California Ushers In Wave Of Sexual Harassment Laws In Wake Of #MeToo Movement

California Governor Jerry Brown recently signed a number of sexual harassment bills into law, which take effect January 1, 2019. Many of these laws were approved to address persistent sexual harassment issues in the workplace and elsewhere, as highlighted by the #MeToo movement. Below is an overview of the new sexual harassment laws, which affect employers and other businesses and professionals:

California Enacts New Transgender Employment Laws

California’s new transgender regulations took effect July 1, 2017. The new regulations expand on Fair Employment and Housing Act laws that prohibit employers from discriminating or harassing applicants and employees who identify as transgender regardless of the person’s sex assigned at birth. An employee’s right to appear and dress consistent with their gender is now protected. In addition, new regulations, set forth in California Code of Regulations, Title 2, sections 11030, 11031, and 11034, now protect gender identity and gender expression. These regulations specifically define the following:

  1. 1. Transgender. Transgender is now defined as a person whose gender identity differs from his/her sex assigned at birth.
  2. 2. Gender expression. Gender expression refers to a person’s gender related appearance or behavior. 
  3. 3. Gender identity. Gender identity is defined as a person’s internal understanding of his/her gender. It also includes the perception of a person’s gender identity.

Key changes to the FEHA include the following:

  1. 1. Transitioning

The new regulations briefly describe the notion of transitioning. Transitioning may include hormone therapy, surgical alterations, or undergoing other medical procedures related to gender. An employer cannot discriminate against an employee who is transitioning or who has transitioned. Employers are also not allowed to directly or indirectly ask employees whether or not they are transitioning.

  1. 2. Employee Names & Gender Requests

Employers are required to honor an employee’s request to be identified by a preferred gender, name, or pronoun. Employers are allowed to use an employee’s legal name or gender as indicated on an official government issued document to fulfill a legally mandated obligation.

  1. 3. Gender Information

Employers are prohibited from requesting proof of an applicant or employee’s sex, gender, or gender identity or expression. An employer can request for the information to be provided on a voluntary basis. An employee can also initiate conversation regarding their gender orientation without recourse to the employer. An employer can require an employee to state their gender to determine whether he/she meets a “bona fide occupational qualification.”

  1. 4. Facility Accessibility

Employers must ensure all employees, including transgendered, now have equal access to comparable, safe, and adequate facilities regardless of the employee’s sex. An employee now has a right to use a facility that corresponds to his/her gender identity or gender expression. Facilities include restrooms, locker rooms, and showering areas.

  1. 5. Signage

Gender-neutral signage is required for single-occupancy facilities under an employer’s control.

California employers should review their equal employment opportunity laws to make sure they are following the new regulations of the FEHA. Under the new rules, if an employee requests to be identified with a preferred gender, and an employer fails to honor such a request, the employee can file a lawsuit against the employer under the new regulations. An employee’s gender identity should be respected. Employers should train managers and supervisors on the new regulations to ensure that they follow them.

California’s New Employment Law Bans Criminal History

Under a new law which took effect July 1, 2017, California employers are no longer be allowed to consider an applicant’s criminal history when making employment decisions if doing so will have an adverse impact on applicant in a legally protected class (race, national origin, or gender) as defined by the Fair Employment and Housing Act.  The new regulations limit an employer’s ability to inquire into prior arrests of an applicant which did not result in a criminal conviction. The new law applies to employers with five or more employees. An employer can consider criminal history when hiring an applicant if they can establish the practice is job related and consistent with business necessity.

New California Law Prohibits Asking About Salary History

On October 12, 2017, Governor Jerry Brown of California signed into law a state-wide ban on employer inquiries into an individual’s salary history. The new law, AB 168, prohibits employers from inquiring about an applicant’s past salary history. Employers are also prohibited from seeking past salary information when determining a proposed new-hire salary. Employers must also provide employee position pay scales when requested. Nevertheless, if an applicant voluntarily provides this information to an employer, the employer may rely on it when considering a potential salary to offer. The new law will apply to all employers, including state and local governments, and will take effect on January 1, 2018. The goal of the new bill is to narrow the gender wage gap between men and women. For example, women who are paid less the men may continue to suffer unequal pay if their new salary is based on their prior salary history. Employers should focus on an applicant’s qualifications and their internal pay scales when deciding which candidate is a good fit for a position. Employers should also view their job application forms to make sure they are not directly soliciting salary information.


New Baby Bonding Law For California Small Business Employers

Effective January 1, 2018, California small business owners will be required to provide 12 weeks of baby bonding leave to employees. On October 12, 2017, Governor Jerry Brown signed SB 63 expanding on parental leave rights of California small business employees. Currently, the California Family Rights Act and Family and Medical Leave Act requires employers with 50 or more employees to provide up to 12 weeks of leave to an employee within one year of an adoption, child’s birth, or foster care placement. Employees who worked for more than 12 consecutive months for at least 1,250 hours can take up to 12 weeks of CFRA or FMLA leave. Upon returning to work, employees can return to their former position or be placed in a comparable one. Employers are also prohibited from retaliating against employees taking CFRA or FMLA leave. As of January 1, 2018, SB 63 now requires employers with 20 to 49 employees to allow up to 12 weeks of baby bonding leave.  The Department of Fair Employment and Housing (DFEH) has created a pilot program to provide mediation services between employers and employees for disputes that may arise regarding the new requirements.

California Companies Must Pay Premium For On-Call Rest Periods: Augustus v ABM Security Services, Inc.

The California Supreme Court recently held that California companies must pay for on-call rest periods. See Augustus-v.-ABM-Security 2016 WL 7407328 (Cal. Dec. 22, 2016)2016 WL 7407328 (2016) In Augustus, the plaintiffs, who worked as security guards at sites throughout California, alleged that ABM required guards to keep their radios and pagers on during rest periods. Guards were to remain “vigilant and responsive” to calls and alerts at all times. As a result, the guards alleged that they did not receive a duty-free rest period as prescribed by law.

California Supreme Court Clarifies “Day of Rest” Statutes

In the recent opinion Mendoza v. Nordstrom, Inc. (Case No. S224611, May 8, 2017), the California Supreme Court answered unsettled questions about the state’s day of rest statutes, Labor Code sections 550 – 558.1. These statutes prohibit an employer from causing its employees to work more than six days in seven without taking a day of rest, but do not apply when an employee’s total hours of employment do not exceed 30 hours in any week or 6 hours in any day.

In Mendoza, the Court ruled as follows:

  • – A day of rest is guaranteed for each workweek. Periods of more than six consecutive days of work that stretch across more than one workweek are not per se prohibited.
  • – The exemption for employees working shifts of 6 hours or less applies only to those who never exceed six hours of work on any day of the workweek. If on any one day an employee works more than six hours, a day of rest must be provided during that workweek, subject to whatever other exceptions might apply.
  • – An employer causes its employee to go without a day of rest when it induces the employee to forgo rest to which he or she is entitled. An employer is not, however, forbidden from permitting or allowing an employee, fully apprised of the entitlement to rest, independently to choose not to take a day of rest.

With the court’s ruling in Mendoza, employers must ensure their break policies are in compliance with the law. Read on to learn more.

California Department of Fair Employment and Housing Releases New Workplace Harassment Guide For Employers

In May, the California Department of Fair Employment and Housing (DFEH) released a Workplace Harassment Guide. The new step-by-step guide, available here, provides employers with specific recommended practices to prevent harassment in the workplace, to respond employee complaints of harassment, and to conduct a fair investigation of the employee’s complaint. Prepared by DFEH’s California Sexual Harassment Task Force, this guide gives employers helpful, practical guidance and steps to comply with employers’ legal obligations to prevent and address workplace harassment.

EEOC Offers New Online Resource Center for Small Business Employers

The U.S. Equal Employment Opportunity Commission (EEOC) released a new online resource center for small businesses. The Small Business Resource Center is designed to help small business owners comply with federal employment anti-discrimination laws. In addition, the resource center provides guidance on making employment decision and information on a variety of potential workplace discrimination issues.

The resource center was designed to help small business owners better understand their legal responsibilities under federal anti-discrimination employment laws. The new resource center is part of the EEOC’s Small Business Task Force. The task force focuses on addressing the needs of small businesses by providing information on social media websites in addition to other online channels. The new resource center has also launched the first in a series of short videos for small business owners focusing on frequently asked anti-discrimination compliance questions.

Commissioner Constance Barker stated the following regarding the resource center:

“On behalf of EEOC’s Small Business Task Force, I am very pleased to announce the release of the SBRC. Startups and other small businesses continue to play an integral role in the strength of our nation’s economy. It is our responsibility as a federal government agency to help businesses understand their legal obligations under the complex and ever-changing laws and regulations we enforce. We want small businesses to be able to quickly and easily access the information they need to comply with the laws. It is our hope that the Small Business Resource Center will help them do just that, so that they can focus their time and efforts on growing their businesses and creating new jobs.”

Contact our law office for more information about state and federal anti-discrimination laws and resources.

Choice of Law & State Venue Provisions Now Restricted in California Employment Agreements

On September 25, 2016, California Governor Jerry Brown approved a new law allowing California employees to unilaterally void forum selection or choice of law clauses (not the entire agreement) in employment contracts. S.B. 1241 regulates where and under what law California employees can sue and arbitrate. The new law will take effect on January 1, 2017.contract-1464917_1920

Impact of SB 1241

Most agreements allow contracting parties to select a forum to litigate or arbitrate a dispute. Under S.B. 1241, employers are prohibited from requiring, as a condition of employment, an employee who primarily resides and works in California to agree to any contractual provisions that will: 1) require the employee to litigate or arbitrate claims arising in California in a foreign forum (outside of California); and 2) deprive the employee of the protection of California employment laws. The new law also includes, but is not limited to, executive contracts, covenants, and non-compete agreements.

An employee must be represented by legal counsel when negotiating an out-of-state venue, forum, or choice of law term. If a forum selection or choice of law provision is included in an employment agreement, the reviewing court can enjoin reliance on the provision, declare it unlawful, and award reasonable attorney fees.

S.B. 1241 will be codified as Section 925 of California Labor Code. Employers should review any employment or arbitration agreements to make sure they are in compliance with the new law. Employee contracts may need to be revised. Contact our law office for more information about modifying your existing employment agreements.