Labor Standards Enforcement).  The rules for other types of accommodations (under FEHA) will now apply to accommodations required for qualifying acts of violence.

3. Discrimination and Retaliation Prohibited

Employers of any size are prohibited from retaliating against or otherwise discriminating against employees who participate in the legal process.  Employers cannot discharge or otherwise discriminate against employees for any of the following:

• Taking time off to serve as required by law on an inquest jury or trial jury, so long as the employee gives reasonable advance notice to the employer;
• Taking time off to appear in court to comply with a subpoena as a witness in any judicial proceeding;
• Taking time off to obtain restraining order or other injunctive relief, to help ensure the health, safety, or welfare of the employee or their child where the employee is a victim of a QAV.

4. Some Protections Extended to Any Employee Who Has a Family Member Who Is a Victim

Under AB 2499, many protections under FEHA and paid sick leave apply not only to any employee who is a victim of a QAV but also to any employee who has a family member who is a victim of a QAV. “Family member” is defined to include:

• a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner (as those terms are defined under the CFRA); or
• a designated person, who does not need to be a blood relative, so long as their association with the employee is the equivalent of a family relationship. An employee may identify a “designated person” at the time they request leave, but the employer may limit an employee to one designated person per 12-month period.

As a result, if you have 25 or more employees, you will need to comply with certain antidiscrimination, antiretaliation, reasonable accommodation, and paid sick leave requirements with respect to any employee who is – or has a family member who is – a victim of a QAV.

5. Protected Time Off Required for Additional Purposes

If you have 25 or more employees, you will be prohibited from discharging or discriminating against an employee who is (or who has a family member who is) a victim of a QAV for taking time off from work for any of the following purposes related to that QAV:

• obtaining or attempting to obtain relief, such as a restraining order or other injunctive relief;
• seeking or obtaining medical attention for or to recover from injuries;
• seeking or obtaining services from a domestic violence shelter or similar victim services organization;
• seeking or obtaining psychological counseling or other mental health services;
• participating in safety planning;
• relocating or engaging in the process of securing a new residence, including temporary or permanent housing or enrolling children in a new school;
• providing care to a family member who is recovering from injuries;
• seeking or obtaining civil or criminal legal services;
• preparing for, participating in, or attending any civil, administrative, or criminal legal proceeding; or
• seeking, obtaining, or providing childcare or care to a care-dependent adult if necessary to ensure the safety of the child or dependent adult.

While some of these purposes are included under existing law, many were added by AB 2499.

6. Employer May Limit Total Leave Time Taken

AB 2499 permits employers to limit the total leave time taken. The amount of protected leave an employee is entitled to depends on whether the victim is the employee or the employee’s family member. If the victim of the QAV is:

• the employee, you may limit the total leave time taken to 12 weeks.
• not the employee (but the employee’s family member), you generally may limit leave time taken to assist in relocation purposes to 5 days and the total leave taken to 10 days – except that you may not limit the total leave time taken to fewer than 12 weeks if the victim is deceased as result of the QAV.

This leave runs concurrently with any leave under the CFRA and the federal Family Medical Leave Act (FMLA) and does not provide an employee with a right to leave that exceeds that provided under the FMLA.

7. Employers Still May Require Certification from Employees Seeking Leave or Accommodation

AB 2499 leaves most of the existing reasonable accommodation requirements unchanged. While the new law will require you to provide reasonable accommodations to any employee who is (or who has a family member who is) a victim of a QAV, these rules will otherwise remain largely the same. For example, under AB 2499:

• a reasonable accommodation could include the implementation of safety measures, such as a transfer, reassignment, modified schedule, changed work telephone, permission to carry telephone at work, changed work station, installed lock, assistance in documenting a QAV that occurs in the workplace, or a referral to a victim assistance organization;
• you must engage in the interactive process to identify a reasonable accommodation;
• you are not required to provide an accommodation that would constitute an undue hardship;
• you are not required to provide a reasonable accommodation to an employee who has not disclosed their or their family member’s status as a victim of a QAV (this differs from disability accommodation rules, where an employer may be required to engage in the interactive process for a perceived disability); and
• you may require an employee seeking leave or accommodation under these protections to provide certification of the employee’s or their family member’s status as a victim of a QAV (such certification could include a police report, a court order, documentation from a licensed medical professional, domestic violence counsel, victim advocate, or similar, as well as any other form of documentation reasonably verifying that the QAV occurred, including a written statement signed by the employee).

8. There Is a New Notice Requirement

The CRD will be publishing a form notice regarding employees’ protections under AB 2499 no later than July 1, 2025. Once the CRD publishes that notice, you must provide employees notice of their rights under this law. While you are not required to use the form notice published by the CRD, you must at least provide a notice that is substantially similar in content and clarity.]]> by The Law Office of Brian Crone https://www.cronelawoffice.com/?p=46850 2024-11-05T18:30:21Z 2024-11-05T18:25:14Z

California Employers Face New “Driver’s License Discrimination” Claim When Hiring A new California law will prohibit California employers from telling job applicants that a driver’s license will be required for a job unless you reasonably expect driving to be one of the job functions AND no alternative forms of transportation would work.  SB 1100 amends the Fair Employment Housing Act to make it an unlawful employment practice to require a driver’s license unless the employer can meet to the two identified factors. The Two-Part Test:  Starting January 1, 2025, employer’s must meet the following two-part test before you can include a statement in a job advertisement, posting, application or other material stating an applicant must have a driver’s license:

• You must reasonably expect driving to be one of the job functions for the position

and

• You must reasonably believe that satisfying the job function using an alternative form of transportation, such as ride hailing, taxi, carpooling, bicycling, or walking) would not be comparable in travel time or cost for the business.

]]> by The Law Office of Brian Crone https://www.cronelawoffice.com/?p=46849 2024-11-05T18:14:31Z 2024-11-05T18:14:31Z

Governor Newsom signed the California Worker Freedom from Employer Intimidation Act, which prohibits employers from taking adverse employment action against employees that choose not to attend employer sponsored meetings on specified topics.  The law focuses on so-called "Captive Audience Meetings." A Captive Audience Meeting is defined as "Employer sponsored meetings that discuss religious or political matters, including union-representation discussions."  Employers are prohibited from engaging in or threatening to discharge, discriminate, retaliate against, or take “any other adverse action” against any employee who declines to attend an “employer sponsored meeting” or declines to “participate in, receive, or listen” to any employer communications regarding “religious or political matters.” “Political matters” are broadly defined to include anything regarding “elections for political office, political parties, legislation, regulation, and the decision to join or support any political party or political or labor organization.” Employees have a new private right of action against their employer for violations of the law. California joins eight other states (Oregon, Connecticut, Maine,  Minnesota, New York, Washington, Illinois and Vermont) to ban these captive audience meetings. The law is, unfortunately, vague regarding what constitutes an “employer-sponsored” meeting and legal challenges are expected to the law.  However, employers should carefully require attendance at meetings that may involve any religious or political matters, communicate the purpose of any such meetings and emphasize attendance is voluntary, and train your supervisors to understand the parameters of the law (vague as they may be).]]> by briancrone https://www.cronelawoffice.com/?p=46838 2023-11-29T00:55:39Z 2023-11-28T22:27:44Z

by briancrone https://www.cronelawoffice.com/?p=46837 2023-11-28T22:20:38Z 2023-11-28T22:20:38Z

From engaging in any adverse action against virtually all employees for off-duty marijuana use.

From engaging in any adverse action against virtually any employee due to results from a drug screening test that finds the person to have nonpsychoactive cannabis metabolites in their system which do not demonstrate on-duty use or impairment.

Essentially prohibits pre-employment screening for marijuana.

Note: There is no test for impairment, but the oral fluid test is the best screening method for reasonable suspicion/post accident testing.]]> by briancrone https://www.cronelawoffice.com/?p=46836 2023-11-16T18:08:07Z 2023-11-16T18:08:07Z

By July 1, 2024, California is now requiring that employers take even further steps to protect employees in the workplace.  In addition to an IIPP, California employers are now required to develop, maintain and train all employees on a new Workplace Violence Prevention Plan.  The program requires each employer to create and implement a written Workplace Violence Prevention Plan, train employees and supervisors on workplace violence matters, create and maintain a violent incident log, and keep records of all training and violent workplace incidents that occur. The Workplace Violence Prevention Plan must be in writing and be easily accessible to employees. It must identify who is responsible for implementing the plan and include all of the following:

• A system for identifying and evaluating workplace hazards;
• Methods and procedures to correct unsafe or unhealthy conditions and work practices in a timely fashion;
• An occupational health and safety training program to teach safe and healthy work practices and provide instruction specific to an employee’s particular hazards;
• A system for ensuring that employees comply with safe and healthy work practices, which may include disciplinary consequences;
• Procedures that allow for employee participation in developing and implementing the plan as well as to identify, evaluate, and correct workplace violence hazards;
• Procedures for accepting and responding to reports of workplace violence, including a prohibition on retaliating against the employee making the report;
• Procedures to communicate workplace violence matters with employees, including how to report an incident without fear of retaliation;
• Procedures to investigate employee concerns;
• Procedures for responding to an actual or potential workplace violence emergency, including the means to alert employees of the emergency and obtain help from staff designated to respond, and evacuation and shelter plans; and
• Procedures for post-incident response and investigation.

The plan must also comply with the state’s Injury and Illness Prevention Program (IIPP). Among other requirements consistent with those mentioned above, employers should take the following actions:

• Create a system for communicating occupational safety and health matters, such as meetings, training, posting, written communications, committees, or other means of communication;
• Conduct periodic inspections when new substances, processes, equipment, or procedures come into the workplace, and when the employer becomes aware of a new or previously unrecognized hazard; and
• Provide employees the opportunity to examine and receive a copy of any workplace injury and illness reports no later than five business days after the request for access is received.

Employers are required to provide training when the plan is initially implemented and then annually thereafter. The training must review the following:

• The plan and how employees can obtain copies and participate;
• Definitions and requirements of this law;
• How to report workplace violence incidents or concerns without fear of retaliation;
• Workplace hazards specific to a particular employee’s duties;
• Corrective measures that you have implemented;
• How to seek assistance to prevent or respond to violence and avoid physical harm; and
• The violent incident log, and how to get copies of workplace violence incidents.

The training must also provide an opportunity for interactive Q&A with someone knowledgeable about the plan. As with the IIPP, training is required for all new employees, employees who are given new job assignments, and all employees when a new hazard is presented by newly introduced substances, procedures, processes, or equipment. Each violent incident that occurs must be recorded in a violent incident log. The information from each log must come from an employee who witnessed the incident, other witness statements, or investigative findings. No personal identifying information may be included in the log, such as a name, address, email, phone number, Social Security Number, or any other information that could identify the person providing information for the log entry. Additionally, information in the log must include the following:

• Date, time, and location of the incident;
• Workplace violence type (see types below);
• Detailed description of the event;
• Classification of the offender, such as client, customer, family, friend, stranger, co-worker, supervisor, or other titles like these;
• Classification of the circumstances, such as the employee finishing up job duties or working in a poorly lit area;
• Classification of the incident’s location, such as the workplace, parking lot, or some other area;
• Type of violence, such as physical force or threat of physical force, use of a weapon, animal attack, or sexual assault or threat of sexual assault;
• Consequences of the incident, such as the use of law enforcement, any actions taken to protect the employees; and
• Name and job title of the person who made the log entry, as well as the date completed.

There are four distinct workplace violence types classified under SB 553:

• Type 1 is workplace violence committed by someone with no legitimate business interests at the worksite;
• Type 2 is violence directed at employees by customers, clients, patients, students, inmates, or visitors;
• Type 3 is violence between two current employees or one current and one former employee; and
• Type 4 is violence committed by a non-employee who has a personal relationship with an employee.

Notably, “workplace violence” does not include lawful acts of self-defense or defense of others, according to the bill. SB 553 requires employers to keep records of each workplace violence hazard as well as the identification, evaluation, and correction of each workplace hazard for a minimum of five years. Training records must be saved for a minimum of one year. Violent incident logs and records of workplace violence investigations must be retained for a minimum of one years. Next Steps: All California employers should begin developing the Workplace Violence Prevention Plan to ensure it is documented, implemented, and communicated to your employees byJuly 1, 2024.]]> by briancrone https://www.cronelawoffice.com/?p=46834 2023-11-13T21:08:02Z 2023-11-13T21:05:00Z

Employees Entitled to Time-Off For Reproductive Loss Events SB 848 will amend the California Government Code to require all private employers with five or more employees to provide job protected time off to California employees for a “reproductive loss event.” The term “employee” is defined to mean any person employed by the employer for at least 30 days.  The term “reproductive loss event” is defined to mean a failed adoption, failed surrogacy, miscarriage, stillbirth, or unsuccessful assisted reproduction.  Similar to bereavement leave, which is set forth in California Government Code section 12945.7, an eligible employee is entitled to receive up to five days of job protected time off following a "reproductive loss event," as defined therein. Notably, the five days of leave do not need to be taken consecutively; however, the leave must be completed within three months of the reproductive loss event.  If an employee experiences more than one reproductive loss event within a 12-month period, an employer shall not be obligated to grant a total amount of reproductive loss leave time in excess of 20 days within a 12-month period. Time-Off is Likely Unpaid Except Existing Paid Leave Benefits Can Be Used Whether the reproductive loss leave is paid or unpaid depends on an employer’s existing leave policy. If an employer does not have an existing leave policy, then all five days may be unpaid. However, while on leave, an employee is entitled to use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available to the employee. No Documentation Required The new law does not require an employee to provide any documentation supporting their request for reproductive loss leave. This means that the eligible employee is entitled to request and take reproductive loss leave without needing to provide evidence that such leave is necessary Retaliation for Using Reproductive Loss Is Prohibited The law creates California Government Code 12945.6 within the California's Fair Employment Housing Laws.  The new law protects employees requesting and taking such leave against retaliation for their decision. Next Steps Employers should update their employment leave policies to include job protected leave for reproductive loss leave.]]>