Cal-Peculiarities: How California Employment Law is Different - 2024 Edition

176 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP  www.seyfarth.com worker” and added a requirement that employers identify payroll employees and labor contractor employees working remotely.252 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 were required to 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);253  All employers, regardless of size, must provide a pay scale for a current employee’s position at the employee’s request.254 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.255 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.256 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.”257 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.258 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.259 6.9 Special Rules for Gender, Gender Identity, and Gender Expression California’s prohibition against sex discrimination includes discrimination on the basis of “gender,” a term that means not only biological sex but also “gender identity and gender expression.”260 “Gender expression” means “gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.”261 The statutory language aims to protect persons whose vocal pitch, facial hair, personality, hairstyle, mannerisms, clothing, or demeanor is associated with a particular gender. For example, the statute would forbid employment discrimination on the basis that a male employee appeared effeminate or on the basis that a female employee appeared masculine. Notwithstanding this prohibition, employers may continue to impose “reasonable workplace appearance, grooming, and dress standards not precluded by other provisions of state or federal law, provided that an employer shall allow an employee to appear or dress consistently with the employee’s gender identity or gender expression.”262 Regulations provide additional protections for gender identity and transgender employees in the workplace. The regulations add a definition of “transitioning,”263 and prohibited discrimination against individuals who are transitioning, have transitioned, or are perceived to be transitioning.264 The regulations also require employers to

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