The U.S. Equal Employment Opportunity Commission (EEOC) has issued its final rule implementing the Pregnant Workers Fairness Act (PWFA). As discussed here, the PWFA requires most employers with 15 or more employees to provide “reasonable accommodations,” or changes at work, for a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship. 

The PWFA builds upon existing protections against pregnancy discrimination under Title VII of the Civil Rights Act of 1964 (Title VII) and access to reasonable accommodations under the Americans with Disabilities Act (ADA) and state law. As such, employers should review existing accommodation policies to ensure compliance extends to PWFA-related conditions and include the PWFA in training for all Human Resources and supervisory personnel. 

The final rule will be published in the Federal Register on Apr. 19, 2024, and become effective 60 days later on June 18, 2024.  

The final rule and its accompanying interpretative guidance provide clarity to applicants, employees, and employers about who is covered, the types of limitations and medical conditions covered, how individuals can request reasonable accommodations, and numerous concrete examples. According to EEOC Chair Charlotte A. Burrows, “the final rule encourages employers and employees to communicate early and often, allowing them to identify and resolve issues in a timely manner.” 

Highlights from the final regulation include: 

• Numerous examples of reasonable accommodations such as additional breaks to drink water, eat, or use the restroom; a stool to sit on while working; time off for health care appointments; temporary reassignment; temporary suspension of certain job duties; telework; or time off to recover from childbirth or a miscarriage, among others. 
• Guidance regarding limitations and medical conditions for which employees or applicants may seek reasonable accommodation, including miscarriage or still birth; migraines; lactation; and pregnancy-related conditions that are episodic, such as morning sickness. This guidance is based on Congress’s PWFA statutory language, the EEOC’s longstanding definition of “pregnancy, childbirth, and related medical conditions” from Title VII, and court decisions interpreting the term “pregnancy, childbirth, or related medical conditions from Title VII.   
• Guidance encouraging early and frequent communication between employers and workers to raise and resolve requests for reasonable accommodation in a timely manner. 
• Clarification that an employer is not required to seek supporting documentation when an employee asks for a reasonable accommodation and should only do so when it is reasonable under the circumstances. 
• Explanation of when an accommodation would impose an undue hardship on an employer and its business. 
• Information on how employers may assert defenses or exemptions, including those based on religion, as early as possible in charge processing. 

More information about the PWFA and the EEOC’s final rule, including resources for employers and workers, is available on the EEOC’s “What You Should Know about the Pregnant Workers Fairness Act” webpage. 

Upcoming pay data reporting obligations in California have many employers struggling to gather and report employee race and ethnicity data. As a reminder, the filing deadline for employers with 100 or more employees is May 8, 2024.  

One of the biggest stumbling blocks for reporting accurate pay data is the question of how employers are to gather the required information. The California Civil Rights Department (CRD) offers guidance on this issue through its FAQs.  

According to the CRD, employee self-identification is the preferred method of identifying race/ethnicity information. Employers can offer employees the opportunity to self-identify during the onboarding process or during a survey period initiated by the employer ahead of the reporting period. It is important to note that any survey provided to employees must make clear that participation is voluntary.  

A sample voluntary survey statement provided by the CRD (adapted from the EEOC) reads as follows: 

“[Employer name] is subject to certain governmental recordkeeping and reporting requirements for the administration of civil rights laws and regulations. In order to comply with these laws, [employer name] invites employees to voluntarily self-identify their race or ethnicity. Submission of this information is voluntary and refusal to provide it will not subject you to any adverse treatment. The information obtained will be kept confidential and may only be used in accordance with the provisions of applicable laws, executive orders, and regulations, including those that require the information to be summarized and reported to the California government for civil rights enforcement. When reported, data will not identify any specific individual.” 

Self-identifying may be the preferred method of providing the requested data, but what if an employee declines to participate?  

If an employee declines to voluntarily provide their race/ethnicity, employers must still report the employee according to one of the seven race/ethnicity categories (see below), using (in the following order):  

• current employment records;  
• other reliable records or information; or  
• observer perception.  

Recognizing the risk of inaccurate race/ethnicity identification based on ‘observer perception’ alone, the CRD advises that this method only be used after making a good faith effort to obtain race/ethnicity information from the employee voluntarily or from other reliable records.  

If using the observer perception method, the CRD encourages employers to utilize the clarifying remarks field to indicate they have done so, stating for example: “The race/ethnicity of [number] employees in this employee grouping is being reported based on observer perception.” 

The seven race/ethnicity reporting categories are as follows: 

1. Hispanic/Latino 
2. Non-Hispanic/Latino White 
3. Non-Hispanic/Latino Black or African American 
4. Non-Hispanic/Latino Native Hawaiian or Other Pacific Islander 
5. Non-Hispanic/Latino Asian 
6. Non-Hispanic/Latino American Indian or Alaskan Native 
7. Non-Hispanic/Latino Two or More Races 

These classifications have been adopted by the CRD from the EEOC’s method for race/ethnicity identification provided in its EEO-1 instruction booklet.  

NOTE: For the 2023 Labor Contractor Employee Reports, employers must report the race/ethnicity of labor contractor employees.  

Employers should visit the CRD’s Pay Data Reporting website for additional information, templates and training slides.  

The California Privacy Protection Agency (Agency) is responsible for creating and enforcing California’s Privacy Rights Act (CPRA) regulations that took effect March 29, 2024.

As discussed here, the CPRA amended and expanded the California Consumer Protection Act (CCPA) by, among other things, giving consumers the right to correct inaccurate personal information collected by a covered business and to limit a covered business’s use and disclosure of “sensitive personal information” (e.g., social security number, racial or ethnic origin, religious beliefs, genetic data, precise geolocation) to specific identified purposes.

In its inaugural Enforcement Advisory No. 2024-01 (issued April 2, 2024), the Agency focuses on the importance of data minimization. “Data minimization” is a principle of data privacy that stipulates organizations should only collect, process, and store the minimum amount of personal data necessary to fulfill their purpose or service.

According to the Agency, data minimization serves several important functions such as supporting good data governance and reducing the risk that unintended persons or entities will access personal information. The Agency recommends an ongoing and periodic assessment of personal information collected, used, retained and shared by businesses. Such auditing will help to ensure information collected is relevant and limited to what is necessary in relation to the purpose for which it is being collected, used and shared.

Whether information collected, used, retained or shared is reasonably necessary and proportionate to achieve the purpose identified, is based on the following:

• The minimum personal information that is necessary to achieve the purpose identified (e.g., to complete onboarding procedures and send an email confirmation of documents sent to the consumer[i], an employer may need the consumer’s physical address, phone number and email address).
• The possible negative impacts on consumers posed by the business’s collection or processing of the personal information (e.g., a possible negative impact of collecting precise geolocation information is that it may reveal other sensitive personal information about the consumer, such as health information based on visits to healthcare providers).
• The existence of additional safeguards for the personal information to specifically address the possible negative impacts on consumers (e.g., a business may consider encryption or automatic deletion of personal information within a specific window of time as potential safeguards).

What Does it All Mean?

Data minimization, like all other CPRA mandates, does not lend itself to a ‘one-size fits all’ approach when it comes to compliance. Employers must review their own specific collection, use, retention and sharing practices to be able to effectively manage the personal information provided by employees for any given purpose (e.g., onboarding, promotions, providing healthcare and other benefits).

Employers can assess their data risk – and use data minimization to mitigate that risk – by asking the following questions:

• What is the minimum personal information that is necessary to achieve any given purpose (e.g., identity verification)?
• For any given purpose, what specific personal information do we already have? Do we need to ask for more personal information than we already have?
• What are the possible negative impacts posed if we collect or use the personal information for the identified purpose?
• Are there additional safeguards we could put in place to address the possible negative impacts?

[i] Consumer – in the employment context – means job applicant/candidate, current/former employee.