United States: Midyear Compliance Check-In for Restaurants and Bars in California

Just like checking your smoke detector or the air in your car tires, checking in about employment law updates midyear is a great idea. Here's a quick primer on some of the most significant, recent developments affecting restaurants and bars:

1. California's Version of the Equal Pay Act. It's a good time for all employers to conduct an audit to make sure they are not paying workers of one sex more than workers of the opposite sex who are performing substantially similar work, in violation of the California Fair Pay Act. As of January 1, 2017, California employers must also be able to show that any difference in pay between employees performing substantially similar work is not based on race or ethnicity. For example, if your pay scale is based on merit, seniority, a piecemeal rate, or another valid factor such as education or training, pay disparity may be justifiable. But, the best practice is to conduct a full analysis of the reasons for any pay disparity among your employees, and to make sure that prior wage salary history is not the sole reason for any pay disparity.

2.  Marijuana. Even though California "legalized" marijuana in the last election, employers need not permit marijuana use or distribution in the workplace. Under current California law, recreational and medicinal marijuana use does not need to be accommodated. (See Ross v. RagingWire Telecommunications, Inc.) When updating your employee handbook, make sure your drug-free workplace policy explicitly lists marijuana as a prohibited substance, particularly as cannabis is still  listed as a Schedule I drug under the federal Controlled Substances Act ("CSA") (21 U.S.C. § 812(c)).

3.  All-Gender Restrooms. If your bar or restaurant has a single-user restroom – a facility with only one toilet and urinal – it must have an "all gender" or unisex sign. (See Cal. Health & Safety Code § 118600.) The "all gender" sign must be tactile, meaning it can be read by touch. The sign must either: (1) indicate it is a restroom without reference to gender (e.g., "toilet") or (2) show the unisex symbol of a triangle with the vertex pointing upward, superimposed onto a circle that is ¼" thick and 12" in diameter. (Cal. Building Code, tit. 24, ch. 11B-703.7.2.6.3.)

Any male or female geometric signs generally must be replaced, unless the restroom is for multiple-users of one sex. If you have respective male and female restrooms for multiple users at a time, transgender employees should have access to the restroom that corresponds to their gender identity, regardless of their assigned sex at birth.

4.  Dress Codes & Appearance Policies.

Transgender Rights. The California Department of Fair Employment & Housing issued guidance  regarding dress codes as they apply to transgender individuals. California employers must permit workers to dress in a manner suitable for that employee's gender identity. An employer who requires a dress code must enforce it in a non-discriminatory manner, and cannot impose more burdensome requirements on one sex unless it can be justified as a bona fide occupational qualification. Furthermore, a transgender worker's compliance with a dress code cannot be judged more harshly than non-transgender women.

Right to Wear Insignia. In March of 2017, the National Labor Relations Board ruled that employees at In-and-Out Burger cannot be prohibited from wearing buttons, pins or stickers that support the fight to increase the minimum wage to $15 per hour. Even if non-unionized restaurant workers wear uniforms to promote the image of a clean restaurant with well-groomed workers, a blanket prohibition on insignia can violate the National Labor Relations Act.

5.  Rest Breaks. As a refresher, non-exempt workers in California are entitled to a 10-minute paid rest break for every 4 hours worked (or major fraction thereof). The rest break should be taken in the middle of the work period, to the extent practicable. This is in addition to meal breaks. Based on case law developments, employers should also ensure their workers are completely "off duty" and not "on call" during rest breaks, just they are during meal breaks such as lunch or dinner breaks. Workers can be required to stay on company premises because rest breaks are so short. But, the rest periods must be uninterrupted and never "on call." (See Augustus v. ABM Security Services, Inc.)

6.  Day of Rest.  In May of 2017, the California Supreme Court ruled on the law that mandates all workers must receive a "day of rest" every workweek. That 7-day workweek does not need to be rolling, which means that the day-off could be a Sunday one week, a Tuesday the next week, and a Friday the following week. Moreover, employees can choose to forgo that right if they are fully aware of it, and there is an exception for employees who work shifts of 6 hours or less every day of the workweek. (See Mendoza v. Nordstrom, Inc.)

In light of this recent development, it's a good time to make sure your workweek is clearly defined in your employee handbook, and to train managers not to pressure employees to work 7 days in a row. If an employee volunteers to work 7 days in a row, the best practice is to get written confirmation of that employee's decision.

As always, consult with your lawyer if you have any questions about how these employment laws apply to your business. We will continue to monitor these developments, including any appeals of cases discussed in this blog.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.

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