United States: Mid-Year Changes Required For California Employers

New legal requirements are not limited to changes in law that take effect on the first of the year. Companies in California must take note of new employment rules that impose additional requirements as of July 1, 2017 and require immediate action to ensure compliance. Additionally, San Francisco employers should be aware of the restrictions imposed by the Parity in Pay Ordinance, which will become operative on July 1, 2018.

Written Notice of Right to Protected Leave for Crime Victims

California law affords employees of companies with 25 or more employees the right to take leave if they become a victim of domestic violence, sexual assault or stalking. As of July 1, 2017, these employers must provide all new employees (or other employees upon request) with a written notice explaining their rights under Labor Code sections 230 and 230.1. The California Labor Commissioner's Office provides a sample form that satisfies the three key requirements:

  • Right to Take Time Off. California employers must ensure employees are aware of their right to take time off as a victim (or parent of a victim) of domestic violence, sexual assault or stalking as needed to ensure their health, safety or welfare. This includes time off to seek a restraining order or obtain medical attention or services.
  • Right to Reasonable Accommodation. California employers must also provide reasonable accommodations for a victim of domestic violence, sexual assault or stalking, as long as the employee provides the company with notice or the company has reason to know about the circumstances. Reasonable accommodations may include reassignment; changes to schedule, work telephone numbers and/or work stations; or the installation of locks.
  • Right to Be Free from Retaliation and Discrimination. Victims of domestic violence, sexual assault or stalking must not be fired or treated adversely due to their circumstances or because the employee asked for protected leave or reasonable accommodations.

Requests for leave or accommodation under Labor Code sections 230 and 230.1 may be unexpected or unusual for companies and their managers or supervisors. Employers should provide supervisors and human resource professionals with training about these employee rights to ensure compliance.

California Regulations on Transgender Expression and Identity

California's Fair Employment and Housing Council's new regulations, which took effect on July 1, 2017, may require companies to update their employment applications and policies in a number of ways. The regulations, entitled "Regulations Regarding Transgender Identity and Expression," provide guidance and additional requirements when dealing with gender-related issues in the workplace.

  • Prohibited Gender Inquiries. Most significantly, the regulations prohibit employers from asking about or requiring proof of an employee's sex, gender, or gender identity or expression as a condition of employment, unless there is a bona fide occupational qualification for doing so or the employee initiates communication. This issue most frequently arises with employment applications, which commonly include a box that asks an applicant to check whether he or she is a male or female. The rationale of the regulation is that gender is a protected characteristic, like race or religion, under the Fair Employment and Housing Act (FEHA), so without a legitimate reason, employers should avoid inquiring about gender during the hiring process. Companies subject to the FEHA are advised to revise their employment applications accordingly to remove questions about gender.
  • Bona Fide Occupational Qualification. Employers that believe a certain position requires an employee of a particular sex or gender identity should work with counsel to assess the legality of the requirement. Notably, the following reasons would not be lawful under the new regulations: hiring only males for labor because they are physically stronger or taller in the aggregate; a customer preference for women; the cost and burden of having to provide separate facilities for both men and women; an aversion to transgender individuals; or hiring for positions based on whether men or women have traditionally been hired to perform the particular type of job.
  • Restroom Facilities. The regulations also provide that employers must ensure that employees are permitted to use a restroom facility that corresponds to the employee's gender identity or expression. Companies cannot require employees to use a unisex or single-user bathroom or to use the bathroom that corresponds with their sex at birth. Employers should ensure that employees and supervisors are aware of the new protections.
  • Preferred Name and Identity. Employers must honor an employee's request to be referred to by their chosen name and preferred set of gender pronouns. Human resource professionals may still use the legal name of the employee as needed to meet legally mandated obligations, such as for tax reporting.
  • Dress Standards and Transitioning. The regulations provide that an individual may not be discriminated against because he or she is transitioning from one gender to another. Employers must also permit employees to dress consistent with their gender expression or identity, unless the employer can establish business necessity.
  • Definitions. Finally, the amended regulations include updated definitions for "gender identity," "gender expression," "transitioning" and "transgender." Employers should update their handbooks and policies to maintain policies that reflect these changes.

Going forward, employers will need to ensure that their applications, policies and practices are in accordance with the new regulations.

San Francisco's Salary History Ban

As previously reported, San Francisco's Pay in Parity Ordinance will become operative on July 1, 2018, prohibiting employers within the City and County of San Francisco from asking certain compensation-related questions during hiring.

The new law prohibits employers, including city contractors and subcontractors, from asking applicants about their salary history, from disclosing an employee's salary without permission, and from considering salary history in determining whether to offer employment to an applicant or what salary to offer. Monetary penalties for failing to comply with the law will start on July 1, 2019.

As another mid-year change, San Francisco companies will need to consider how they compensate employees, negotiate compensation during hiring and set annual increases before the law takes effect next year.

Compliance Recommendations

To avoid potential liability under the new laws and regulations, California employers are advised to take the necessary steps to ensure compliance: updating employee handbooks and policies, providing the necessary training to managers and employees, and revising new hire paperwork and interview procedures, including employment applications.

For Further Information

If you have any questions about this Alert, please contact any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are in regular contact.

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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