SB 1162 increases employer requirements for disclosing pay scales in job postings and increases requirements for both applicants and employees. Additionally, the bill increases the types of pay data required to be reported to the state. The following are key requirements employers should note. 

Pay Transparency Requirements. For the past few years, employers have been required to provide a position’s pay scale upon request by a California job applicant. The current bill adds new disclosure requirements for applicants as well as expands the disclosure requirements to current employees.   

• “Pay scale” has been clarified to mean the “salary or hourly wage range that the employer reasonably expects to pay for the position.” 
• The bill removes the requirement that applicants must make the pay scale request after an initial interview. Now, applicants will be able to make the request at any point in the recruiting process. 
• Employers with 15 or more employees must include a position’s pay scale in all job postings. Employers must provide the pay scale to third-party job posters who are also required to include the pay scale in job postings. 

• Upon request, employers must provide existing employees with their position’s pay scale. 
• Employers must maintain records of job title and wage rate history for all employees for three years following termination. Failure to maintain required records will result in a rebuttable presumption in favor of the employee’s claim. 

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The Office of Federal Contract Compliance Programs (OFCCP) revised its requirement that federal contractors disclose internal pay equity audits. On March 15, 2022, the OFCCP issued a directive clarifying a regulatory requirement that qualified contractors must implement an equal employment opportunity and affirmative action program which includes an evaluation of whether and where gender, race, or ethnicity-based pay disparities exist. The directive also stated the OFCCP could access internal pay equity audits including those protected by attorney-client or work product privilege during a compliance review. This interpretation was heavily criticized.  

In a response to the criticism, the OFCCP clarified production of pay equity analyses and related communication protected under attorney work-product and attorney-client privilege will not be required. However, federal contractors must do more than just assert a blanket privilege. The alternatives for compliance are to: 1) produce a redacted version of its compensation analysis; 2) conduct a separate analysis during the relevant Affirmative Action Plan period that does not implicate privilege concerns; or 3) generate a detailed affidavit that sets forth the required compliance but does not contain privileged material. Additionally, the following information is not considered privileged: 1) when the compensation analysis was completed; 2) the number of employees the compensation analysis included and the number and categories of employees the compensation analysis excluded; 3) which forms of compensation were analyzed and, where applicable, how the different forms of compensation were separated or combined for analysis; 4) that compensation was analyzed by gender, race, and ethnicity; and 5) the method of analysis employed by the contractor. Employers concerned about disclosure of their attorney-client or work product privileges should consult with their legal counsel as soon as they are aware of an OFCCP compliance review. 

Action Items 

1. Review pay equity audit disclosure requirements with legal counsel. 
2. Implement process for alternative production to meet compliance requirements. 
3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance. 

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2022 ManagEase

In Williams v. Kincaid, the Fourth Circuit Court of Appeals stated gender dysphoria is protected by the Americans with Disabilities Act (ADA) and the Rehabilitation Act. In this case, the plaintiff was a transgender woman with gender dysphoria incarcerated in a men’s correctional facility. She experienced delays in medical treatment and harassment and misgendering by both prison officials and inmates. As a result, she sued the correctional facility for violations of the ADA, the Rehabilitation Act, the U.S. Constitution, and Virginia common law.  

The defendants argued that gender dysphoria was explicitly excluded from protection by the ADA as a gender identity disorder not resulting from a physical impairment under § 12211(b). The Fourth Circuit disagreed that gender dysphoria is a gender identity disorder requiring exclusion from ADA protection. In coming to its decision, the Fourth Circuit looked to changes in the medical understanding of gender dysphoria and found a difference from what Congress meant to exclude from ADA protection. Also, the court noted the ADA is to be construed broadly in favor of maximum protection, so the exclusion of gender dysphoria from protection was unnecessarily restrictive. 

Although not in the employment context, the impact of this case is far reaching for employers. Employees who experience gender dysphoria are entitled to reasonable accommodations. This could affect existing policies on restroom usage, company housing, and leaves of absence for medical treatment. Additionally, employees with gender dysphoria are protected from discrimination, harassment, and retaliation under the ADA. Under this ruling, employers should treat gender dysphoria as it would other conditions under the ADA. 

Action Items 

1. Review and revise policies as necessary to include accommodations and protections. 
2. Have appropriate personnel trained on reasonable accommodations for employees with gender dysphoria. 
3. Consult with legal counsel prior to rejecting a request for accommodations. 
4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance. 

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2022 ManagEase

In Constellium Rolled Products Ravenswood, LLC v. NLRB, the D.C. Circuit Court of Appeals stated that an employer could not fire an employee for vulgar comments because it inconsistently applied its own disciplinary policies. As a result of inconsistent enforcement, the employee’s termination was an unfair labor practice under the National Labor Relations Act (NLRA). The employer was ordered to compensate and re-hire the employee. 

There, employees were disgruntled about and protested changes to overtime assignments. One employee even wrote an inappropriate comment on the overtime sign-up sheet to criticize the new process. As a result, the employee was terminated. The National Labor Relations Board (NLRB) determined that the employee was engaging in protected concerted activity because it was part of a larger protest regarding the employees’ terms and conditions of employment. The employer appealed. 

The D.C. Circuit noted that the employer failed to discipline other employees who used the same vulgarity in other circumstances. More broadly, the employer tolerated “extensive profanity, vulgarity, and graffiti in the workplace” before this incident occurred. As a result of the employer’s inconsistency, employees didn’t even know what the company’s policy was regarding inappropriate language. The serious lesson from this case is that employers should make sure that they have clear policies and consistent enforcement to be able to rely upon them. 

Action Items 

1. Review disciplinary policies for clarity. 
2. Implement a disciplinary review process to ensure consistent treatment of employees. 
3. Have appropriate personnel trained on policy enforcement. 
4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance. 

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2022 ManagEase

COVID-19 continues to be an evolving landscape of rules and requirements to adapt to the shifting circumstances surrounding the pandemic. California recently updated key guidance. 

Supplemental Paid Sick Leave. Much anticipated AB 152 was set to extend California’s supplemental paid sick leave from September 30 to December 31, 2022. Finally, on September 29, 2022, the governor signed the bill into effect. As previously reported, employers must continue to provide supplemental paid sick leave through the end of the year, with a few changes. However, no new bank of leave is required. 

Face Coverings. On September 23, 2022, California updated its mask guidelines to follow CDC Community Levels for determining when masking is appropriate. This is meant to address variances in community circumstances across the state to better align with transmission levels. 

School Teacher Testing. As of September 17, 2022, teachers and other school staff who have not been vaccinated against Covid-19 no longer must be tested weekly to remain on campus. This shift is a result of the high state vaccination levels and is meant to align state and federal health guidance. 

Action Items 

1. Have supplemental paid sick leave policies updated. 
2. Have face covering policies updated. 
3. Have appropriate personnel trained on the new requirements. 
4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance. 

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2022 ManagEase