Publication Details

Special Alert: Changes to FEHA and Updated Rounding Recommendations

Nov 7, 2022 | Related Attorneys Katherine M. McCray, Lois M. Kosch | Topic: Employment

FEHA To Protect Against Discrimination/Harassment on the Basis of “Reproductive Health Decisionmaking”

The California legislature recently passed, and the Governor signed, SB 523, the “Contraceptive Equity Act,” which will expand the list of protected characteristics under the Fair Employment and Housing Act (FEHA) to include “reproductive health decisionmaking,” effective January 1, 2023.  “Reproductive health decisionmaking is defined to include, but not be limited to, “a decision to use or access a particular drug, device, product, or medical service for reproductive health.”  The law makes it an unlawful employment practice to discriminate or engage in harassment on the basis of a person’s reproductive health decisionmaking.  The law also prohibits an employer from requiring an applicant or employee to disclose information relating to reproductive health decisionmaking as a condition of employment, continued employment, or a benefit of employment.  In addition, the law makes changes to expand health care coverage of contraceptives and access to over-the-counter FDA-approved contraceptive drugs, devices, and products without a prescription. 

California employers should consider updating their discrimination and harassment policies to cover “reproductive health decisionmaking” and educate human resources staff, recruiters, and supervisors about the prohibition on requiring employees or applicants to disclose information related to reproductive health decisionmaking.

California Court of Appeal Casts Doubt on Validity of Time Rounding Practices

On October 24, 2022, a California Court of Appeal held that if an employer can capture and has captured the exact amount of time an employee works during a shift, the employer must pay the employee for “all the time worked.”  The court held, in Camp v. Home Depot U.S.A., Inc., that an employer cannot round time punches if the rounding results in an individual employee failing to receive compensation for all time worked.  The Camp decision calls into question the validity of a 2012 California Court of Appeal decision known as See’s Candy Shops, Inc. v. Superior Court, which approved neutral rounding policies. See’s Candy held that a rounding policy does not violate the California requirement to pay employees for all hours worked if the policy is neutral on its face (i.e., rounds both up and down) and is used in such a manner that it will not result, over a period of time, in failure to compensate employees properly for all time worked (i.e., when the policy is applied over time to a group of employees, it does not result in a net underpayment of wages). But the Camp court was not persuaded by evidence showing that on net, a large sample of Home Depot employees actually benefited from the rounding policy.  Instead, it concluded that the employer had not met its burden to prove it paid the individual plaintiff for all time worked when it could and did capture the employee’s actual time punches, but then rounded those punches to the nearest quarter-hour, leading to a net underpayment of wages to the individual plaintiff.

The Camp court expressly invited the California Supreme Court to weigh in on the issue.  Last year, the California Supreme Court held that rounding is not permissible for time punches related to meal breaks.  And while the state’s highest court has not yet opined on the validity of other rounding policies, it is entirely possible that the Court may accept the invitation to review rounding more broadly. 

California employers who round time punches even though they have a timekeeping system that can and does capture employees’ actual time worked should consult counsel about whether to cease rounding in light of the risk that they may be held liable for underpayment of wages as a result of such rounding. 

If you have questions about how this new case may affect your business, please contact us.

Wilson Turner Kosmo’s Special Alerts are intended to update our valued clients on significant employment law developments as they occur. This should not be considered legal advice.