Steven Kesten, Esq.
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Employment Law Update for 2013 Part 3

Two New Discrimination Laws Mean Changes for Policies, Posters
Employers will need to change notices, postings and employee handbook policies related to discrimination and harassment prevention to reflect two recently signed bills, AB 1964 and AB 2386.

Religious Dress/Grooming
AB 1964 amends Government Code sections 12926 and 12940 and clarifies that the Fair Employment and Housing Act’s (FEHA) discrimination protections and reasonable accommodation requirements cover religious dress practices and religious grooming practices.

As stated in the analysis of the bill, the intent is to “provide clarity and ensure that all religions receive equal protection under the law.”

Importantly, the law specifies that an accommodation is “not reasonable” if the accommodation requires segregation of the individual from other employees or the public.

California's Anti-Discrimination Laws are Broadened to Expressly Prohibit Discrimination Based on "Gender Identity" and "Gender Expression"
Various California laws have long outlawed discrimination based on a person's "sex," a term of art that includes a person's "gender." For example, the FEHA prohibits an employer from discriminating against an employee in the terms, conditions or privileges of employment based on that employee's "sex." (Gov. Code, § 12940, subd. (a).) In turn, the FEHA defines the term "sex" to include "pregnancy, childbirth" or "gender." (Gov. Code, § 12926, subd. (p).) Recently, the California Legislature enacted AB 887, which makes broad across-the-board amendments to several California statutes, including FEHA, to address "gender" discrimination.
AB 887 provides that "gender" includes a "person's gender identity and gender expression." Further, "gender expression" means a "persons gender-related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth." Although AB 887 does not define the term "gender identity," legislative history reveals that the term "refers to a person's deeply felt internal sense of being male or female." (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 887 (2010-2011 Reg. Sess.) Aug. 17, 2011, p. 3.)
California laws, including the FEHA, will now expressly prohibit discrimination based on a person's "gender identity" and "gender expression."

Social Media Privacy Legislation Signed
Gov. Edmund G. Brown signed a bill in September prohibiting employers from requiring or requesting employees or job applicants to provide user names or passwords for personal social media accounts so employers can gain access to the accounts.
The new law, AB 1844, also prohibits employers from discharging or disciplining employees who refuse to divulge user names or passwords associated with their personal social media accounts.
The bill is not intended to infringe on an employer’s existing rights and obligations to investigate workplace misconduct.

IRS Releases Guidance on Tip Withholding
The Internal Revenue Service released a questions and answers document (Rev. Rule 2012-18) that provides guidance on how taxes are imposed on tips under the Federal Insurance Contributions Act (FICA).

The guidance includes an explanation of employer and employee obligations. It is the employer’s obligation to withhold “the employee share of FICA taxes on the reported tips from the wages of the employee (other than tips) or from other funds made available by the employee for this purpose.”

The guidance also includes information on:
• The difference between a tip and a service charge for FICA purposes
• What tips must be reported to an employer
• How tips are reported by the employee to the employer
• Liability for unreported tips