Cal-Peculiarities: How California Employment Law is Different 2022 Edition

174 | 2022 Cal-Peculiarities ©2022 Seyfarth Shaw LLP  www.seyfarth.com the employer. The pay scale need not be provided to internal applicants seeking a promotion or lateral move. Second , “pay scale” means the salary or hourly wage range and does not include bonuses or equity ranges. Third , a “reasonable request” is made after the applicant has completed an initial interview; the pay scale need not be provided until the applicant has completed the initial interview and requested the pay scal e. 232 Further clarifications. Legislation effective in 2019 provided as follows. First, prior salary cannot be used to justify a wage differential, whether on its own or in combination with a lawful factor. Second, prior salary is a permissible factor to consider in pay decisions for current employees, such as in awarding a bonus, so long as any wage differential from the decision is justified by a specified permissible factor, such as a merit system. Third, the ban on asking about prior salary does not forbid employers to ask applicants about “salary expectations” for the position sought . 233 Annual pay reports. In 2020 the Legislature created an onerous filing requirement for California employers that requires them to report potentially incomplete and misleading pay data that the companies’ adversaries could use to falsely claim discriminatory wage disparities. The legislation follows the lead of an Obama Administration initiative to require certain gender, race, and ethnicity data on the federal annual Employer Information Report (EEO-1)—an initiative that the Trump Administration halted in 2017. California private employers with 100 or more employees that must file the federal report must also submit annual pay data reports to the DFEH that state the number of employees by race, ethnicity, and sex in the following categories: all levels of officials and managers, professionals, technicians, sales workers, administrative support workers, craft workers, operatives, laborers and helpers, and service worker s. 234 The pay data report must include employees who work in, live in, or report to a location in California. The reported earnings should be determined utilizing W-2 Box 5 wages, and hours worked must include paid time off, such as vacation, paid sick time, and paid holidays. 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 . 235 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. ” 236 “ Gender expression” means “gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth. ” 237 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. ” 238