We posted before on AB 1732, which Governor Brown signed yesterday. This law prohibits businesses and government entities from labeling any “single-user toilet facility” as either “male” or “female.” It defines “single-user toilet facility” as “a toilet facility with no more than one water closet and one urinal with a locking mechanism controlled by the user.”

The bill’s sponsor, Assemblyman Phil Ting (D-San Francisco) issued a statement that:

Copyright: nu1983 / 123RF Stock Photo
Copyright: nu1983 / 123RF Stock Photo

“California is charting a new course for equality. Restricting access to single-user restrooms by gender defies common sense and disproportionately burdens the LGBT community, women, and parents or caretakers of dependents of the opposite gender. Bathroom access is a biological need. This law will ensure more safety, fairness, and convenience access for everyone.”

There’s no word yet on whether users of “single-user toilet facilities” will be statutorily required to put the seat down. The law takes effect March 1, 2017.

The Equal Employment Opportunity Commission issued its new “Enforcement Guidance on Retaliation and Related Issueson On August 25, 2016. Careful readers will be able to deduce from the section titled “Expansive Definition” that the EEOC uses an expansive definition of what constitutes protected activity. This activity is “protected” in the sense that any adverse action taken against someone for engaging in it is, by definition, retaliatory.

The EEOC Enforcement Guidance lists the following types of protected activity:

  1. Complaining about discrimination against oneself or others – This is the prototypical protected activity.
  2. Threatening to complain about discrimination against oneself or others
  3. Providing information in an employer’s investigation of discrimination or harassment
  4. Refusing to obey an order reasonably believed to be discriminatory
  5. “Passive resistance” – The EEOC gives the example here of a supervisor refusing a request to dissuade subordinates from filing EEO complaints. Apparently, the refusal doesn’t need to be articulated. Just not acting on the request is considered protected.

    Copyright: rtimages / 123RF Stock Photo
    Copyright: rtimages / 123RF Stock Photo
  6. Advising an employer on EEO compliance
  7. Resisting harassing behavior – The EEOC gives the example of an employee telling a supervisor to “leave me alone” and “stop it.” The fact that it’s a supervisor seems important here because the supervisor’s knowledge is imputed to the employer.
  8. Intervening to protect others from harassing behavior – Again, the EEOC example involves a co-worker intervening to stop harassment by a supervisor.
  9. Requesting accommodation for a disability or religion
  10. Complaining that pay practices are discriminatory – There doesn’t need to be an explicit reference to discrimination. If a woman says her pay is unfair and asks what men in the job are being paid, the EEOC deems that protected.

By taking a very broad view of what constitutes protected activity, the EEOC all but ensures that retaliation claims will remain the most popular charge it receives. We’ve previously described six steps that employers should take to protect themselves from these charges. As with so many types of employment claims, it pays to be proactive.

Bridgeport Continuing Education will be hosting a seminar titled: “Wrongful Termination, Harassment and Discrimination Claims” on July 29, 2016 in San Francisco. I will be speaking about Litigating and Defending Discrimination Claims, along with Jocelyn Burton. The program offers 5 hours of Mandatory Continuing Legal Education. You can get details and register here.

I hope to see you there!

Copyright: carlosphotos / 123RF Stock Photo
Copyright: carlosphotos / 123RF Stock Photo

Last month, the Select Task Force on the Study of Harassment in the Workplace issued a report. Among other things, it identified risk factors that can lead to harassment. They are:

  1. Homogeneous workforces – In other words, those that lack diversity.
  2. Workplaces where some workers don’t conform to workplace norms – This would include, for example, a man who’s perceived as overly feminine or a woman perceived as overly masculine.
  3. Workplaces with cultural and language differences – So too much homogeneity can be a problem, but so can too much diversity. Got it!
  4. “Coarsened Social Discourse Outside of the Workplace” – If people are crude outside of work, it’s more likely to spill over to the work environment.
  5. Workplaces with many young workers – According to the EEOC, young people are less aware of the laws and workplace norms. This makes them more likely to cross the line themselves and more likely to accept behavior that older workers know is over the line.

    Copyright: ocusfocus / 123RF Stock Photo
    Copyright: ocusfocus / 123RF Stock Photo
  6. Workplaces with large power disparities – The workers with less power are more vulnerable and the higher power ones “may feel emboldened to exploit them.”
  7. Workplaces that rely on customer service or client satisfaction – The key here is whether compensation is tied to customer satisfaction. If so, employees may be willing to put up with inappropriate conduct since it costs them money to object.
  8. Places where the work is monotonous or easy – “Idle hands …”, you know?
  9. Isolated workplaces – Fewer people around means fewer witnesses.
  10. Workplace cultures that tolerate or encourage alcohol consumption – Let’s all drink to that!
  11. Decentralized workplaces – If senior management is far away, lower levels of management may feel less accountable.

So the answer is simple. To minimize the risk of harassment claims you need to make sure that your workforce is diverse, but not too diverse; that everyone conforms to the same norms; that people behave appropriately even when they’re not at work; that you don’t hire those pesky young people; that you eliminate hierarchies; that you stop paying attention to customer service; that you make all the work interesting; that you have everyone work at one location; and that you discourage drinking.

If you’re not able to run your business that way, we’ve identified 6 questions employers should ask before receiving a harassment complaint.

Trying to keep track of all of California’s paid sick leave requirements is a daunting task. The state has its own rules and then so do seven municipalities, with Los Angeles joining the list July 1, 2016. Wouldn’t it be great if there was a single chart that contained all the requirements? Well now, thanks to Tyreen Torner, there is. Click on the link to download a PDF of the California Paid Sick Leave Rules Chart.

Copyright: olivier26 / 123RF Stock Photo
Copyright: olivier26 / 123RF Stock Photo

Are you curious about how the accrual cap rules in Oakland compare to the accrual cap rules in Santa Monica? Of course you are! Don’t be afraid to admit it. Are you wondering how the definition of sibling in San Francisco compares to the definition of sibling in San Diego? Just look it up. It’s all there. Right at your fingertips. Thank you Tyreen!

Seven months ago, Governor Brown vetoed a bill (AB 1017) that would have prohibited California employers from asking applicants about their salary history. Now a new bill that contains some of the same language, AB 1676, is before the legislature. Under both AB 1676 and its predecessor:

Copyright: liravega258 / 123RF Stock Photo
Copyright: liravega258 / 123RF Stock Photo

An employer shall not, orally or in writing, personally or through an agent, seek salary history information, including, but not limited to, compensation and benefits, about an applicant for employment.

The new bill hasn’t made it very far and there’s no reason to believe it will fare better than AB 1017. But even if it doesn’t pass, should employers ask applicants about their prior earnings? I can think of three good reasons not to.

  • First, under California’s Fair Pay Act, salary history is not a proper justification for a pay disparity. So you can’t use that as a basis for paying one worker more than a co-worker who is performing “substantially similar” work. It’s easier to argue that you didn’t rely on this impermissible factor if you didn’t seek out the information.
  • Second, there seems to be growing sentiment that the question is improper and overly intrusive. For example, Alison Green, who writes the Ask a Manager blog, wrote this piece for US News giving tips on how to avoid answering the question directly.
  • Third, if you’re looking to fill a position, you should have some idea what people in that position make and what the value is to your organization. If you genuinely have no idea, maybe the benefits of asking the question outweigh the risks. But in most situations, asking for information that you’re prohibited by law from relying on is a bad idea.

Of course, if the legislature passes the measure prohibiting salary history inquiries, the issue will be moot.

Here’s another fun aspect of AB 1676. It says that: “an employer, upon reasonable request, shall provide the pay scale for a position to an applicant applying for employment.” I’ve never heard of such a requirement before. Even if you make applicants sign nondisclosure agreements, isn’t it just a matter of time before your competitors know what you’re paying your workers? While we may get into this in more detail in a later post, I’ll say now that I think it’s a very bad idea. I also think the legislature knows that, since they’ve had the foresight to specifically exempt themselves from that requirement.

UPDATE: On June 2, 2016, the Assembly passed AB 1676. It now heads to the Senate.

The state legislature is considering a bill to require one-person restrooms to be labelled “All Gender.” The California Assembly approved the bill (AB 1732) on May 9, 2016 and it is now before the Senate.

AB 1732 would prohibit businesses and government entities from labeling any “single-user toilet facility” as either “male” or “female.” It defines “single-user toilet facility” as “a toilet facility with no more than one water closet and one urinal with a locking mechanism controlled by the user.”

Copyright: karenr / 123RF Stock Photo
Copyright: karenr / 123RF Stock Photo

The bill’s sponsor, Assemblyman Phil Ting (D-San Francisco) said:

We just sent a powerful message to the nation. This is a simple, safe, and respectful alternative to the hate being legislated in other states. Restrooms are a necessity of life, making equal access to them a civil rights issue. Gender segregated access to a solitary restroom defies common sense. This bill moves us in a direction where everyone’s rights are respected and protected

Ting’s reference to the “hate being legislated in other states” is directed at North Carolina’s battle with the US Department of Justice over that state’s legislation requiring people to use the bathroom or changing room that corresponds to the sex stated on their birth certificate. That bill deals only with multiple-user restrooms and changing facilities.

California NOW has joined transgender groups in supporting the issue. Its President, Jerilyn Stapleton, explains that single gender restrooms require women to wait longer. “Everyone should experience equal waiting time.”

If passed, which seems likely, the bill will take effect on March 1, 2017.

We recently updated a 15-page brochure that summarizes California’s unique employment law requirements. And it’s completely free. Not just free in terms of no cost, but also gluten free, which is a big deal here in the Golden State. Just download the PDF and it’s all yours.

Copyright: asiln / 123RF Stock Photo
Copyright: asiln / 123RF Stock Photo

The guide provides clear summaries of California’s unique requirements for meal and rest periods, the Fair Pay Act, paychecks and wage statements, the various leaves of absence, and more. Spending a little time to determine if your company is sufficiently protected is a lot quicker and cheaper than waiting for a lawsuit and learning first hand why California ranks as the number one judicial hellhole.

Special thanks to Sahara Pynes for her work updating this guide and to Cristina Armstrong and Tyreen Torner for their work on prior versions.

The recent lawsuit by five members of the US Women’s National Team against U.S. Soccer has received considerable media attention. Today’s post looks at what the lawsuit teaches us about California’s Fair Pay Act.

Before the Fair Pay Act took effect on January 1, 2016, the law required equal pay for equal work. From a defense perspective, you can argue that the women couldn’t meet that standard. You could argue that the stars of the women’s team, as brilliant as they are, don’t have the speed and power needed to earn a spot on the men’s team.

With the Fair Pay Act, however, you don’t need equal work. You need substantially similar work. For that inquiry, you look at “a composite of skill, effort, and responsibility” and whether the work is “performed under similar working conditions.” I suspect the women would meet that standard.

Copyright: ostill / 123RF Stock Photo
Copyright: ostill / 123RF Stock Photo

Disclaimer No. 1: By saying they couldn’t make the men’s team, I’m not denigrating the accomplishments of the US Women’s National Team. They’ve been the best in the world. Those of us who still talk about how close we came to an intramural high school basketball championship are in no position to cast aspersions.

Disclaimer No. 2: I’m not saying the women don’t deserve better treatment and higher pay. I’m just using this to illustrate how the law has changed. While I suspect the dispute will be resolved through negotiation, perhaps in the collective bargaining process, I’m rooting for the USWNT to score this goal.

The Bay Area Urban Debate League (“BAUDL”) is a debate mentoring program that currently serves hundreds of low-income and minority students at 22 Bay Area schools. Studies show that these programs improve literacy, GPA, graduation rates, and provide a host of other direct benefits to the participants, their schools, and the community.

Fox Rothschild LLP is proud to be among 16 law firms competing in BAUDL’s “Champions of Diversity” fundraising campaign. The initial round is this week, ending Friday, April 1st, during which the firms will compete to see which one can raise the most money and the most money per attorney in their Bay Area offices. There will then be a second round among the top three finalists. The winner gets a full-page ad.

You can find updated results here. If you’re moved to give, you can do so on behalf of any of the law firms listed (such as Fox Rothschild!) or you can donate to the unaffiliated group. Every bit helps and it’s a very worthy cause.