Agency Proceeds with Regulatory Amendments, Despite Employer Concerns

Despite concerns raised by a California Chamber of Commerce-led coalition that proposed regulations regarding harassment and discrimination prevention and training will cause legal inconsistencies, the Fair Employment and Housing Council (FEHC) is moving forward.

According to the FEHC, the goal of the draft regulation is to clarify the individuals to whom fair employment and housing laws apply and spell out requirements for a law passed in 2017 regarding a transgender rights poster and harassment prevention training on gender identity, gender expression, and sexual orientation.

However, the coalition believes the proposed regulations go further than the intended stated purpose of the law and create additional confusion for employers.

Coalition Concerns

The proposed changes to the regulations “drastically deviate” from current state and federal definitions about the number of weeks an individual needs to be employed for the regulations to apply.

The coalition is asking that the “twenty consecutive calendar weeks in the current calendar year…” not be changed because the definition of “regular” basis” is not a known or established evidentiary standard and applying that timing will create confusion. If the duration of employment is going to be changed, the coalition suggests using a payroll method. For this purpose, the number of weeks is calculated based on how many weeks the individual is on the company payroll. Additionally, the coalition suggests that, if any changes are going to be made to the 20-week period, a reasonable and predetermined number of weeks be used rather than the term “regular basis” because employers need certainty.

In its November 7 letter, the coalition also writes that the proposed regulations are premature, given the number of bills signed by the Governor regarding harassment prevention and training at the end of the 2018 legislative session. Additional and potentially substantial changes may  need to be made with the passage of the recent legislation, the coalition notes. Thus, the FEHC should wait and make all changes at once, rather than imposing new mandates on employers that may change as quickly as they are adopted.

The coalition also asked the council to delete “interns and unpaid volunteers, and persons providing services pursuant to a contract” from the definition of an “employee” the proposed regulations will cover. Instead, the coalition has asked the FEHC to define each term separately, or create a new term such as “other covered individuals” and define “other covered individuals” as “interns and unpaid volunteers, and persons providing services pursuant to a contract.” This would provide clarity so there is no presumption of an employer-employee relationship. In addition, this approach maintains brevity, a concern of the FEHC, because “employee or other covered individuals” can be added easily throughout the section of the regulation.

Next Steps

The council may adopt the draft regulations as proposed, or if it makes changes to the proposed text, it must make the modifications available for additional public comment.

For more information on the proposed regulations, visit the FEHC’s website.

Staff Contact: Laura Curtis

Laura E. Curtis served as a CalChamber policy advocate from December 2017 to March 4, 2020. She specialized in labor and employment, workers’ compensation, and regulatory reform issues. Before joining the CalChamber policy team, she was a labor and employment attorney counseling clients on subjects including wage-and-hour disputes, harassment, discrimination, retaliation, Private Attorneys General Act (PAGA) claims, and administrative agency compliance. Curtis holds a B.A. in communications with a minor in political science from the University of California, San Diego. She earned a J.D. from Santa Clara University School of Law, where she worked on the International Law Journal.