This is the third article in a series outlining new employment laws for 2018. Today we are looking at discrimination, harassment and retaliation protections. It seems as though a day cannot go by without another case of sexual harassment in the news. Make sure your business isn’t making those kinds of headlines.
Several new laws expand employee protections for 2018. Many of these laws focus on gender equality and gender identity/gender expression protections.
Harassment Prevention Training: Gender Identity/Gender Expression, Sexual Orientation
California employers with 50 or more employees must provide supervisors with two hours of sexual harassment prevention training every two years.
Under SB 396, covered employers will have to make sure that any mandatory training course they use also discusses harassment based on gender identity, gender expression and sexual orientation. The training content must include practical examples intended to address these types of harassment.
SB 396 also requires employers to display a poster on transgender rights that the Department of Fair Employment and Housing will develop.
Harassment Prevention Training: Farm Labor Contractors
SB 295 affects the sexual harassment prevention training that farm labor contractors must provide in order to receive a farm labor contractor's license. Contractors must now provide training in the language understood by the employee (or interpret into that language). Contractors applying for license renewal also must provide the Labor Commissioner with a list of all harassment prevention training materials and resources used and the total number of individuals trained.
Failure to follow the farm labor contractor training requirements will now be a Labor Code violation; a penalty of $100 for each violation may be assessed by the Labor Commissioner.
Gender identification: Female, Male or Nonbinary
With the signing of SB 179, California became the first state in the nation to allow residents to choose from three equally recognized gender options — female, male or nonbinary — on state-issued identification cards, birth certificates and driver’s licenses. (Oregon recognizes the nonbinary gender marker solely on driver’s licenses.)
For changes to birth certificates, the law is effective on September 1, 2018. For changes to driver’s licenses, the law is effective January 1, 2019.
The bill also makes it easier for individuals to change their gender on legal documents. Individuals will no longer have to show that they have undergone “clinically appropriate treatment.” Instead, an individual can make the legal gender change by attesting, under penalty of perjury, that the request is to conform the person’s legal gender to the person’s gender identity and not for a fraudulent purpose. This portion of the bill is effective September 1, 2018.
Employment Discrimination: Gender Neutral Language
AB 1556 revises California’s Fair Employment and Housing Act (FEHA) by deleting gender-specific personal pronouns in California’s anti-discrimination, anti-harassment, pregnancy disability and family/medical leave laws by changing “he” or “she,” for example, to “the person” or “the employee.”
Also remember that FEHA transgender regulations from earlier this year require employers to honor an employee’s request to be identified by a preferred gender, name or pronoun, including gender-neutral pronouns.
Fair Pay Act Expansion
AB 46 extends California’s Fair Pay Act — which prohibits wage discrimination on the basis of gender, race and ethnicity — to cover public employers; existing law only covers private employers. While public employers will now be covered, the Labor Code provision that makes willful violation of the Fair Pay Act a misdemeanor only applies to a private employer, not a public employer.
Data Collection: Sexual Orientation
AB 677 requires various state departments — including the Department of Fair Employment and Housing, the Department of Industrial Relations, EDD, and the Labor and Workforce Development Agency — to collect voluntary, self-identified information pertaining to sexual orientation and gender identity in the regular course of collecting other types of demographic data. These labor agencies must comply as early as possible, but no later than July 1, 2019. State entities may also collect the information from a third-party, including a private employer, that already provides aggregated data to a state department.
LGBT Rights for Long-Term Care Facility Residents
SB 219 enacts the Lesbian, Gay, Bisexual, and Transgender (LGBT) Long-Term Care Facility Resident’s Bill of Rights, strengthening anti-discrimination protections for LGBT individuals living in long-term care facilities. Under the bill, it is unlawful for a facility or facility staff to take certain actions because of a person’s actual or perceived sexual orientation, gender identity, gender expression or HIV status, such as:
Certain California businesses are required by law to post a notice containing information about human trafficking and slavery. AB 260 extends the list of covered businesses that must post the notice to include hotels, motels and bed and breakfast inns, as defined.
And SB 225 requires that the human trafficking notice include not only the number individuals can call for services and support, but also the new number for those who wish to send text messages.
SB 225 makes other revisions to the model notice, which the California Department of Justice will complete. Businesses will not be required to post the updated model notice until on or after January 1, 2019. Monetary penalties for not complying with the notice requirement range from $500 for the first offense to $1,000 for each subsequent offense.
Anti-Discrimination Protections for Veterans
AB 1710 expands the current protections for members of the armed services by prohibiting discrimination in all “terms, conditions, or privileges” of employment. This legislation conforms state law to the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) by protecting servicemembers from hostile work environments in their civilian jobs.
Health Facilities: Whistleblower Protections
Existing law makes it illegal to discriminate or retaliate against an employee who raises a concern about conditions at a health facility. AB 1102 increases the maximum fine for a willful violation of these provisions from $20,000 to $75,000.
As always, employers with questions about new and existing employment laws should seek the advice of legal counsel. The Oxnard Chamber strives to keep its members informed about new laws that could affect their business operations.