Updating personnel rules is an endless task. Laws are constantly changing, and agencies are experiencing significant operational changes now more than ever. The responsibility of ensuring that all personnel rules are up to date and reflect both the legal requirements and the operational requirements is time-consuming and daunting. However, auditing personnel rules is one of the most valuable ways for agencies to avoid liability. You may be asking yourself: “where do I even start?” There is no simple answer – most policies are important and valuable – but a good starting point is to make sure your agency’s personnel rules and policies at least include those required by law.
Your focus should be on adopting and clearly establishing legally-mandated policies and standards. It is critical to make sure these policies remain up to date on a yearly basis in order to remain compliant with new laws and regulations from California legislators, California and federal courts, and rule-making administrative bodies. Below is a list of the most important policies that must be included in your agency’s personnel rules to ensure legal compliance.
Every agency should have an equal opportunity policy that makes a strong and clear statement against all forms of illegal discrimination. This policy should cover both applicants and existing employees and list the protected classifications established by California law. Protected classifications include race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age (40 and over), sexual orientation, or military and veteran status or any other basis protected by law.[1]
In addition to the general equal employment opportunity policy, agencies should have a policy that clearly defines protected classes, what constitutes harassment, discrimination, and retaliation and how the agency addresses claims of harassment, discrimination, and retaliation. Specifically, state law requires that harassment prevention policies set forth: (1) the illegality of sexual harassment; (2) the definition of sexual harassment; (3) a description of sexual harassment; (4) the internal complaint procedure; (5) legal remedies available through the Department of Fair Housing and Employment (“DFEH”) and how to contact DFEH; and (6) the legal protections from retaliation provided under California law.[2] Each of the enumerated items above must be clearly outlined in the agency’s personnel rules.
Public agencies have an affirmative duty to provide applicants and employees who are disabled with reasonable accommodations. Employers must engage in a timely, good faith, interactive process in order to determine what accommodation(s) must be made for the employee to perform his or her essential job functions. Further, an employer must determine if an accommodation can be made without causing an undue burden to the employer or presenting a direct threat to the health and safety of others.
Your agency’s reasonable accommodation policy should outline the procedure for requesting and receiving an accommodation. Specifically, it should cover: (1) how to make a request; (2) what documentation may be requested; (3) fitness for duty exams; (4) the interactive process; and (5) that determinations will be made on a case-by-case basis. This section should also include a process of resolving requests for religious accommodations.
Numerous leave policies should be included in agencies’ personnel rules. Leaves include both legally required and operationally required leaves. The leaves section should include: (1) vacation time accrual if provided, and the procedures for taking the time off; (2) the agency’s designated holidays; and (3) any other leave time the agency grants employees. The below are leave policies required by law.
a. Federal Family Medical Leave Act (“FMLA”) and California Family Rights Act (“CFRA”)
The FMLA and CFRA both provide rights to employees to take leave to care for family members. Your policy must include the definitions as provided in each Act and note the differences where they exist. Employers are required to inform employees of when they are qualified to take this type of leave and how much leave may be taken. This policy will need to be highly detailed to inform employees of their rights under both FMLA and CFRA.
b. Pregnancy Disability Leave (“PDL”)
Employers are obligated to provide leave for pregnant employees. PDL is separate and distinct from the need to take a leave of absence as part of a reasonable accommodation and has different qualifications than leave under FMLA and CFRA. At a minimum, employers are required to provide four (4) months of leave for pregnant employees. This policy should cover the amount of leave permitted, whether employees will be paid during the leaves, notification requirements, and the process for reinstatement after the conclusion of the leave.
c. Sick Leave
Sick leave is required under two California laws: the Healthy Workplace Healthy Family Act of 2014 and the Kin Care Law. While these laws are separate and distinct, they overlap in important ways. Your agency’s sick leave policy should cover both of these required sick leave laws.
California’s Healthy Workplace Healthy Family Act of 2014 requires employers to provide paid sick leave. It entitles an employee who has worked at least thirty (30) days in twelve (12) months with an employer in California to accrue sick leave. Employees are permitted to use sick leave to attend to their own illness and the illness of other family members.
California’s 2001 Kin Care law requires those employers who already provide paid sick leave to expand the permissible use of that sick leave, so that employees can use up to half of accrued and available annual sick leave entitlement to attend to the illness of the following family members: child, parent, spouse, or registered domestic partner. Kin Care leave can also be used to attend to issues related to domestic violence. Sick leave policies must accurately cover requirements under both laws and reflect any additional sick leave benefits employers may provide.
It is critical to provide a policy that (i) defines overtime in a manner consistent with the Fair Labor Standards Act (“FLSA”) and (ii) requires non-exempt employees to obtain pre-approval from their supervisor prior to working overtime. This policy will lay out the obligations of employees when it comes to overtime work. Agencies should also clearly define what work is compensable for overtime calculations. The FLSA only requires that actual hours worked be counted, but some employers will count additional hours. Employees should be able readily to determine what their obligations are when working overtime and what will be counted towards compensable time.
Conclusion
The above is not an exhaustive list of legally required policies and only provides a brief overview of the critical components of each policy. Nevertheless, it should serve as a starting point and guidepost in considering whether your agency’s personnel rules are missing any critical policies. Most agencies will have these policies, but many policies are outdated or incomplete. Because the aforementioned policies are required by law, it is critical to ensure they are kept up to date on an annual basis. While regular audits of personnel rules may be time-consuming and cumbersome, it is an effective way that an agency can reduce its exposure with respect to employee claims.
Check here to see if your policies reflect the most recent legal updates.
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[1] Gov. Code §12940, subd. (a).
[2] Cal Code Regs., tit. 2, § 11023.