Effective January 1, 2015, California Assembly Bill 1443 plugs a gap that had left interns, trainees, and others lawfully involved in unpaid work experience unprotected from unlawful harassment and discrimination.
Since its enactment in 1980, California's Fair Employment and Housing Act (FEHA) has prohibited employers from discriminating against "any person ... in compensation or in terms, conditions, or privileges of employment" because of that person's membership in a so-called "protected classification." FEHA originally protected five such classifications: race, color, national origin, gender, and religious creed. That law now embraces some 15 protected categories, the rest added over the ensuing decades: ancestry, physical disability, mental disability, medical condition, genetic information, marital status, gender identity, gender expression, sexual orientation, age (40 or older), and military and veteran status. Government Code section 12940(c)
Unless a person's inclusion in such a category has a direct bearing on job requirements (for example, a health club would obviously "discriminate" against men for a women's locker room assistant position), FEHA deems an individual's membership in a protected classification irrelevant to the hiring, promotion, pay level, benefits, discipline and termination of that person. The law is intended to level the playing field, confirming that businesses should base such employment decisions on competence and performance.
Varying definitions of "employer"
FEHA also prohibits workplace harassment to any of the above 15 protected categories against such employer behavior. Government Code section 12940(j)(l) This law has varying definitions of "employer" obligated to comply with the above provisions. A company with five or more on its payroll over significant portions of the previous two calendar years is subject to FEHA's discrimination provisions. Government Code section 12926(d) A company with but one employee is responsible for upholding FEHA's harassment prohibitions. Government Code ? 12940(j)(4)(A)
Fallen between the cracks
Until now, unpaid interns and trainees have fallen between the cracks, because such work experience programs were not included in the types of work covered by such FEHA protections. Government Code section 12940(c)
Restrictions on a company employing five or more
Beginning in 2015, a business employing five or more can no longer "discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person" based on his/her membership in a protected class. Government Code section 12940(c) (emphasis reflects amended language). Similarly, a business employing even one person cannot unlawfully harass such unpaid person interning or training with that company based on protected class membership. Government Code ? 12940(j)(1) and (4)(A)
Religious observance protections
The new law separately requires that the religious observances of interns be protected and that they be free of any adverse actions - i.e., actions related to selection, termination, training, or other decisions - based on their religious beliefs. Government Code section 12940(l)(1)
While California businesses may not be legally obligated to pay interns or trainees and while such persons need not be included in all phases of operations, it has always been management's safest course to afford them the same courtesies and protections extended to employees regarding discrimination and harassment. Now the law requires it.
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