California employers and HR professionals once again have their work cut out for them in keeping abreast of and complying with all the new laws that will take effect in 2017. However, of all the new laws, three stand apart as particularly important and touch on some fundamentals — immigration, minimum wages, and all-gender restrooms.
Be careful what you ask for, as it may cost you (a lot!)
Beginning January 1, 2017, additional prohibitions against unfair immigration-related practices will become effective. Specifically, in the new year it will be an unlawful employment practice for a California employer to: (1) request more or different documents than are required under federal law (i.e., 8 U.S.C. § 1324(b)); (2) refuse to honor documents tendered that on their face reasonably appear to be genuine; (3) refuse to honor documents or work authorizations based upon the specific status, or term of status, that accompanies the work authorization; or (4) attempt to reinvestigate or re-verify an incumbent employee’s authorization to work using an unfair immigration-related practice. In addition, an applicant for employment or an employee who is subject to such unlawful acts may file a complaint with the Division of Labor Standards Enforcement and may recover a penalty of up to $10,000 per violation.
Single-user restrooms in California must be all-gender
California employers will have until March 1, 2017, to comply with the state’s new “all-gender” requirements for single-user restrooms. The new law requires all single-user toilet facilities in any business establishment, place of public accommodation, or local government agency in California to identify the restroom as all-gender. Thus, if a California business has a toilet facility with no more than one water closet and one urinal with a lock controlled by the user, signage must identify the restroom as all-gender.
California’s all-gender restroom law is one of many recent state laws regarding restroom rights of the transgender community. On the federal level, the Equal Employment Opportunity Commission (EEOC) has taken the position that transgender employees are protected against sex-based discrimination under Title VII of the Civil Rights Act of 1964. The EEOC has recently stated that “denying an employee equal access to a common restroom corresponding to the employee's gender identity is sex discrimination.” Additionally, the Department of Labor’s Occupational Safety and Health Administration (OSHA) has published guidance on transgender employees’ restroom access, stating that “[a]ll employees, including transgender employees, should have access to restrooms that correspond to their gender identity.” Most recently, the U.S. Supreme Court agreed to consider a Virginia school district’s challenge to the Obama administration guidelines that require schools to allow transgender students to use restrooms matching their chosen gender instead of their birth gender. Although that case, Gloucester County School Board v. G.G., involves discrimination in education, it will likely have an impact on discrimination against the transgender community in the employment arena, especially with regard to the EEOC and OSHA’s guidance and decision regarding transgender employees’ access to restrooms.
Minimum wage is not just a state law, cities and counties count too
California, as well as a number of its cities and counties, implemented new minimum wage requirements that will increase applicable minimum wages in 2017. HR professionals are reminded that employers must follow the strictest minimum wage laws, or said another way, the highest rate for employees. For example, California employers are subject to the federal minimum wage of $7.25 per hour for nonexempt employees, but because California’s current minimum wage is $10.00 per hour, employers in California must pay nonexempt employees a minimum of $10.00 per hour. The same is true with respect to cities and counties that require a higher minimum wage than that of the state of California.
Starting January 1, 2017, the minimum wage in California will vary depending on the size of the employer. For small employers with employees of 25 or fewer, the minimum wage will remain at $10 per hour for 2017, and will increase to $10.50 per hour on January 1, 2018; $11.00 per hour on January 1, 2019; $12.00 per hour on January 1, 2020; $13.00 per hour on January 1, 2021; $14.00 per hour on January 1, 2022; $15.00 per hour on January 1, 2023; and adjusted for inflation January 1, 2024 and every January 1 thereafter.
For large employers with 26 or more employees, minimum wage in California will increase to $10.50 on January 1, 2017; $11.00 per hour on January 1, 2018; $12.00 per hour on January 1, 2019, $13.00 per hour on January 1, 2020; $14.00 per hour on January 1, 2021; $15.00 per hour on January 1, 2022; and adjusted for inflation January 1, 2024 and every January 1 thereafter.
The following are some (but not all), of the highest wage requirements of cities and counties in California at present, as well as increases that take effect in 2017:
- The city of Los Angeles and the unincorporated areas of Los Angeles County, which presently requires the minimum wage of businesses with 26 or more employees to be $10.50 per hour, establishes a minimum wage of $12.00 per hour on and after July 1, 2017.The minimum wage for employees of businesses with 25 or fewer employees will be $10.50 on and after July 1, 2017. Unincorporated areas of Los Angeles are areas of Los Angeles County that are not governed by local city governments. (To find out whether your business is located in an unincorporated area of Los Angeles County, click here).
- Berkeley currently requires $12.53 per hour and will increase to $13.75 per hour on October 1, 2017.
- El Cerrito currently requires $11.60 per hour and will increase to $12.25 per hour January 1, 2017.
- Emeryville currently requires $13.00 per hour for small employers with 55 or fewer employees and $14.82 per hour for large employers with 56 or more employees, and will increase to $14.00 per hour on July 1, 2017 for small employers and will be adjusted for inflation based on the local consumer price index on July 1, 2017 for large employers (estimated to be $15.20 per hour).
- Mountain View currently requires $11.00 per hour and will raise to $13.00 per hour on January 1, 2017.
- Oakland currently requires $12.55 per hour and will raise to $12.86 on January 1, 2017.
- Palo Alto currently requires $11.00 per hour and will increase to $12.00 per hour on January 1, 2017.
- Pasadena is currently at California’s minimum wage of $10 per hour for small employers with fewer than 25 employees and $10.50 per hour for large employers of 26 or more employees and will increase to $10.50 per hour for small employers and $12.00 per hour for large employers on July 1, 2017.
- Richmond currently requires $11.52 per hour and will increase to $12.30 per hour on January 1, 2017. (There are certain applicable reductions based on employer contributions to benefit plans and/or minimum export of Richmond produced goods or services.)
- San Diego currently requires $10.50 per hour and will increase to $11.50 per hour on January 1, 2017.
- San Francisco currently requires $13.00 per hour and will increase to $14.00 per hour on July 1, 2017.
- San Jose currently requires $10.30 per hour and will increase to $10.50 per hour on January 1, 2017.
- Santa Clara currently requires $11.00 per hour and will increase annually based on the Consumer Price Index for the previous year beginning in January 2017.
- Sunnyvale currently requires $11.00 per hour and will increase to $13.00 per hour on January 1, 2017.
In connection with work authorization documents, California employers should not seek more or different documents than are required under federal law and should accept those documents that on their face reasonably appear to be genuine. Failure to comply with all aspects of the new law as detailed above can cost them $10,000 per violation. In addition to making sure that single-user restrooms comply with the new “all-gender” signage by March 1, 2017, employers should consider reviewing employment policies to confirm transgender employees have access to restrooms that correspond with their gender identity. Finally, when it comes to minimum wage, employers must be mindful of the size of their workforce, the state of California’s minimum wage requirements for the size of their business, as well as the municipal and county requirements in which their employees are located to ensure they are adhering to the strictest minimum wage laws that apply to them.
Major portions of this piece were originally submitted for publication in the California Employment Law Letter.