FEHA - New National Origin Regulations

National Origin is considered a protected class by the California Department of Fair Employment and Housing (FEHA), but beginning July 1, 2018, FEHA has expanded the rules relating to national origin discrimination and addresses specific actions that may constitute national origin discrimination. 

Definition of National Origin

National origin previously was interpreted to mean the country from which the applicant, employee or their ancestors came. National origin is now broadly defined. It includes, but is not limited to, an individual’s or the individual’s ancestors’ actual or perceived: 

• Physical, cultural or linguistic characteristics associated with a national origin group; 
• Marriage to or association with persons of a national origin group; 
• Tribal affiliation; 
• Membership in or association with an organization identified with or seeking to promote the interests of a national origin group; 
• Attendance or participation in schools, churches, temples, mosques or other religious institutions generally used by persons of a national origin group; and 
• Name that is associated with a national origin group. 

Employers with English Only Policies Take Note 

The new regulations expand the existing prohibition on English-only policies in the workplace. Language restriction policies (including English-only policies) are unlawful unless an employer can prove that: 

• The language restriction is justified by business necessity; 
• The language restriction is narrowly tailored; and 
• The employer has effectively notified employees of the circumstances and time when the language restriction is required to be observed and of the consequence for violating the restriction. 

Employers can no longer impose a language restriction that is purely based on customer or co-worker preference. Employers can also never require that employees speak English during no-work time such as rest and meal breaks or unpaid employer-sponsored events. 

Other Considerations 

FEHA Regulations also prohibit: 

• Employment decisions based on an individual’s accent unless the employer proves that the accent interferes with the individual’s ability to perform their job; 
• Requirement of English proficiency unless the employer proves the business necessity of English proficiency; 
• Requirement that the employee can speak, read, write or understand any language, including languages other than English unless if doing so is justified by business necessity; 
• Height and weight requirements that exclude individuals of a certain national origin from being considered for a position unless the employer can show that the requirement is job related and justified by business necessity; 
• Seeking, requesting or referring applicants or employees based on national origin; 
• Assigning positions, facilities or geographical areas of employment based on national origin, unless done to business necessity or any other permissible defense; and 
• Asking about an applicant’s or employee’s immigration status, or to discriminate against an applicant or employee based on immigration status, unless the employer can show by clear and convincing evidence that it was doing so to comply with federal immigration law. 

What is “Business Necessity” under FEHA? 

“Business necessity” means an overriding legitimate business purpose, such that: 

• The restriction is necessary to the safe and efficient operation of the business; 
• The restriction effectively fulfills the business purpose it is supposed to serve; and 
• There is no alternative practice to the restriction that would accomplish the business purpose equally well with a lesser discriminatory impact. 

These new regulations protect both applicants and employees from unlawful discrimination and harassment based on national origin and also to applicants and employees who are undocumented. 

Harassment can take the form of epithets, derogatory comments, and slurs or non-verbal conduct based on national origin, including threats of deportation, derogatory comments about immigration status, or mocking an individual’s accent or language. It also is an unlawful for employers to retaliate against employees who have opposed discrimination or harassment based on national origin; participated in filing a complaint; or testified, assisted or participated in a proceeding alleging national origin discrimination. 

Best Practices for Compliance with the FEHA New Regulations

• Educate HR and managers about the new broad definition of “national origin”; 
• Identify any policies that may be affected by the new regulations, such as English-only policies and height and weight requirements. Ensure the policies demonstrate business necessity; 
• Broaden recruitment efforts to ensure that potential applicants are not being excluded based on national origin; 
• Ensure that employment decisions, including transfers, salary changes, promotions, hiring, and firing are based on objective criteria that are consistently applied; and 
• Don’t use customer preference as a justification for discrimination based on national origin.

Lauren Sims is the article’s author and the Director of Human Resources.

Whenever you require professional Human Resources or Payroll guidance to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, contact us for a no-obligation consultation.

eqHR Solutions provides professional, tactical and strategic human resources support; ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.

How to Effectively Use a Performance Improvement Plan

Performance Improvement Plan 

Often when discussing employee performance issues with clients, I ask them if they want to go the progressive discipline route with this employee or do they want to do a performance improvement plan (PIP). Usually when I ask this question I get a confused, look: “what’s the difference between a verbal or written warning and a PIP?”

A PIP is more of a commitment from the manager to help their employee improve, not just a way to begin documenting the termination process.

Performance improvement plans (PIP) are best used in situations where: 

• There an actual performance or behavioral issue that can be documented with a list of performance issues, including dates, specific data or detailed explanations, and any previous counseling given to the employee. 
• The manager is committed to helping the employee improve rather than beginning the process of termination. 
• The performance issue can be improved through a formal plan. Quantifiable problems such as sales goals, quality ratings and quantity objectives are better suited to a PIP than issues suchs as insubordination. 

The employee has not received proper training to succeed and additional training goals can be set to help correct the oversight.

Effective elements of a PIP should include:

• How the employee’s current performance is unacceptable; 
• What acceptable performance levels are; 
• SMART (Specific, Measurable, Achievable, Relevant, and Time-bound) objectives. Typical timeframes for PIPS are 30, 60, or 90 days; 
• Commitments from management on how they will assist employees in achieving their goals. This can include additional training and coaching; 
• Details on how often the manager and employee will meet to discuss progress; and 
• Clear consequences for not meeting the objectives of the plan. 

Once a PIP has been created and discussed with the employee it is now up to the manager to monitor the plan’s progression. The manager should ensure all progress meetings are scheduled and occur on time. Progress toward goals should be documented and discussed, seeking to identify why improvements have or have not been made.

If an employee responds positively an meets all plan objectives, possibly before the expiration date of the plan, the employer should formally close the PIP, recognize the employee's success and allow the employee to continue employment.

If an employee is unable to improve or if his or her performance worsens, the PIP should be closed, and a possible reassignment, demotion or termination should be considered, based on the specific circumstances.

Properly planned and executed PIPs can be an effective way to retain an employee who may have potential but falls short in certain areas and can be an important piece of an employee discipline program.

Lauren Sims is the article’s author and the Director of Human Resources.

Whenever you require professional Human Resources or Payroll guidance to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, contact us for a no-obligation consultation.

eqHR Solutions provides professional, tactical and strategic human resources support; ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.

Physical Requirements and Job Descriptions

Physical Requirements and Job Descriptions

(LANGUAGE FOR ADA COMPLIANT JOB DESCRIPTIONS)

Many employers have written job descriptions for positions at their companies. However, most companies don’t realize that including the physical requirements and working conditions of a position is as important as the duties and qualifications. If there are environmental, psychological, and or physiological requirements that applicants or employees must meet, these should be included in the job description.

Documenting the physical requirements and working conditions is useful in determining accommodations under the Americans with Disabilities Act (ADA). It is also helpful in defending a claim of disability discrimination.  When a charge of discrimination is brought under the ADA, and initial issue will be whether the disabled individual could perform not only the essential functions of the position with or without reasonable accommodation but could also perform the physical requirements. 

When listing physical requirements, a task should state that specific physical exertion, such as lifting, standing, bending, or reaching, is required. Remember to consider whether a process is truly an essential part of a task.

When writing job descriptions, it is very important to use the correct language.  Certain words can exclude individuals with disabilities.  It is better to select words that convey the actual requirements of the job without limiting the physical demands to certain abilities.  The following table contains examples of words that tend to be exclusionary and substitutes for these words. 

If a physical demand is not essential in the performance of the job, then reference to that demand should be omitted.

Amount of Time	Wording
None	Omit from Job Description
Under 1/3	Seldom to Occasionally
1/3 to 2/3	Occasionally to Frequently
Over 2/3	Constantly

Physical Demand	ADA Compliant Words	Job Description Language Example
Stand or Sit	Stationary position	Must be able to remain in a stationary position 50% of the time.
Walk	Move, Traverse	The person in this position needs to occasionally move about inside the office to access file cabinets, office machinery, etc.
Use hands/fingers to handle or feel	Operate, Activate, Use, Prepare, Inspect, Place, Detect, Position	Constantly operates a computer and other office productivity machinery such as a calculator, copy machine and computer printer.
Climb (stairs/ladders) or balance	Ascend/Descend, Work atop, Traverse	Occasionally ascends/descends a ladder to service the lights and ceiling fans
Stoop, kneel, crouch or crawl	Position self (to), Move	Constantly positions self to maintain computers in the lab, including under the desks and in the server closet
Talk/hear	Communicate, Detect, Converse with, Discern, Convey, Expresse oneself, Exchange information	The person in this position frequently communicates with students who have inquiries about their tuition bill or financial aid package. Must be able to exchange accurate information in these situations.
See	Detect, Determine, Perceive, Identify, Recognize, Judge, Observe, Inspect, Estimate, Assess	Must be able to detect funnel clouds from long distances.
Taste/Smell	Detect, Distinguish, Determine	Occasionally must be able to distinguish sweet and bitter flavors when creating desserts for Applewood customers.
Carry weight, lift	Move, Transport, Position, Put, Install, Remove	Frequently moves Audio/Visual equipment weighing up to 50 pounds across campus for various classrooms and events needs.
Exposure to work environments	Exposed, work around	Constantly works in outdoor weather conditions.

Source: Office of Human Resources - Mott Community College

Lauren Sims is the article’s author and the Director of Human Resources.

Whenever you require professional Human Resources or Payroll guidance to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, contact us for a no-obligation consultation.

eqHR Solutions provides professional, tactical and strategic human resources support; ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.