2017 Employment Law Update
Many laws and regulations went into effect in 2017 that affect employers in California. Below is a summary of some of the major laws and regulations from 2017 for your review to ensure that your company has complied with those laws and regulations.
New Cal/OSHA Regulation on Workplace Violence Prevention
California Labor Code 6400 requires that every employer furnish to employees a place of employment that is safe and healthful to employees. Every employer is also required to adopt an effective written Injury and Illness Prevention Program (IIPP). Employers should address the potential for violence in the workplace and adopt a program for workplace security. Additionally, health care providers have additional obligations to prevent violence in the workplace under a new health care rule.
DFEF Regulation on Gender Discrimination
The California Department of Fair Employment and Housing adopted a new regulation that created a new protected class for individuals who are gender transitioning. Members of this new protected class cannot be discriminated against, harassed, or retaliated against for their status as gender transitioning. Employers may not ask an employee what their gender is during the application and post job offer periods. If an employee’s personnel file is to include what the employee’s gender is, that information must be provided by the employee voluntarily. The legislature passed a law this past year as well on this subject that is discussed below.
AB 2337 – Employment protections for victims of domestic violence, sexual assault, or stalking
AB 2337 requires that employers with 25 or more employees to provide specific information in writing to new employees upon hire and to other employees upon request of their rights to take leave under Labor Code Section 230.1 (relating to victims of domestic violence, sexual assault, or stalking). The Labor Commissioner’s Office has prepared a notice, as required by AB 2337, which employers must provide employees upon hire and must post with other employment posters. The notice is available at http://www.dir.ca.gov/dlse/Victims_of_Domestic_Violence_Leave_Notice.pdf .
New California Gender Identity and Expression Regulations
The California Department of Fair Employment and Housing recently adopted new rules and regulations regarding gender identity and gender expressions rights for employees that go into effect July 1, 2017. The new rules expand the protections afforded to individuals based on their gender identity and gender expression. California employers are now required to implement the following policies:
“Transitioning” is now a protected class. Employers may not discriminate, harass, or retaliate against an employee on the basis that the employee is Transitioning. Transitioning is defined as, a “process some transgender people go through to begin living as the gender with which they identify, rather than the sex assigned to them at birth. This process may include, but is not limited to, changes in name and pronoun usage, facility usage, participation in employer-sponsored activities (e.g. sports teams, team-building projects, or volunteering), or undergoing hormone therapy, surgeries, or other medical procedures.”
In is now unlawful for an employer to condition the availability of fringe benefits upon an employee’s gender identity or gender expression.
Employers must allow their employees to use the restroom or facility that corresponds to the employee’s gender identity or gender expression regardless of the employee’s assigned sex at birth. Single occupancy restrooms must use gender neutral signage for those facilities.
Employers must not require their employees to provide proof of any identity document or proof of any medical treatment or procedure to use facilities designated for a particular gender. Employers may make a reasonable and confidential inquiry of an employee for the sole purpose of ensuring access to comparable, safe, and adequate multi-user restrooms or facilities.
Employers must not impose upon an applicant or employee any physical appearance, grooming, or dress standard which is inconsistent with an individual’s gender identity or expression, unless the employer can establish business necessity.
Name and Identity
Employers must abide by an employee’s request to be identified by a certain name, gender identity, or pronoun. Employers may only insist on using an employee’s legal name or gender if it is otherwise required to meet a legally-mandated obligation.
Employers may not directly or indirectly make inquiries in an employment application that identify an individual on the basis of sex, including gender identity or expression unless the employer establishes a permissible defense (Bona Fide Occupational Qualification, Business Necessity, Job-Relatedness, or Security Regulations). After the employment relationship begins, and employer may only request this information solely on a voluntary basis for recordkeeping purposes. Employers may not discriminate against an employee who fails to designate ‘male’ or ‘female’ on an employment application.
Employers should ensure their policies comply with the new regulations regarding gender identity and expression. The regulations will require amendments to employee handbooks and employment applications and related policies.