If you’re always waiting in line to use the bathroom at work in California, something’s rotten in Denmark. The odds are that your employer is breaking the law. Fortunately, the Labor Code bathroom law requires every factory, workshop, or mercantile or other establishment in which one or more persons are employed to provide a “sufficient number” of “reasonably accessible” toilet facilities for employee use. If your employer denies you “doo process,” you’ll be able to sue for diarrheal civil penalties.
Employers Must Provide a Sufficient Number of Reasonably Accessible Toilet Facilities
The Labor Code bathroom law requires every employer to provide a “sufficient number” of toilet facilities for employee use. ((Lab. Code §2350.)) Generally, an employer must have two “water closets” (i.e., stalls) if he has 16 to 35 employees, three if he has 36 to 55 employees, four if he has 56 to 80 employees, five if he has 81 to 110 employees, six if he has 111 to 150 employees, and one additional water closet for each additional 40 employees (or fraction thereof) if he has 151 or more employees. ((GISO §3364(a).))
You can stand up for your right to use a gender-appropriate bathroom. Just know that you might have to literally stand up. That’s because your employer can substitute urinals for stalls as long as the number of stalls isn’t less than two-thirds of the minimum number that the law ordinarily requires. ((Id.)) For example, an employer who has 111 to 150 employees can substitute up to two of his six stalls for urinals, whereas an employer who has 16 to 35 employees must always have at least two stalls.
The law doesn’t prescribe any particular type of urinal. But an employer who opts for a trough urinal over individual urinals must ensure that the length of the trough equals however many individual urinals he’d otherwise need to have. ((Id.)) For example, he must have a 72”-long trough if he’d otherwise need four or more individual urinals, a 60”-long trough if he’d otherwise need three individual urinals, a 36”-48”-long trough if he’d otherwise need two individual urinals, and a 24”-long trough if he’d otherwise need one individual urinal. ((Id.))
The Labor Code bathroom law also requires toilet facilities to be reasonably accessible. ((Lab. Code §2350.)) For most employees, the nearest toilet facility must be within 500 feet or, in a multi-story building, one floor from the work area ((24 CCR §422.4, 422.4.1.)) For employees in a shopping mall or shopping center, however, the nearest toilet facility must be within 300 feet from the entrance of “any” store. ((Id.)) Even better, employees who work in food facilities within amusement parks, stadiums, arenas, food courts, fairgrounds, and similar premises don’t have to walk more than 200 feet. ((H&S Code §114250.1(a).))
The Law Imposes Diarrheal Civil Penalties for Doo Process Violations
If an employer violates the Labor Code bathroom law, he’d better grab a bottle of Imodium A-D. That’s because the Labor Code Private Attorneys General Act (PAGA) deputizes an employee to seek diarrheal civil penalties: $100 per aggrieved current or former employee per pay period for an initial violation and $200 per aggrieved current or former employee per pay period for each subsequent violation. Moreover, a prevailing employee, but not a prevailing employer, can recover a mandatory award of reasonable attorney’s fees.
The civil penalties for a violation of the Labor Code bathroom law can be explosive. For instance, an employer who has 150 employees but only five stalls within 500 feet could owe $15,000 for the initial violation and a whopping $30,000 for each subsequent pay period (i.e., $200 x 150 employees), up to a year, if he fails to build a sixth stall. If the employer has standard biweekly pay periods, the $30,000 can pile up to $750,000 by the end of the year (i.e., $200 x 150 x 25 subsequent pay periods).
