©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 177 SB 1162 made the following changes to requirements regarding employer pay data reports under Government Code section 12999: Within each job category, employers must report the median and mean hourly rate by each combination of race, ethnicity, and sex.245 Reports are now due annually on the second Wednesday of May. The first report was due on May 10, 2023, based upon calendar year 2022 pay data.246Employers with multiple establishments are no longer required to submit a consolidated report. Instead, these employers must continue to submit a report for each establishment.247 Employers with 100 or more employees hired through labor contractors have a new obligation to produce data on pay, hours worked, race/ethnicity, and gender information in a separate report.248 On January 19, 2023, California’s Civil Rights Department (CRD) released Frequently Asked Questions that introduced new definitions, clarified prior reporting requirements, and answered questions concerning the contractor pay data reporting.249 Additional Pay Scale Disclosure Requirements. SB 1162 in part made significant changes to California’s pay scale disclosure law under Labor Code section 432.3. As of January 1, 2023, employers must comply with the below requirements: Employers with more than 15 employees must include a pay scale in all job postings (and provide that information to third parties who post them);250 All employers, regardless of size, must provide a pay scale for a current employee’s position at the employee’s request.251 Labor Code section 432.3 defines pay scale as the salary or hourly wage range that the employer reasonably expects to pay for the position.252 Pay scales must be included in job postings for both remote and in person roles. The California Labor Commissioner’s office confirmed in its Frequently Asked Questions that bonuses, tips, and other benefits are not required to be included in the pay scale.253 While employers may voluntarily provide information on “compensation or tangible benefits provided in addition to a salary or hourly wage,” the Labor Commissioner reminds employers that “other forms of compensation may be considered for equal pay purposes.”254 While many jurisdictions allow employers to provide a link to a salary range in electronic postings, California requires the employer to include pay scales directly in the job posting.255 6.8 Pant Suits In America generally, grooming and dress codes that differentiate between men and women are not unlawful as sex discrimination, as these employer requirements do not affect employment opportunities. In California it’s different. FEHA makes it an unlawful employment practice for an employer to refuse to permit an employee to wear pants on account of the employee’s gender. Thus, California employers can ban pants for all employees, but must not ban pants for men only or for women only. Exceptions exist for requiring employees “in a particular occupation to wear a uniform” and for requiring an employee to wear a costume while portraying a specific character or playing a dramatic role.256
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