SAN FRANCISCO EMPLOYMENT LAW BLOG

In California, a state known for its progressive stance on human rights, gender identity discrimination in the workplace remains a significant concern. Here’s what you should know about the intersection of gender identity and workplace discrimination, what you can do as a transgender or gender-nonconforming person to prove discrimination, and how you can get help if your workplace is mistreating you.

Legal Protections in California

California law explicitly prohibits discrimination based on gender identity. The Fair Employment and Housing Act (FEHA) offers comprehensive protections, ensuring that individuals are judged on their merits rather than their identity. The state’s robust legal protections for people based on their gender identity are among the most comprehensive in the United States. Here’s an overview of these protections:

• Fair Employment and Housing Act: This act prohibits discrimination in employment and housing based on gender identity and expression. Employers are not allowed to discriminate in hiring, promotion, termination, or any other employment condition. It also requires employers to allow employees to dress and use facilities in accordance with their identity.
• Senate Bill 396 – Workplace Training: Known as the “Transgender Work Opportunity Act,” this legislation mandates that all California employers with five or more employees provide training on harassment based on gender, expression, and sexual orientation. This training must be part of the larger sexual harassment training and is required every two years.
• California Restroom Sign Law: California law requires that all single-occupancy restrooms in any business or public place be identified as all-use restrooms, thereby providing safe and equal bathroom access for transgender and gender non-conforming individuals.

These laws reflect California’s commitment to protecting the rights and dignity of people based on their gender identity, ensuring they are treated equally and without discrimination in various aspects of public life.

Understanding Gender Identity Discrimination in the Workplace

What constitutes discrimination? Gender identity discrimination occurs when an employee is treated unfavorably because of their gendered identity or expression. This can manifest in various forms, including:

• Hiring and Promotion Bias: Refusing to hire or promote or unfairly terminating an employee because they are transgender or do not conform to traditional norms.
• Misgendering and Name Use: Consistently using incorrect pronouns or refusing to use an employee’s affirmed name, especially after being corrected, can be a form of harassment and discrimination.
• Unequal Pay and Benefits: Paying a transgender or gender non-conforming employee less for the same work as their cisgender counterparts or denying them equal benefits.
• Harassment: Subjecting an employee to derogatory comments, jokes, or actions based on their identity or expression, including verbal harassment or physical assault.
• Denial of Access to Facilities: Denying a transgender employee access to restrooms and other facilities that align with their identity.
• Exclusion from Workplace Activities: Excluding transgender employees from meetings, team activities, or other workplace events because of their gender identity.
• Lack of Accommodations: Not providing reasonable accommodations for transgender employees, such as allowing time off for medical procedures related to transition.
• Forced Disclosure: Requiring employees to disclose their transgender status or pressuring them to answer personal questions about their identity or transition process.
• Dress Code Enforcement: Enforcing dress codes that are not inclusive of transgender or gender non-conforming employees or punishing them for dressing according to their identity.
• Retaliation: Punishing an employee for filing a complaint about gender identity discrimination, participating in an investigation, or supporting another employee’s complaint.

If you experience any of these issues related to your gender expression, you may have the right to file a workplace discrimination or harassment claim. 

Proving Discrimination

Proving workplace gender identity discrimination can be challenging, but several steps and strategies can be employed to build a strong case:

• Documenting Incidents: Documenting instances of discrimination is crucial. This can include keeping emails, recording dates and times of discriminatory comments or actions, and noting any witnesses.
• Gathering Evidence: Gather any relevant company policies and performance reviews. Discrepancies between policy and practice or sudden negative changes in performance reviews can be indicative of discrimination.
• Witness Testimonies: Witness accounts can be powerful evidence. Colleagues who are willing to corroborate your experiences can significantly strengthen your case.
• Comparison with Cisgender Colleagues: If possible, show a contrast in treatment between you and cisgender colleagues, particularly in areas like pay, promotions, job assignments, or disciplinary actions.
• Internal Company Channels: Start by exploring internal grievance mechanisms. Many companies have policies and procedures for addressing discrimination complaints.
• Legal Assistance: If internal channels are unhelpful, seeking legal assistance is the next step. An experienced employment law attorney can help you determine the best way to build your case and pursue justice for the mistreatment you’ve experienced at work. 
• Filing a Complaint: Your attorney will help you determine if you should file a complaint with the California Department of Fair Employment and Housing (DFEH). The DFEH investigates complaints of discrimination and can mediate or litigate on your behalf.

Remember, each case is unique, and the approach to proving discrimination will depend on the specific circumstances. It’s crucial to consult with experienced legal professionals to navigate the complexities of these cases effectively.

Get the Help You Need With Workplace Gender Discrimination Claims

Navigating gender identity discrimination in the California workplace is challenging, but understanding your rights and the avenues available for assistance is empowering. By documenting incidents, gathering evidence, and seeking appropriate help, transgender individuals can assert their rights and fight against workplace discrimination.

If you are experiencing discrimination in the workplace, it is in your best interest to consult with a legal professional who specializes in employment law. The skilled attorneys at Le Clerc & Le Clerc, LLP, can help. We have spent decades representing clients in complex employment rights disputes and have the knowledge and experience to help you pursue compensation for your mistreatment. Schedule your consultation with our California employment law firm to learn how we can help you. 

After months of nationwide high-profile labor and employment disputes, the National Labor Relations Board (NLRB) has set new standards for evaluating employee rights violations. These standards come from its decision in the case Stericycle, Inc., 372 NLRB No. 113 (2023). 

Under its new standard, the NLRB will take a much more employee-friendly approach when determining if a company’s workplace rules violate the National Labor Relations Act (NLRA). This law primarily addresses “labor relations,” such as unionization, but it heavily impacts other elements of employment law as well. 

By revising its approach to evaluating company rules for rights violations, the NLRB has made it easier for all employees to exercise their rights. Let’s explore how the NLRA protects workers nationwide, how the NLRB has changed its evaluation approach, and what that means for you. 

Your Right to Free Speech Under the NLRA

One of the laws that makes the US unique is the enshrinement of free speech as a fundamental right. However, freedom of speech means that the government may not restrict or penalize people from saying things; it does not prevent private parties from choosing to end relationships over someone’s statements. 

This means that in at-will employment states like California, employers can fire workers who make statements they disagree with. For example, it is usually legal for an employer to terminate someone for swearing or making crude remarks. However, laws like the NLRA designate types of protected speech and activities that cannot be used to make adverse employment decisions. 

The NLRA is a remarkably broad law that applies whether employees are on the clock or off-duty. Under the law, protected activities include things like:

• Complaining about workplace issues with colleagues or in public
• Speaking to reporters, the public, or the employer’s customers or vendors about working conditions and concerns
• Talking about pay, benefits, and working conditions among coworkers
• Making safety reports to state or federal agencies
• Organizing or going on strike

Of these activities, only the last is limited to unionization efforts. The rest are common occurrences in most workplaces, regardless of whether the employees want to unionize. The NLRA protects all workers, not just organized groups.

NLRB Standards After the Stericycle, Inc. Decision

One of the major duties of the NLRB is reviewing potential violations of the NLRA. This includes reviewing company rules to see if they may have a “chilling” effect that discourages workers from exercising their rights. 

Since 2017, the agency has performed these reviews based on the standard it set in its decision on Boeing Co. (2017). Under the Boeing standard, the NLRB stated it would consider the impact of “reasonably interpreted” workplace rules on workers’ ability to exercise their rights and the employers’ justifications for the rules. This standard was interpreted as being particularly favorable for employers because it instructed the Board to deem rules to be lawful if employers’ needs outweighed their potential adverse impacts on employee rights. In other words, the Boeing standard meant that employers’ profits could be and were prioritized over individuals’ rights. 

In the Stericycle decision, the NLRB reversed its stance. In its new decision, it stated that the Boeing standard permitted employers to “adopt overbroad work rules that chill employees’ exercise of their rights” and that employers were not required to tailor their rules to promote their “legitimate and substantial business interests without unnecessarily burdening employee rights.” 

The new standard is heavily employee-focused. The Board states that future and currently active rule reviews will be performed “from the perspective of an employee who is subject to the rule and economically dependent on the employer, and who also contemplates engaging in protected concerted activity.” In other words, the NLRB will not take into account the employer’s justifications for rules and will instead focus entirely on the perspective of a potential employee. If it is found that an employee could reasonably interpret a rule to be restrictive, then it will be deemed unlawful. 

Do Your Employer’s Rules Violate Your Rights?

The Stericycle standard is excellent news for workers nationwide. The Board has clarified what constitutes protected actions by broadening the definition of unlawful rules. More importantly, the new measure makes it clear that simply having unlawful rules on the books could violate employee rights, regardless of enforcement. 

Examples of unlawful rules under the NLRA include prohibitions on:

• Discussing wage and benefit information

• Complaining about your employer in private or public
• Talking to reporters or attorneys about your working conditions
• Making “whistleblower” reports to safety agencies

The NLRB is responsible for reviewing rules that may violate the NLRA. Employees can report these violations but may not file a lawsuit in civil court. However, workers can hold companies accountable if they suffer from adverse action because of these rules. If you are retaliated against for engaging in protected activity like that which the NLRA covers, you can file a claim against your employer to pursue back pay and other damages. 

Defending Your Right to Protected Activity in California Workplaces 

The legal tide is turning in favor of employees. There has never been a better time to hold your employer accountable for violating your rights in the workplace. If you have had your hours or pay cut or been terminated for exercising your rights under the NLRA, you could have a claim against your company. If so, you should talk to the expert California employment attorneys at Le Clerc & Le Clerc LLP. Our employment law firm is dedicated to representing workers who have experienced retaliation and discrimination in the workplace. Schedule your appointment with our attorneys today to discuss your situation and learn more about how to pursue justice for workplace retaliation.

Making the switch from working as an independent contractor or hourly worker to earning a salary is a big change. Salaried positions are typically assumed to have better benefits, working hours, and working conditions than other roles. In many cases, that’s true! 

However, some employers use salaries to hide the fact that employees are being treated unfairly. Workers who receive a salary are still protected by federal and state employment laws. If you’ve just entered the world of salaried work, here’s what you need to know about your rights on the job and what you can do if you believe your employer is violating the law. 

How Are Salaried Jobs Different?

Employees who receive a salary are paid a flat amount per month or year for their work. If they take a sick day or vacation time, their paycheck is not affected. This is in contrast to hourly workers, who are paid by the hour and only get paid for the time they work. Because of this difference, salaried workers normally do not receive overtime pay. They are considered “exempt” employees, while hourly workers are “nonexempt.”

Salaried positions are also different from independent contractor roles. Salaried workers often have routine working hours, but this is not a guarantee. Employers may enforce a standard 9-to-5 schedules, but they may also require people to stay late, work weekends, or be “on-call” for no extra compensation. While an employer cannot cut someone’s pay if they don’t do this work, they can fire salaried employees for refusing as long as the employment contract permits it. Furthermore, in California, employers must provide benefits like health insurance and time off, cover unemployment and workers’ comp, and provide protected leave to most salaried employees.

In contrast, independent contractors can choose when and how they get work done as long as they meet their contract’s deadlines and quality requirements. They may also get paid a flat rate yearly, but their clients do not have to manage their income taxes, provide health insurance, or offer leave.

In short, salaried workers theoretically have more flexibility, higher income, and better benefits than other workers. However, this heavily relies on employers respecting their staff’s rights.

Salaried Workers’ Rights in California

Exempt workers are not owed overtime but have various other rights in California. Some of the most important rights you have when working for a salary include: 

The Right to Minimum Wage

The federal right to minimum wage applies to everyone, regardless of how they’re paid. California law, in particular, makes it clear that workers are owed at least the highest applicable minimum wage, regardless of how their employment is structured. 

For example, California’s statewide minimum wage will rise to $16 an hour on January 1, 2024. If someone works 40 hours a week, 52 weeks a year, they should earn $33,280 at minimum. Anyone making a salary working full-time in California must earn at least that much, or they are not getting the minimum wage. 

The Right to Correct Classification

If a nonexempt employee works more than eight hours in a day or more than 40 hours in a week, they have the right to be paid time and a half for the extra hours. This includes some people who are paid a salary. 

In California, a salaried worker is only classified as exempt if they earn twice the minimum wage – in 2024, that threshold will be $66,560. Anyone who makes less than this for full-time work is considered nonexempt and eligible for overtime. If your employer has misclassified you as an exempt worker despite having you work full-time for less than that amount, you may be owed unpaid overtime. 

The Right to Fair Employment

Every worker in the country has the right to fair treatment within the workplace. This includes:

• Equal pay for equal work: Companies must pay people who perform “substantially equal” work the same. Roles are substantially equal if they involve roughly equivalent skills, effort, responsibility, and conditions. For example, two accountants with similar duties who work at the same office should be paid the same, regardless of gender, health, or ability. 
• Freedom from discrimination: Workers should not be discriminated against because of protected characteristics like gender, race, religion, disability status, or sexual orientation. 
• Protected leave: In California, anyone who works for a company with five or more employees for 12 months and performs 1250 hours of work for the company during that time is eligible for protected family and medical leave. 

If you are not offered fair pay or protected leave, or if you suffer discrimination or retaliation in the workplace, you can take legal action. 

The Right to Safe and Healthy Working Conditions 

All workers should be given safe and healthy workplaces. Employers must meet OSHA and Cal/OSHA standards to protect staff’s mental and physical health, regardless of how they pay people. This includes:

• Keeping working environments free from physical hazards
• Providing ergonomic furniture and equipment to prevent repetitive stress injuries
• Providing instruction on safe lifting techniques if necessary
• Maintaining a discrimination and harassment-free workplace culture

If an employer doesn’t maintain safe conditions, it may be violating your rights.

What You Can Do If Your Employer Isn’t Respecting Your Rights

No matter how you’re paid, you have rights in the workplace. Even if you receive a salary, you’re still owed fair pay, equal treatment, and a safe and discrimination-free workplace. If you think your employer isn’t respecting your rights, you can get help. The first step is to talk to the experienced attorneys at Le Clerc & Le Clerc LLP. Our skilled team has spent decades advocating for employees facing discrimination, unpaid wages, and harassment. Schedule your consultation with our firm today to learn how we can help you get the fair treatment you deserve under California’s employment laws.

In 2020, California voters chose to pass Proposition 24, the California Privacy Rights Act (CPRA). As of January 1^st, 2023, it has officially gone into effect. This bill is an expansion of the California Consumer Privacy Act (CCPA) intended to provide consumers and workers with greater privacy rights. 

Before 2023, employers had relatively few obligations toward their employees’ data privacy. Employees did not have the right to request what data has been collected by their employer or prevent it from being used or sold. However, with the CPRA going into effect, employers must now treat all human resources information and similar data shared with or from other businesses with the same care as consumer data. 

This is excellent news for workers. Covered businesses now need to take extra precautions regarding your personal information and protect you from risks like data breaches and identity theft. Here’s what you should know about the CPRA’s impact on your rights to data privacy and what you can do if your employer violates them.  

New Privacy Rights Guaranteed for Employees

The CPRA grants employees, job applicants, and contractors the same rights given to consumers under the CCPA. These six rights are:

• The right to know what information your employer has collected about you and how it is used or shared
• The right to opt out of having your information sold or shared with other parties
• The right to limit the use or disclosure of your sensitive personal information to necessary business tasks
• The right to request that data not directly related to your employment is deleted
• The right to correct collected data that is inaccurate
• The right not to face discrimination or retaliation for exercising any of the above rights

In short, your employer must tell you what information it collects about you, why it’s needed, and who has access. In addition, you can block your employer from collecting or sharing most information and request that it be corrected or deleted entirely.

Privacy Requirements for Employers

Applying the CCPA to employers was controversial because of the new requirements it imposes on them. That’s why the initial CCPA specifically stated that employees were temporarily exempt from the rights guaranteed to the average consumer. This exemption was intended to allow employers to prepare for the demands of the CCPA.

However, now all covered organizations must follow the law’s requirements. An employer must follow these restrictions if it:

• Achieves $25 million in gross revenue annually
• Makes 50% or more of its income from selling or sharing consumers’ personal information
• Buys, sells, or shares the personal information of 100,000 or more consumers, households, or devices

All employers subject to the CCPA and CPRA must ensure they can honor the rights listed above. This includes setting up processes to track, correct, and delete employee information and prevent it from being collected upon request. In addition, employers must be able to provide information about the following:

• What employee information they collect
• What types of sources they gather information from
• The commercial purpose for gathering this information
• The types of third parties with whom each kind of data is shared

This allows workers to understand how their data is used and make informed choices about whether to opt-out, request deletions, or limit its use.

Benefits of the CPRA

The primary benefits of the CPRA are obvious: you regain control over your personal information. If you work for a covered employer, you have the right to minimize the data it collects and keep your private life separate from work. 

Furthermore, the bill increases transparency by requiring organizations to track and report how employee data is used and stored. Employers can no longer use their workers’ information for financial gain or potential discrimination without their knowledge.

This is partly why the rights enshrined in the CPRA are closely modeled after the European Union (EU) General Data Protect Regulation of 2016 (GDPR). Countries subject to the GDPR have discovered that many employers will collect employee information irrelevant to their employment and use it in discriminatory ways. 

For example, in 2020, the clothing retailer H&M was found to be keeping records about employee relationships, religious affiliations, and health, and using this information to make employment decisions. This is just as illegal in the EU as in the US. H&M faced a $37.7 million fine and compensated employees for the violation. 

If this type of blatant privacy violation and discrimination happens in the EU, it is not unlikely that it is also happening in the US. The CPRA may not only help protect your control over your data, but it could also protect you from discrimination.

What to Do If Your Employer Violates Your Data Privacy Rights

You have the right to data privacy under the CPRA. If your employer violates your rights, you may be able to take action. 

In most cases, the California Attorney General is responsible for identifying whether an organization violates the CCPA and CPRA and suing non-compliant businesses. However, in certain circumstances, you can act directly. If your unencrypted personal data is stolen from your employer, you can file a lawsuit in pursuit of compensation for the losses you suffer. Furthermore, if you discover your employer is using your data in discriminatory ways, you can also file workplace discrimination claims.

This is where Le Clerc & Le Clerc LLP is proud to help. We are dedicated to protecting the rights of workers in California. We are available to help you take a stand against unjust violations of your privacy and discrimination in the workplace. Learn more about how our expert attorneys can defend your rights by scheduling a free consultation today.