What if Bruce Jenner Were My Employee? Employers and Transgender / Transitioning Employees.

Q.     Much has been made recently about Bruce Jenner and his upcoming exclusive interview with Diane Sawyer in which he will discuss his plans to live as a woman.  There seems to be a reality TV/gossip magazine quality to the way Jenner is going about this.  This makes sense because he is part of the reality show “Keeping up with the Kardashians,” and because there were rumors his transition would be made into his own reality show.   I can imagine that somebody contemplating a similar transition in the workplace could become a very delicate situation.  This may be particularly true if the transitioning or transgender employee wants to use the restroom that is inconsistent with his or her current anatomy.  If I, as the employer, allow the person to use the other bathroom, I might get a sexual harassment claim from the other employees and, if I don’t, then there is potential for a lawsuit from the transgender/transitioning employee.  I don’t know what I would do!  To avoid it all, could I simply have an office meeting in which we all openly discuss the issue so everybody feels comfortable?   Is that infringing upon the employee’s privacy?  Since Kim, Kourtney and Khloe’s biological dad was a lawyer I tried reaching out to the clan – but, they are ignoring my tweets – and, frankly, I can’t keep up.  Can you help?

A.     It’s good you asked.  All kidding aside, this indeed is a delicate situation as not all “transitioning” people would want reality TV documenting their situation.  The Fair Employment and Housing Act (“FEHA”) prohibits discrimination against, among other protected classes, sex, gender, gender identity, gender expression, and sexual orientation.  “Gender identity” and “gender expression” were expressly added to the FEHA in 2011 when Governor Brown signed into law AB 877 – The Gender Nondiscrimination Act.  AB 877 also specifically refined the definition of gender to include “gender identity” and defined “gender expression” to mean a person’s gender-related appearance and behavior, whether or not stereotypically associated with the person’s assigned sex at birth.   Based on FEHA, employers must carefully consider dress codes and appearance standards that require men and women to dress differently.  And, perhaps the more difficult aspect is the restroom.  Unfortunately, there is limited authority on this point.  The easiest solution, if practical, is to have gender neutral restrooms which allow only one person occupancy at a time.  However, this may not be practical.  If not, the employer must be very cautious about preventing somebody from using a bathroom inconsistent with that person’s gender identity.  The Obama Administration recently announced, “the White House allows staff and guests to use restrooms consistent with their gender identity, which is in keeping with the administration’s existing legal guidance on this issue and consistent with what is required by the executive order that took effect [Wednesday] for federal contractors.”  Although the White House’s policies are not binding law, it definitely provides insight into how at least the executive branch  – which includes the Department of Labor and the U.S. Equal Employment Opportunity Commission (EEOC) – views the issue.    Finally, you are right to be concerned about the employee’s privacy.  However, where an employee is making such an obvious change, he or she might not have any issue openly discussing it.  This may be an issue that you first discuss with the transitioning employee, and then, make a plan together on how to best approach it with your other employees in a private setting – you can leave the selfies, tweets and “leaked” information to the Kardashians.

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

2019 – New Year, New Employment Laws!

Q:        As I sing auld lang syne and close my calendar year at my business, I look back fondly at all the things 2018 brought me and my business.  Those fond memories do not include the increase in minimum wage and restrictions on criminal history inquiries in employee applications.  As I prepare to make more memories in 2019, are there any new laws relevant to me as an employer?  Tell me I will look fondly upon them!

A:        Fondly or not, you better look closely at all the new laws 2019 brings. While the Federal Government might be shutdown, the state legislature has been hard at work creating or clarifying employee protections.  Riding the wave of the #metoo movement, California legislatures introduced a plethora of new sexual harassment-related bills this year.  Below is a summary of some of the employment-related laws that took effect on January 1, 2019:

SB 224 – Sexual Harassment – Civil Code § 51.9, Government Code §§ 12930, 12948

The first of the #metoo movement bills, this amends California Civil Code Section 51.9 to expand the types of relationships subject to a claim for sexual harassment to include lobbyists, elected officials, directors, producers, and investors.

SB 820 – Settlement of Sexual Harassment Claims – Code of Civil Procedure § 1001

This new law prohibits provisions in settlement agreements entered into after January 1, 2019 that prevent disclosure of facts relating to sexual assault, sexual harassment, gender discrimination or related retaliation claims that have been filed in court or before an administrative agency. However, this new law does not prohibit restriction on disclosing settlement amount or the claimant’s identity.

 SB 1300 – FEHA Amendments – Government Code §§ 12923, 12940, 12950.2, 12964.5, and 12965

This bill amends the Fair Employment and Housing Act as follows: (1) to make employers liable for any kind of unlawful harassment by non-employees (not just for sexual harassment) where employer knew or should have known of the harassment and failed to take appropriate remedial action; and (2) amending the legislative intent to indicate that harassment is rarely appropriate for resolution on summary judgement (making it harder for employers to prevail of sexual harassment claims).

SB 1343 – Sexual Harassment Training – Government Code §§ 12950, 12950.1

This new law expands sexual harassment training requirements to employers with 5 or more employees and requires that employers provide at least two hours of training to supervisory employees and at least one hour of training to non-supervisory employees by January 1, 2020 and once every two years thereafter.

AB 1619 – Statute of Limitations Sexual Assault – Code of Civil Procedure § 340.16

This new law increased the statute of limitations for filing a civil action for sexual assault to 10 years after the alleged assault or 3 years after discovered or reasonably discovered injury as a result of the assault, whichever is later.

AB 2770 – Defamation – Civil Code § 47

This bill codifies California defamation case law to clarify that (1) employees who report sexual harassment to their employer are not liable for any resulting injury to the alleged harasser’s reputation, so long as the communication is based on credible evidence and without malice; (2) communications between employers and anyone with an interest in a sexual harassment complaint are not liable for resulting damages to alleged harasser’s reputation so long as communication is made without malice; and, (3) former employers are not liable for any resulting injury to a former employee’s reputation if, in response to inquiries from prospective employers, former employers indicate that they would not rehire the former employee based on a determination that the former employee engaged in sexual harassment, so long as the statement was made without malice.

AB 1976 – Lactation Accommodation – Labor Code § 1031

This bill amends existing law to require employers to make reasonable efforts to provide a permanent location, other than a toilet stall to be used for lactation, unless an employer can prove that it is an undue hardship to comply with these requirements. The location may be temporary if the following requirements are met: (1) employer is unable to provide a permanent location due to operational, financial, or space limitations; (2) the temporary location is private and free from intrusion while being used for lactation purposes; and (3) the temporary location is not used for other purposes while being used for lactation. The new law also provides that an agricultural employer may comply by allowing an employee to use the air-conditioned cab of a tractor or truck.

SB 1252 –  Copy of Payroll Records – Labor Code § 226

This bill requires that if an employee requests a copy of his or her payroll records, the employer must provide the copies within 21 days (as opposed to requiring the employer simply make the records available for the employee’s inspection).

AB 1565 – Contractor Liability – Labor Code § 218.7

This bill amends existing law making certain direct contractors liable for unpaid wages of subcontractors. The amendment provides requirements that must be met in order for a direct contractor to withhold payments to a subcontractor for “disputed sums.” In order to withhold payment, the contractor must specify in its contract with a subcontractor all items of information that will be requested of the subcontractor, such as payroll records and other information related to hours worked.

 In addition to the above summary, click the link below to read about the following bills which also relate to employment: AB 3109 (Testifying/Disclosure of Sexual Harassment); SB 954 (Mediation, Confidentiality, Disclosure); SB 826 (Gender Composition of Boards of Directors); SB 1123 (Paid Family leave Uses); AB 2012 (School and Community College Employees: Parental Leave); AB 2605 (On-Call Rest Breaks/Petroleum Industry); AB 2610 (Meal Periods- Commercial Drivers for Feed Manufacturers); AB 3082 (Sexual Harassment – In-Home Supportive Services); AB 2455 (Home Care Aid Registry); SB 1412 (Criminal History Inquiries); AB 2282 (Salary History Information); AB 2034/ SB 970 (Human Trafficking Training); AB 1654 (PAGA Relief for Unionized Construction Employers);  and SB 785 (Disclosure of Immigration Status in Open Court) http://leginfo.legislature.ca.gov/.

Also, while not a new law, employers must remember that minimum wage again has increased from $11 to $12 per hour for employers with 26 or more employees, and from $10.50 to $11 per hour for employers with 25 or less employees.

While 2018’s closure may bring about the end of trends like the flossing dance craze, unfortunately, it will not be the end of new employment laws.  New year, same California legislators working hard to impact employers.  If you have questions related to these new laws, Baker Manock & Jensen’s employment attorneys would be happy to assist. Happy New Year!

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

New Year, New You (and New Rules, Too!)

Q:    Last year I opened a hand-rolled ice cream shop that I run with the help of my fifteen employees. Business is booming, so I want to hire more employees and open another location in early 2018. Are there any new laws I should know about before I expand my business?

A: Yes, indeed. Get out your note pads California employers, because your legislature has insisted on a few additions to your 2018 “resolutions.” Effective January 1, 2018, your employment operations will be affected as follows:

  • Employment Application Restrictions:
    • Conviction History: Employers with five or more employees, including state or local government employers, can no longer ask applicants, orally or in writing (i.e., on an application), about criminal history before a conditional job offer is given. Employers may consider results of a criminal background check after a conditional offer is made. However, if conviction history is a factor in denying employment to the applicant, the prior conviction must have a “direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.” The conditional offer can be rescinded due to conviction history, but the employer must inform the applicant of the rescission in writing, along with other various notification requirements, and provide applicant a chance to respond.[1]
    • Salary History: Employers, including state and local government employers, are prohibited from asking orally, in writing, personally or through an agent, for an applicant’s salary history. Applicants may voluntarily and without prompting disclose salary history, but an employer cannot rely on an applicant’s salary history information as a factor in determining whether to hire an applicant or what salary to offer an applicant. Employers must also provide a pay scale for an applicant’s position upon a reasonable request.[2]
  • Prohibition of Medical and Recreational Marijuana: While anyone 21 and older can now buy and consume marijuana in California, employers can still prohibit its use. Employers may still impose drug tests on employees, and may refuse to hire prospective employees or terminate employees who use marijuana. Employers may do so regardless of whether the use occurred on the job, and regardless of whether the use is medical or recreational, if that use conflicts with company policy.[3]
  • Harassment Training Requirements for Gender Identity, Gender Expression and Sexual Orientation: Employers with 50 or more employees must now include training on gender identity, gender expression, and sexual orientation harassment as a component of the recently mandated two hour sexual harassment that must occur every two years.[4]
  • Minimum Wage Increase: The minimum wage in California has increased to $10.50 per hour for employers with 25 or fewer employees. The minimum wage has increased to $11.00 per hour for employers with 26 or more employees. This also means that the minimum threshold for most exempt workers is increasing as it must be at least two times the minimum wage. As a reminder, minimum wage is increasing again soon and is scheduled to reach $15.00 per hour by January 1, 2023 for all employers, regardless of size.[5]
  • Extended Pregnancy Leave Requirements: Employers with 20 or more employees must provide eligible new parents up to 12 weeks of unpaid leave from work to bond with a new child. Previously, this requirement only applied to employers with 50 or more employees.[6]
  • Joint Liability for General Contractors: General contractors may now be held jointly liable for the wage and hour violations of their subcontractors under contracts signed after January 1, 2018. Only the following parties can pursue a claim under this law: (1) the Labor Commissioner; (2) a third party owed fringe benefit payments; or (3) a joint labor management cooperation committee. General contractors remain protected from penalties or liquidated damages. Moreover, general contractors can verify wages actually owed upon request, and withhold disputed wages if a subcontractor fails to provide requested information.[7]

If you have questions related to these new regulations, Baker Manock & Jensen’s employment attorneys would be happy to assist. Happy New Year and good luck sticking with those resolutions!

 

[1] Assembly Bill 1008

[2] Assembly Bill 168

[3] Proposition 64

[4] Senate Bill 396

[5] Senate Bill 3

[6] Senate Bill 63

[7] Assembly Bill 1701

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

2019 – New Year, New Employment Laws!

Q:        As I sing auld lang syne and close my calendar year at my business, I look back fondly at all the things 2018 brought me and my business.  Those fond memories do not include the increase in minimum wage and restrictions on criminal history inquiries in employee applications.  As I prepare to make more memories in 2019, are there any new laws relevant to me as an employer?  Tell me I will look fondly upon them!

A:        Fondly or not, you better look closely at all the new laws 2019 brings. While the Federal Government might be shutdown, the state legislature has been hard at work creating or clarifying employee protections.  Riding the wave of the #metoo movement, California legislatures introduced a plethora of new sexual harassment-related bills this year.  Below is a summary of some of the employment-related laws that took effect on January 1, 2019:

SB 224 – Sexual Harassment – Civil Code § 51.9, Government Code §§ 12930, 12948

The first of the #metoo movement bills, this amends California Civil Code Section 51.9 to expand the types of relationships subject to a claim for sexual harassment to include lobbyists, elected officials, directors, producers, and investors.

SB 820 – Settlement of Sexual Harassment Claims – Code of Civil Procedure § 1001

This new law prohibits provisions in settlement agreements entered into after January 1, 2019 that prevent disclosure of facts relating to sexual assault, sexual harassment, gender discrimination or related retaliation claims that have been filed in court or before an administrative agency. However, this new law does not prohibit restriction on disclosing settlement amount or the claimant’s identity.

 SB 1300 – FEHA Amendments – Government Code §§ 12923, 12940, 12950.2, 12964.5, and 12965

This bill amends the Fair Employment and Housing Act as follows: (1) to make employers liable for any kind of unlawful harassment by non-employees (not just for sexual harassment) where employer knew or should have known of the harassment and failed to take appropriate remedial action; and (2) amending the legislative intent to indicate that harassment is rarely appropriate for resolution on summary judgement (making it harder for employers to prevail of sexual harassment claims).

SB 1343 – Sexual Harassment Training – Government Code §§ 12950, 12950.1

This new law expands sexual harassment training requirements to employers with 5 or more employees and requires that employers provide at least two hours of training to supervisory employees and at least one hour of training to non-supervisory employees by January 1, 2020 and once every two years thereafter.

AB 1619 – Statute of Limitations Sexual Assault – Code of Civil Procedure § 340.16

This new law increased the statute of limitations for filing a civil action for sexual assault to 10 years after the alleged assault or 3 years after discovered or reasonably discovered injury as a result of the assault, whichever is later.

AB 2770 – Defamation – Civil Code § 47

This bill codifies California defamation case law to clarify that (1) employees who report sexual harassment to their employer are not liable for any resulting injury to the alleged harasser’s reputation, so long as the communication is based on credible evidence and without malice; (2) communications between employers and anyone with an interest in a sexual harassment complaint are not liable for resulting damages to alleged harasser’s reputation so long as communication is made without malice; and, (3) former employers are not liable for any resulting injury to a former employee’s reputation if, in response to inquiries from prospective employers, former employers indicate that they would not rehire the former employee based on a determination that the former employee engaged in sexual harassment, so long as the statement was made without malice.

AB 1976 – Lactation Accommodation – Labor Code § 1031

This bill amends existing law to require employers to make reasonable efforts to provide a permanent location, other than a toilet stall to be used for lactation, unless an employer can prove that it is an undue hardship to comply with these requirements. The location may be temporary if the following requirements are met: (1) employer is unable to provide a permanent location due to operational, financial, or space limitations; (2) the temporary location is private and free from intrusion while being used for lactation purposes; and (3) the temporary location is not used for other purposes while being used for lactation. The new law also provides that an agricultural employer may comply by allowing an employee to use the air-conditioned cab of a tractor or truck.

SB 1252 –  Copy of Payroll Records – Labor Code § 226

This bill requires that if an employee requests a copy of his or her payroll records, the employer must provide the copies within 21 days (as opposed to requiring the employer simply make the records available for the employee’s inspection).

AB 1565 – Contractor Liability – Labor Code § 218.7

This bill amends existing law making certain direct contractors liable for unpaid wages of subcontractors. The amendment provides requirements that must be met in order for a direct contractor to withhold payments to a subcontractor for “disputed sums.” In order to withhold payment, the contractor must specify in its contract with a subcontractor all items of information that will be requested of the subcontractor, such as payroll records and other information related to hours worked.

 In addition to the above summary, click the link below to read about the following bills which also relate to employment: AB 3109 (Testifying/Disclosure of Sexual Harassment); SB 954 (Mediation, Confidentiality, Disclosure); SB 826 (Gender Composition of Boards of Directors); SB 1123 (Paid Family leave Uses); AB 2012 (School and Community College Employees: Parental Leave); AB 2605 (On-Call Rest Breaks/Petroleum Industry); AB 2610 (Meal Periods- Commercial Drivers for Feed Manufacturers); AB 3082 (Sexual Harassment – In-Home Supportive Services); AB 2455 (Home Care Aid Registry); SB 1412 (Criminal History Inquiries); AB 2282 (Salary History Information); AB 2034/ SB 970 (Human Trafficking Training); AB 1654 (PAGA Relief for Unionized Construction Employers);  and SB 785 (Disclosure of Immigration Status in Open Court) http://leginfo.legislature.ca.gov/.

Also, while not a new law, employers must remember that minimum wage again has increased from $11 to $12 per hour for employers with 26 or more employees, and from $10.50 to $11 per hour for employers with 25 or less employees.

While 2018’s closure may bring about the end of trends like the flossing dance craze, unfortunately, it will not be the end of new employment laws.  New year, same California legislators working hard to impact employers.  If you have questions related to these new laws, Baker Manock & Jensen’s employment attorneys would be happy to assist. Happy New Year!

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Discussing Women’s Hormones in the Workplace is No Djoking Matter

Q:     If Novak Djokovic was your employee could you terminate him after he stated men should be paid more money than women and made comments about women’s hormones?

A:     Maybe.  But, it is an interesting question because it pits two employment law principles against one another – equal employment v. concerted activity.  As you may be aware, the men’s world number one tennis player indicated that men deserved more prize money at tournaments because they draw more fans.  He then went on to say:

As I said, I have tremendous respect for what women in global sport are doing and achieving. It’s knowing what they have to go through with their bodies, and their bodies are much different than men’s bodies. They have to go through a lot of different things that we don’t have to go through. You know, the hormones and different stuff, we don’t need to go into details. Ladies know what I am talking about.

As most people are aware, there is significant federal and state law that protects against gender discrimination and harassment.  In compliance with these laws, most employers have policies prohibiting statements that indicate one gender is superior to the other or make reference to one’s gender’s anatomy.  As such,  Djokovic’s statements, particularly the reference to bodies and hormones, would likely fly in the face of these policies and laws.

From an employment law perspective, a question arises as to whether Djokovic would be protected to complain that he (and the rest of the men) should receive more money because (in his opinion) they generate more revenue through fan demand.  Statements regarding “working conditions” are protected under California law and “concerted activity” is protected under Federal law.  “Working conditions” and “concerted activity” both have broad definitions that would certainly protect an employee’s ability to have a platform to discuss why he thinks he is entitled to more money.   It is unclear whether the employer could actually make the changes to the pay structure without violating the law, particularly in light of California’s Fair Pay Act.  Accordingly, this controversy is a good reminder to review our previous blog on California’s new Fair Pay Act that went into effect in 2016.[1]

Of course, all of this is somewhat theoretical because Djokovic is not an employee of the ATP (Associated Tennis Professionals).  That said, his comments certainly did not help his own personal brand.  What is weird, however, is that a sport’s star said something controversial[2], and that he later apologized for it.[3]

[1] https://answersforemployers.com/?s=gender

[2]  http://www.msn.com/en-ae/sport/sport-index/they-said-what-most-controversial-quotes-by-sports-stars/ss-AAgqhNo#image=26

[3] http://espn.go.com/espn/page2/story?page=philbrick/100218

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Three Super Bowl inspired questions for your halftime discussions.

This is a Super BMJ Employment Answer – Three Super Bowl inspired questions for your halftime discussions.

Q.     After the Super Bowl, can the Broncos fire Peyton Manning for being too old?  Isn’t age discrimination illegal?

A.     Generally, an individual is not in a protected class for age until they are over 40 years old.  Peyton Manning turns 40 on March 24th.  At that point, the Broncos (according to the Age Discrimination in Employment Act of 1967) could not take into account Peyton’s age when making an employment decision.  It would seem the Broncos could not choose a younger quarterback just because he is younger – it would have to be based on other performance factors. (29 U.S.C. §§ 621-634.)  Luckily for the Broncos, Peyton has not reached his golden years just yet, and short arming throws and the inability to throw spirals is not a protected class.  As such, they could probably move on…  It would be interesting, however, if he has a great Super Bowl, and he outperforms his back up in the Fall.  Then what?  Mr. Elway/Broncos, my number is on the blog site.

Q.     Is the expansion of the Rooney rule (a requirement to interview a minority candidate before hiring coaches and executives) to include a requirement to interview women, legal?  Should it be extended for LBGT individuals?  What about players and certain positions on field?

A.     It is illegal for an employer to discriminate against a job applicant for being a member of protected class. (42 U.S.C. § 2000 et seq.)  It is also illegal to base hiring decisions on stereotypes and assumptions about a person’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.  The interesting component of the Rooney rule (and its proposed expansion) is that it does not purport to exclude any protected class, but to simply ensure that certain protected classes are always part of the interview pool.[1]  As such, it is likely lawful.  That said, when race or other protected classes are involved it is always tricky.  One could argue that, by specifically including one particular protected class (aka women), this could potentially be to the patent exclusion of other protected classes (aka discrimination).  An interesting case could be made if an organization decided to only interview three people and somebody was excluded from the interview process because they didn’t belong to the protected class that the NFL is trying to promote through this new rule.

On the field, physical size, skill and strength generally determine who gets what position.  This would seem to make it difficult to always include older Americans or women for many positions on the football field. However, it could be argued, that certain stereotypes have persisted in the NFL (even though some of them have been regularly broken as of late) such as a Caucasian quarterbacks/kickers or African American wide receivers.  So far, there are no lawsuits that I am aware of, but if somebody felt they weren’t given a chance because of race or gender despite having the requisite skill set for a certain position, a lawsuit is certainly plausible.

Q.     Cam Newton inferred that some people don’t like him because of his race, what is the NFL’s requirement to protect its players from third party harassment such as from fans or sports talk radio?

A.     Employers are generally responsible for ensuring a harassment-free workplace for employees, regardless if the alleged harasser is a co-worker, manager, independent contractor, customer… or fan.  In this case, Newton has remarked that being a black quarterback “may scare a lot of people.”[2]  If those people are fans, and they shout epithets, what could the NFL do?  Or, if radio show hosts pick on him for being African American.  For starters, they are required to take reasonable remedial measures.  It would be easy to eject the offending fans from the stadium and to issue social media responses asserting that they do not tolerate such behavior.  They could also pull endorsements of radio shows/stations.

[1] http://www.huffingtonpost.com/entry/the-nfl-will-implement-a-rooney-rule-for-women_us_56b3a045e4b08069c7a67110

[2] http://www.usatoday.com/story/sports/nfl/panthers/2016/01/27/cam-newton-carolina-super-bowl-50/79414764/

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

 

What can you tell me about California’s new Fair Pay Act? Will Gwyneth Paltrow finally be paid as much as Robert Downey, Jr.?

Q:     Well, it’s the time of year when we learn which bills become laws and make it even harder to be an employer in California. I have heard quite a bit about this new Fair Pay Act regarding gender pay equality. What does “substantially similar” mean, and what impact will the newly signed Fair Pay Act have on employers?

A:     Well, we are about to find out…. We have famously heard from actress Gwyneth Paltrow about the “painful” wage gap,[1] and it seems her plight has not fallen on deaf ears. Earlier this week, the Governor signed into law what has been deemed the country’s most stringent law regulating gender-based wage disparities. California’s new Fair Pay Act (“the Act”) now requires that an employee be paid equal to any counterpart of the opposite sex who performs “substantially similar work,” rather than just equal work. This requirement applies even when the employees work at different sites or have different titles.

While the aim of the law is certainly commendable, the standard will be likely difficult to apply. This makes sense because the Act does not define “substantially similar work.” As a result, its meaning and potential impact remains unclear. What we do know is that, in theory, the Act will make it easier for employees to sue their employers if they feel they are undercompensated. It will also be more difficult for employers to prove that wage gaps are not discriminatory. The Act shifts the burden from employees to employer to demonstrate that the wage differential is determined by a system based on seniority, merit, education, experience or other measures of quality. Further, even if the employer succeeds in demonstrating a non-discriminatory reason, the aggrieved employee can argue that business could have been run differently to avoid said pay discrepancy.

Geoffrey DeBoskey, head of Sidley Austin’s Los Angeles labor and employment group, implied that the Act, while drafted with pure intentions, presents a risk of drawn out and costly litigation for employers, and ultimately, leaves it to “judges and juries” to “second-guess business decisions.”[2] In contrast, Cliff Palefsky, a San Francisco plaintiffs’ employment attorney with McGuinn, Hillsman & Palefsky, does not expect the Act to cause substantial increase in litigation. This is because, Palefsky said, most “gender-bias cases involve discriminatory promotion practices, rather than unfair pay.”

Whether the Act will cause new discrimination victims to flood the courthouse, or simply a trickle, is yet to be determined. Unfortunately, until “substantially similar” is clarified by the Legislature or interpreted by the Court, eager Californians will be left to wonder, “[w]ill Jennifer Lawrence get paid like Bradley Cooper?” [3]

In unrelated news, I am currently lobbying Sacramento for the Attorney’s Pay Equalization With Hollywood Movie Actress Gwyneth Paltrow Act – commonly referred to by its acronym as the APEWHMAGPA.

[1] http://www.harpersbazaar.com/celebrity/latest/news/a12496/gwenyth-paltrow-pay-gap/

[2] Marisa Kendall. “Employment Lawyers Brace for Fair Pay Act.” The Recorder [San Francisco] 6 Oct. 2015. Web.

[3] Daniel Miller, Meg James, and Amy Kaufman. “With the New Fair Pay Act, Will Jennifer Lawrence Get Paid as Much as Bradley Cooper?” Los Angeles Times. Los Angeles Times, 08 Oct. 2015. Web.

I see the Kentucky clerk was arrested today for refusing to issue a same-sex marriage license. How do I respond if my employees refuse to follow laws based on their religious beliefs??

Q:     How do anti-discrimination laws that list sexual orientation also protect those with firmly held religious beliefs opposing such things as same-sex marriage?

A:    This week much has been made about a county clerk in Kentucky who is refusing to issue marriage certificates to same-sex couples.  She bases her refusal on her religious beliefs.  This is a reemerging theme across the United States, whether it be pizza parlors, bakeries, or government agencies wherein an individual refuses to provide a service that would otherwise validate, condone, or service an event or act (such as a gay marriage) that they feel is wrong.  This seemingly pits freedom of religion (and religious anti-discrimination laws) against equal protection (and sex anti-discrimination laws).  This blog post merely touches on the issue from an employment standpoint.  Ultimately, this is a complex issue that will certainly continue to play out in court rooms and legislatures for years to come.

As a threshold matter, sexual orientation is not specifically noted as a protected class in the federal anti-discrimination law (e.g. Title VII, The Civil Rights Act of 1964 section 7, 42 U.S.C. 2000e et seq.). However, the Equal Employment Opportunity Commission (“EEOC”) takes the position that “sex,” which is listed as a protected class in Title VII, encompasses sexual orientation.  Religion is specifically listed.  In California, sexual orientation, along with sex, gender identity, and gender expression are all specifically denoted in the state’s anti-discrimination laws (e.g. California Fair Employment and Housing Act, Government Code section 12900 et. seq (“FEHA”)).  Also protected in California is an employee’s ability to engage in political activity, which, in recent years and months, has involved participation in discussions surrounding gay marriage and faith-based business refusals.  (See California Labor Code section 1101 et. seq.)  This reemerging conflict is not surprising.  It is not hard to predict that some religious employees may not want to contribute to a gay marriage ceremony, particularly after supporting recent legislative efforts to keep the traditional definition of marriage.  Likewise, it is not hard to predict that those on the other side of the issue may also discriminate against those who identify and practice a religion that maintains social beliefs they find repressive.

So what should an employer do if, instead of the elected county clerk, it was an employee of the county clerk who refused to issue the marriage license?  The EEOC notes that an employer must reasonably accommodate an applicant’s or employee’s sincerely held religious beliefs or practices if an accommodation will not impose more than a de minimis cost or burden on business operations.  The EEOC also provides the following guidance as to what a proper accommodation might be.

“When an employee’s religious belief or practice conflicts with a particular task, appropriate accommodations may include relieving the employee of the task or transferring the employee to a different position or location that eliminates the conflict.  Whether such accommodations pose an undue hardship on the employer will depend on factors such as the nature or importance of the duty at issue, the availability of others to perform the function, the availability of other positions, and the applicability of a collective bargaining agreement.”

The above seemingly suggests that the right answer would be to simply move the refusing employee to a position that does not require him/her to issue same-sex marriage certificates, so long as the move does not create an undue hardship. That said, doing so, could seemingly violate the same protections for those employees who might be gay.  That makes sense because the employer could be seen as condoning discrimination and failing to eliminate the potential for future harassment by knowingly keeping and accommodating employees that have outwardly expressed an allegedly discriminatory view point.  This would be particularly true for supervisory employees for whom an employer is held strictly liable.

While this argument currently plays out in the context of sexual orientation, through analogy it is not difficult to imagine an employee with certain religious beliefs refusing to provide service to a member of another religion, race, opposite gender, etc., or simply refusing to supervise gay employees.  Put in those contexts, it is difficult to see a court requiring (or even permitting) an employer from accommodating even a sincerely held religious belief that results in discrimination of a protected class of individuals.

This is not the first time in our history these types of issues have come to the national forefront.  In the wake of the Supreme Court case of Loving v. Virginia, 388, U.S. 1 (1967), there were those who refused to marry mixed-race couples – some claiming religion.  Indeed, this type of refusal occurred as late as 2009 when a Louisiana Justice of the Peace refused to marry a mixed race couple.  However, what makes recent events even more complicated, is that unlike the time after Loving, there will likely be allegations of discrimination on both sides of the issue.  In other words, in today’s climate, it is likely we will also see cases brought by religious employees who claim they are being discriminated against by those who feel their views are out of step, as well as by gay employees/customers.

In the end, as noted above, forecasting is difficult where two protected classes have the potential for conflict.  It is an issue that will need to be continually monitored.   Employers facing issues of accommodating an employee’s refusal to service a specific group of individuals will need to very carefully consider the potential risks associated with taking such action before deciding to grant or deny the accommodation.

Can an employee be fired for lying about his or her race? Is racial identity a legally recognized protected class? Should an employer treat all lies the same?

Q.     Over the course of the last two weeks there have been numerous stories written about Rachel Dolezal, the NAACP leader who claims that she is African American while her family claims that she is Caucasian.  The reasons why this apparent dispute is a national story are, at least, twofold:  first, Ms. Dolezal is an activist and (until recently) the head of her local NAACP; second, Ms. Dolezal, in response to the criticism, has stated that she “identifies” as black.  The first issue seems to suggest that some feel an effective advocate for African American issues must be African American – or at least honest about his or her experience and background.  As for the second issue, a person identifying as something other than that person’s physical biology has been an increasingly popular topic in recent national dialogue, particularly in the context of transgender issues. This new paradigm of “identity” is likely to be credited, in part, to former gold medalist and reality T.V. star Bruce/Caitlyn Jenner, who recently made it public that she identifies as female.  While these headlines are grabbing national attention, for employers, these conversations may pose real issues beyond the pages of news websites and talk radio.  Can an employee be fired for lying about his or her race?  Is racial identity a legally recognized protected class?

A.     Although the ideas of racial and gender identity are fairly new to many, and the law generally takes some time to catch up to these types of social issues, the existing laws do provide some guidance on how to approach workplace issues regarding “identity.”  Based on the plain reading of these existing statutes, the answer to both of the above questions is likely – no.

Can an employee be fired for lying about his or her race? Both Title VII (Federal – Civil Rights Act) and FEHA (State – Fair Employment and Housing Act) generally prohibit employment decisions based on any protected class, which includes race and color.  Both Federal and State discrimination laws also protect those that are perceived to fall within a protected category or are associated with a protected category.  Being a liar is certainly not a protected class and an employer could surely take an adverse employment action based on lies about job qualifications. Still, it seems unlikely that an employer could make an employment decision based on an employee’s misrepresentation where the subject matter of the misrepresentation should not have been a consideration in the first place (such as race).  Therefore, it is likely that an employee could not be fired because he or she lied about his or her race.

Is racial identity a legally protected class? California has a fairly long list of protected classes.  Gender identity was specifically added to the list in 2014, but, to date, racial identity has not been.  That said, conceptually it is difficult to separate “racial identity” from “race,” which is already protected.  If somebody’s racial identity is different from that person’s actual race, then it would seem that any employment decision based on gender identity would either be based on the race with which the employee identifies or the employee’s biological race – which in either event would be based on race, and thus, seemingly unlawful. Accordingly, while racial identity is not a protected class, it is likely of no significance because ultimately it would boil down to just race.

In any event, racial identity is a new term that will need to be monitored.  As noted, the existing laws protect against discrimination based on race – but if somebody can simply choose their race in order to manufacturer a discrimination lawsuit, there could be a profound and unintended impact on the nature of all race and discrimination lawsuits.

Finally, these types of news stories (e.g. Dolezal and Jenner) may have another unintended effect in the workplace. Some employees may have strong feelings about race and gender identity and openly discuss them.  As such, it is conceivable that employees that disagree and/or are offended with another employee’s strong feelings about race or gender could result in an employment lawsuit for a hostile work environment.

Undoubtedly, from a legal perspective these issues are going to be nuanced, fact specific, and legally complicated.  As such, employers will want to stay advised of legal developments and take any workplace issue and/or conversation regarding race, sex, or “identity” seriously.

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

I want to hire a gay minority woman that is disabled, over 40 years old and a veteran. When is discrimination/preference legal?

Q.     This past weekend I was very much moved by Memorial Day and all of the sacrifices of our veterans, and particularly those that may have been injured in combat.  I also consider myself very progressive on social issues and would like to show my support for feminism, minorities, and the LGBT community.  I am also a member of AARP and would like to hire one of my own. Accordingly, I plan on putting an ad on the internet seeking an employee for my company that fits those characteristics.  However, before I hit “submit”, I thought I would check to see if it is legal.

A.     Good you asked – and it is an interesting question: when is discrimination legal?  Is it the same as preference?  And, would it matter if the ad was for a straight, male, able-bodied, Caucasian, young, non-veteran?

As a threshold matter, not all discrimination is illegal.  Indeed, in its truest sense, the hiring process is nothing more than a form of preference and discrimination – ultimately, an employer prefers one candidate and discriminates against another.  Generally, nobody questions whether it is illegal to discriminate based on a candidate’s education, experience, or answers to lawful interview questions.  That said, discrimination against a candidate or employee based on the candidate’s or employee’s protected class is illegal.  What is interesting about your ad is that three of the categories are likely illegal forms of discrimination while three are likely legal forms of discrimination.  In California, The Fair Employment and Housing Act enumerates the following protected classes:

  • Age (40 and over)
  • Ancestry
  • Color
  • Religious Creed (including religious dress and grooming practices)
  • Denial of Family and Medical Care Leave
  • Disability (mental and physical) including HIV and AIDS
  • Marital Status
  • Medical Condition (cancer and genetic characteristics)
  • Genetic Information
  • Military and Veteran Status
  • National Origin (including language use restrictions)
  • Race
  • Sex (which includes pregnancy, childbirth, breastfeeding and medical conditions related to pregnancy, childbirth or breastfeeding)
  • Gender, Gender Identity, and Gender Expression
  • Sexual Orientation

To conduct the analysis for your question, it is helpful to turn the ad around (as noted above) – would it matter if the ad read that you were seeking a straight, male, able-bodied, Caucasian, under 40 year old,non-veteran?

Being straight falls under sexual orientation. As such, a candidate’s sexual orientation (gay or straight) must not be considered in your employment advertisement or hiring decision.  Being male is a gender (obviously), therefore, neither males or females may be favored.  Race, color, national origin and ancestry are all listed, so it is illegal to favor any person based on those characteristics.

On the other hand, being a veteran, over 40 years old, and disabled are protected, but being a non-veteran / under the age of 40 / and able-bodied are not.   As such, it is likely legal to favor those candidates that are veterans[1], are over 40, or have a disability.

While the above is true, and including a preference in the ad for minorities, gays and females is certainly problematic and illegal, the issue may be slightly more nuanced than it may appear.  The Courts (including the United States Supreme Court) have grappled with the idea of whether diversity, in and of itself, is a bona fide and lawful goal of businesses or organization.  While most people think diversity is positive and would agree “sameness” should be discouraged, the problem (and irony) is figuring out a way to encourage diversity without offending the very rules established to protect against discrimination in the first place. That said, it is absolutely clear that targeting a category of individuals at the exclusion of all others, based on those individuals’ protected class(es), would be improper both under California and Federal laws.

[1] In fact, California Assembly Bill 1383, introduced on February 27, 2015, would authorize private employers to establish and maintain a written veterans’ preference employment policy that may be used to hire or retain a veteran over another qualified applicant or employee. Moreover, this Bill specifically provides that such a policy will not be deemed to violate any local or state equal opportunity law or regulation.

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.