At its meeting on July 17, 2017, the Fair Employment and Housing Council (FEHC) addressed a conflict between its regulations and OSHA’s regulations, regarding gender-neutral restroom facilities.

AB 1732, enacted as Health and Safety Code section 118600, which applies to single-user toilet facilities.  Section 118600 defines single-user toilet facilities as those that have only one “water closet” and (zero or) one urinal.  All such single-user toilet facilities must be re-designated as “gender neutral” under this new law.  OSHA’s regulations, under title 8 section 1526 (construction jobsites), section 3364 (general industry), section 3457 (agricultural operations), and section 5192 (hazardous waste operations and emergency response) conflict with this rule, to the extent that they require employers to provide a certain number of separate toilet facilities for males and females based on the numbers of employees of each sex.

The related DFEH Regulation, section 11034(e)(2)(B), currently reads “Employers and other covered entities with single-occupancy facilities under their control shall use gender-neutral signage for those facilities such as “Restroom” “Unisex” “gender Neutral” “All Gender Restroom,” etc.”  This is consistent with Health and Safety Code section 118600. 

OSHA has announced, on its website here <https://www.dir.ca.gov/dosh/toilet-facilities-FAQ.html> that it will enforce its regulations in a manner to make AB1732 consistent with OSHA regulations for flush toilets: “Health and Safety Code section 118600 takes precedence over the requirements of Title 8 sections 1526, 3364, 3457, and 5192 in cases where employers provide single-user toilet facilities with flush toilets for their employees. In those situations, Cal/OSHA still enforces the total numbers of toilet facilities required for males and females combined, as well as the individual numbers required for males and females separately, as provided in Title 8 sections 1526, 3364, 3457, and 5192, but no longer enforces the requirement that a toilet facility with a flush toilet be designated as single-gender if it is single-user.”

In that same FAQ, however, OSHA states that “toilet facilities that are multiple-user or that contain other than a flush toilet (e.g., chemical toilets, recirculating toilets, combustion toilets, biological toilets, and sanitary privies) are not covered by section 118600 and must still be provided separately for males and females.” Therefore, OSHA will enforce its regulations for non-flush toilets – like a port-a-potty – for those industries.

The FEHC proposed an amendment to FEHA regulation, section 11034(e)(2)(B), on an emergency basis, to eliminate the conflict with OSHA regulations with respect to privies, chemical toilets, and other “non-water carriage disposal facilities” (toilets that do not flush with water).  Apparently due to very high percentage of men in these industries, there are concerns about health and safety if such portable toilets out in the field were required to be designated as gender-neutral.

Section 11034(e)(2)(B) currently reads:

B.  Employers and other covered entities with single-occupancy facilities under their control shall use gender-neutral signage for those facilities such as “Restroom” “Unisex” “gender Neutral” “All Gender Restroom,” etc.

To address this inconsistency with OSHA’s regs, the council considered, and voted to submit an emergency rulemaking proposal to the Office of Administrative Law for an emergency rulemaking to modify 11034(e)(2)(B).

The proposed new language that will be submitted to the OAL is underlined:

11034(e)(2)(B) Employers and other covered entities with single-occupancy facilities under their control shall use gender-neutral signage for those facilities such as “Restroom” “Unisex” “gender Neutral” “All Gender Restroom,” etc.  This subsection does not apply to nonwater carriage disposal facilities in those work places covered by California Code of Regulations, title 8, sections 1526 (construction), 3364 (general industry), 3457 (agricultural operations), and 5192 (hazardous waste operations and emergency response) which require employers to provide separate toilet facilities for males and females based on the numbers of employees of each sex. However, all other subsections of this section apply to such employers.

The intent of the last sentence is to make clear that persons may still use the facility corresponding to the employee’s gender identity or expression (subsection (e)(2)(A)), regardless of the signage on the door.

The Council voted that the department should submit this proposed change to the OAL for emergency rulemaking authorization immediately.

Once submitted, the proposed rule will undergo a 5-day public comment and OAL review. If granted by the OAL, the emergency rule will become effective upon filing with the Secretary of State and is effective for 180 days.  This gives the agency time to make the emergency regulation permanent through its regular rulemaking process.

Introduction

Imagine this scenario – you have hired a catering company to cater an event for you. The company performs its obligations, providing both the food and catering staff to ensure your attendees are well fed and taken care of. Happy at the conclusion of the event, you pay the company in full, and provide extra payment to the catering company in the form of a tip to demonstrate your appreciation. Who owns that tip – the catering company hired to provide the services, or the catering staff who worked the event?

On June 30, 2017, in Marlow v. The New Food Guy, Inc. d/b/a Relish Catering, the U.S. Court of Appeals for the Tenth Circuit determined that the Fair Labor Standards Act (“FLSA”) does not require an employer to share tips earned by an employee with that employee, as long as the employee is paid more than minimum wage.

To read the full article, visit the HRUSA blog at http://blog.hrusa.com/blog/employers-may-not-have-to-share-tips-with-employees/.

The new regulations that expand existing protections under California’s Fair Employment and Housing Act (FEHA) for transgender individuals and others go into effect July 1, 2017.  As California employers know, FEHA prohibits harassment and discrimination against individuals on the basis of many protected classes, including gender, gender identity, and gender expression.  Below is a brief summary of the highlights of the new regulations.

  • The regulations clearly define and distinguish between “transgender,” “gender expression,” and “gender identity.”  They are not the same.
    • “Transgender” refers to a person whose gender identity differs from the person’s sex assigned at birth.  The person may or may not have a gender expression that is different from the social expectations of the sex assigned at birth.  Also, a transgender individual may or may not identify as “transsexual.”
    • “Gender expression” refers to a person’s gender-related appearance or behavior, or the perception of such appearance or behavior, whether or not stereotypically associated with the person’s sex assigned at birth.
    • “Gender identity” refers to each person’s internal understanding of their gender, or the perception of a person’s gender identity, which may include male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth, or transgender.Beth-West-15_web
  • The regulations explain the process of “transitioning” which does not have to, but may include hormone therapy, surgeries, or other medical procedures.
  • The regulations state it is unlawful to deny employment to an individual based wholly or in part on the individual’s sex, gender, gender identity, or gender expression.  It is also unlawful to discriminate against an individual who is transitioning, has transitioned, or is perceived to be transitioning.
  • The regulations include prohibitions against employers seeking proof of an individual’s sex, gender, or gender identity or expression.   However, for recordkeeping purposes, an employer may request an applicant to provide the information solely on a voluntary basis (e.g. when collecting data for EEO reporting purposes).  Also, an employer is permitted to use an employee’s gender or legal name as indicated in a government-issued identification document only if it is necessary to meet a legally mandated obligation.  Further, nothing precludes an employer and employee from communicating about the employee’s sex, gender, gender identity, or gender expression when the employee initiates communication with the employer regarding the employee’s working conditions.
  • The regulations explain that employers cannot use a Bona Fide Occupational Qualification (BFOQ) defense to justify any different treatment (discrimination) against an individual merely because the individual is a transgender or gender non-conforming individual.
  • The regulations provide that equal rest periods must be provided to employees without regard to sex, and that equal, safe and adequate facilities must be provided to employees without regard to sex.
  • The regulations provide that employers must permit employees to use facilities that correspond to the employee’s gender identity or gender expression, regardless of the employee’s assigned sex at birth and without having to show proof of any medical treatment or other identity, to use a particular facility.  However, employers with single-occupancy facilities [e.g. restrooms] under their control shall use gender-neutral signage for those facilities.  Also, to respect the privacy of all employees, employers shall provide feasible alternatives such as locking toilet stalls, staggered schedules for showering, and shower curtains to ensure privacy.
  • The regulations prohibit an employer from imposing any physical appearance, grooming or dress standard which is inconsistent with an individual’s gender identity or gender expression, unless the employer can establish a business necessity under the regulations.
  • The regulations provide that if an employee requests to be identified with a preferred gender, name, and/or pronoun, including gender-neutral pronouns, an employer who fails to abide by the employee’s stated preference may be liable under FEHA, except in the case where an employer is permitted to use an employee’s gender or legal name when necessary to meet a legally-mandated obligation.

What Should Employers Do?  The overarching message in the workplace should be that a person’s sexual identity and sexual expression should be respected and that everyone should comply with company policies and applicable law.  Employers should review and update their policies if necessary to comply with the new regulations.  They should also train their managers and supervisors on the new regulations to ensure that they are aware of them and act accordingly.  Regardless of their political or moral viewpoint on the issue, the regulations are law and an employer (through its managing agents) must comply.  Remember that the attorneys in Weintraub Tobin’s Labor & Employment Department are always available to assist in both policy review and supervisor and management training.

For a copy of the text of the regulations go to:  https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2017/06/FinalTextRegTransgenderIdExpression.pdf

It stands to reason that employers may not want employees recording conversations in the workplace.  Recording conversations could discourage the free flow of open ideas.  The recordings could also contain confidential or sensitive information that the employer does not want floating around the digital universe.  In some states, recording workplace conversations may even be illegal if not all parties consent to it.  Mindful of these concerns, employers may wish to enact policies precluding video or audio recording at work.  According to the Second Circuit, however, employers who do so risk violating the National Labor Relations Act (“NLRA”) if their policies are overbroad.  In a June 1, 2017 summary order, the court upheld a National Labor Relations Board’s Order finding that Whole Foods Market, Inc.’s policy did just that.

To read the full article, visit the HRUSA blog at http://blog.hrusa.com/blog/no-recording-policy-violates-the-nlra/.

On May 30, 2017, the Mayor of New York City (“NYC”) signed into law five bills related to workplace reform in the retail and fast food industries. These laws are set to take effect on November 26, 2017.

New Laws Applicable to Retail Industry in NYC

Intro 1387 (On-Call Scheduling), bans the practice of on-call scheduling for retail employees in NYC. The law applies only to retail employers with twenty or more employees at one or more stores within NYC. Under this new law, an employer will be prohibited from (1) scheduling a retail employee for an on-call shift; (2) cancelling a work shift with fewer than 72 hours’ notice; (3) requiring a retail employee to work with fewer than 72 hours’ notice, unless the employee consents to working in writing; and (4) requiring a retail employee to contact an employer to confirm whether the employee should report for his/her scheduled shift in the 72 hours before the start of the shift. However, a retail employer is permitted to make schedule changes or cancel shifts within the 72 hour window if it is to give an employee time off or to allow an employee to voluntarily trade shifts with another employee or if the employer’s operations cannot begin or continue.

Read the New Laws Applicable to the Fast Food Industry in NYC here: http://blog.hrusa.com/blog/new-laws-affecting-new-york-city-retail-and-fast-food-workers/