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Human Resources: Transgender Employees Rights and Employer Obligations

by Cheryl Chong


Recently, California’s DFEH (Department of Fair Employment and Housing) issued a new brochure titled “Transgender Rights in the Workplace.” A few key points for employers to be aware of, include the following:
  • There are two kinds of gender transitions: physical and social. The former involves medical treatments. The other involves name change and pronouns, bathroom usage and activities. The employee does not need to be involved in any particular step in the transition to be protected. Employers need to structure their interview questions to be focused on the job being interviewed for, and avoid questions that inquire about sexual orientation, gender identity, reassignment surgery or transitioning procedures.
  • Dress codes and grooming standards should be non-discriminatory. The employer cannot judge the transgender worker more harshly than other employees in terms of compliance. Appropriate restrooms must be provided for all employees. An employee should be allowed to use the locker or restroom that corresponds to his and her gender identity, regardless of the employee’s assigned sex at birth. Employers can provide privacy and options for all employees and where possible, offer the option or a single-user or unisex restroom. However, the use of those bathrooms by transgender or other workers should be optional or voluntary, a matter of choice or preference.
  •  If there are accommodations that you are asked for by transitioning or transgender employees and are unsure of how to respond, be sure to consult with qualified legal counsel before rejecting or refusing the accommodation. This was a hard lesson experienced by a check printing and financial services company, based in Minnesota. They were fined $115,000 and had to change their practices following an EEOC lawsuit.

Reminder: New Federal Exempt Rules 

On May 18th, the U.S. Department of Labor (DOL) published a final rule changing the minimum compensation for exempt employees to $47,476 annually (indexed beginning in 2020) effective December 1, 2016. Note that the California minimum compensation is currently $41,760 annually and will rise to $45,936 January 1, 2017, and $50,112 January 1, 2018. Thus, the DOL standard will apply until 2018 at which point the California standard will govern because it’s higher. Both the DOL and California regulations have provisions defining the duties of employees who can be exempt from the payment of overtime. Since, the California regulations are generally stricter, they will usually apply. Care must be exercised in classifying employees as exempt because errors will lead to substantial back pay and penalty costs.
 Do you have any employees who are either going to be deployed into active duty or veterans who currently are in the workplace? Recently, California’s department of Fair Employment and Housing issued a new fact sheet http://www.dfeh.ca.gov/res/docs/Publications/Brochures/2016/WorkplaceRights4MilitaryVeterans.pdf highlighting workplace protections available to those actively serving or who have served the USA.

Smoking Rules Changed by New Legislation 

The New Laws:

  • Treat the use of e-cigarettes and vaping devices that contain nicotine as“ smoking”–thus extending existing smoking bans to cover such products.
  • Expand smoke-free workplace protections by getting rid of most of the existing exemptions that permitted smoking in certain work environments, such as bars, hotel lobbies, warehouse facilities and employer-designated smoking break rooms.
  • Expand the workplace smoking ban to include owner-operated businesses.
  • Raise the minimum smoking age from 18 to 21, except for active military personnel.

Other legislation passed as part of the package related to tobacco-retailer licensing fees and to expanding tobacco prevention funds to charter schools.

Because these measures were enacted as part of a special session of the legislature, they generally take effect the 91st day after the special session’s adjournment –which was June 9 in this case. An employer’s duty is to provide a safe and healthy work environment so check your  employment rules and regulations regarding tobacco use and be in compliance with the expanded laws on smoking effective June 9, 2016.


CherylSince Doug Moore has retired, Cheryl Chong has joined VMA as our Human Resources Director and your #1 source for assistance responsible for counseling on HR matters like family leave, discrimination, sexual harassment and wage and hour compliance. She has a Bachelors and Masters degree from Chapman University in Orange, CA, along with 20+ years of HR experience in the trenches. Think of her as an extension of your HR department, courtesy of VMA. Please feel free to reach out for answers or introduce your organization by calling 800-659-3363 or cheryl@vma.bz.

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