LOS ANGELES, Dec. 14, 2017 /PRNewswire/ -- Recently proposed regulations designed to shield protected classes of employees against workplace discrimination in California could ensnare a wide swath of unsuspecting businesses, including small enterprises that are owned and operated by some of the groups that the proposed regulations are trying to protect, warns veteran labor and employment attorney Brian Inamine in an expert analysis column that appeared in legal publication Law360 on December 11.
The proposed regulations are likely to be implemented by the state's Department of Fair Employment and Housing (DFEH), an agency charged with enforcing California's civil rights laws. They appear to apply to any company with five or more employees that's headquartered or doing business in California, so a New York City business that's hiring for a California-based position, for example, would apparently be subject to the rules, he writes in the column, Proposed Calif. Anti-Discrimination Regs Cast A Wide Net.
The column notes that one of the most important characteristics of the new anti-discrimination regulations is the expansion of the term "national origin." Employees and job applicants who believe they have been unfairly treated in hiring or promotion, or experienced on-the-job harassment and other forms of discrimination due to their national origin will now be protected by anti-discrimination rules whether they were born in the U.S. or in another country.
Discrimination due to national origin will also encompass such perceived national-origin traits as language and accent, as well as memberships and associations with people or organizations that are based on national origin, he notes. Besides broadening the definition of national origin discrimination, the proposed DFEH regulations will apply to unauthorized as well as authorized workers, Inamine writes. These expanded definitions and broader applications mean that the pool of potential victims—and future plaintiffs—will be vastly larger.
The proposed regulations aim to provide protection for minority, foreign-born and foreign-heritage workers, but they may have unintended consequences, Inamine says. For example, the owners or founders of many ethnic restaurants and other small businesses in Los Angeles, San Francisco and other California cities are often part of a closely knit culture and tend to hire from the local community. If the new regulations are adopted, what happens when a Caucasian who only speaks English is turned down for a job in a Koreatown restaurant where all the employees speak Korean as a primary language?
His advice: Be proactive and ensure that HR and other managers, especially those involved in the interview and hiring processes, are aware of the proposed regulations. And although they do not address the issue of a company's responsibility for the actions of an outside recruiting agency or other third party that violates the statutes, to be on the safe side companies may wish to raise the issue of compliance before retaining an employment agency.
The specifics of the regulations are still being hammered out, but the final version will likely be similar to — or even more stringent than —the version that has been released. In the meantime, employers may wish to consult their legal advisers and review their existing policies to see how closely they comply with the proposed regulations. Once the final rules are issued, the policies and documentation should be re-examined and amended if necessary, writes Inamine.
California typically leads when it comes to anti-discrimination and personal freedom legislation, so the latest proposals are likely to be mirrored, at least to some extent, by other states, he adds. Consequently, companies across the nation may want to monitor California's experience with the new National Origin Discrimination regulations, since similar legislation or regulations are likely to pop up in their own backyard.
The full column is available to Law360 subscribers at: https://www.law360.com/employment/articles/989543/proposed-calif-anti-discrimination-regs-cast-a-wide-net-.
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NOTE TO MEDIA: Veteran labor and employment attorney Brian Inamine is available as resource for your articles on employment discrimination and other labor and employment law topics.