Cal-Peculiarities: How California Employment Law is Different - 2023 Edition

Table of Contents V
Glossary XII
Introduction 1
Preface to the 2023 Edition 13
1. California Employment Law Agencies 19
1.1 The Civil Rights Department (CRD), Enforcing the Fair Employment and Housing Act (FEHA) 20
1.2 The Labor and Workforce Development Agency (LWDA) 20
1.3 Department of Industrial Relations (DIR) 21
1.4 Industrial Welfare Commission (IWC) 21
1.5 The Labor Commissioner—the Division of Labor Standards Enforcement (DLSE) 21
1.6 Employment Development Department (EDD) 24
1.7 Unemployment Insurance Appeals Board (UIAB) 25
1.8 Division of Workers’ Compensation (DWC) 25
1.9 Workers’ Compensation Appeals Board (WCAB) 26
1.10 Division of Occupational Safety and Health (DOSH) 26
2. Leave and Accommodation Statutes 29
2.1 Pregnancy Disability Leave 29
2.2 Lactation Accommodation 30
2.3 Family Care and Medical Leave 31
2.4 Paid Family Leave 34
2.5 Accommodation of Addicts and Individuals Who Cannot Read 35
2.6 Time Off for Court Appearances (Jury Duty, Witness Leave, etc.) 35
2.7 Crime Victim Accommodation 35
2.8 Time Off for Good Deeds and Training for Same 36
2.9 Voting Leave 36
2.10 School Parent Leave 36
2.11 Kin Care Leave 37
2.12 Military Leave 38
2.13 Military Spousal and Partner Leave 38
2.14 Paid Sick Leave 39
2.15 Paid Leave for Organ or Bone Marrow Donation 48
2.16 Bereavement Leave 48
3. Employee Privacy—Protected Activities 56
3.1 Off-Duty, Off-Premises Lawful Conduct—Including Marijuana Use 56
3.2 Disclosure of Wages 57
3.3 Disclosure of Working Conditions 57
3.4 Right to Designate Counsel 58
3.5 Employee Whistleblowing 58
3.6 Refusal to Undergo Medical Treatment or Exam 60
3.7 Changing Personal Information 61
4. Employee Privacy—Protection From Intrusions 64
4.1 Drug Testing 64
4.2 Questions about Certain Arrests and Convictions 65
4.3 Polygraph Tests 66
4.4 HIV Testing 67
4.5 Genetic Testing 67
4.6 Tape Recording and Videotaping 67
4.7 Medical Records 67
4.8 Social Security Numbers and Other Personal Information 68
4.9 Security of Personal Information 69
4.10 Personnel Records 69
4.11 Background Checks 70
4.12 Psychological Tests 73
4.13 Fingerprinting 73
4.14 Photographing 73
4.15 Subcutaneous Identification Devices 73
4.16 Email Usage 73
4.17 California Consumer Privacy Act of 2018 (as amended by the California Privacy Rights Act of 2020) 74
5. Litigation Issues 80
5.1 Special Rules for California Jury Trial 81
5.2 California’s Hostility to Arbitration of Employment Disputes 81
5.3 Hostility to Employer Mandated Forum Selection and Choice of Law 96
5.4 Public Policy Claims for Wrongful Employment Actions 97
5.5 Claims for Breach of Contract of Continued Employment 101
5.6 Claims for Breach of Implied Covenant of Good Faith and Fair Dealing 102
5.7 Limited Effectiveness of Common Defenses and Procedural Devices 102
5.8 Defamation Claims 108
5.9 Misrepresentation Claims 109
5.10 Employer Liability for Employee Torts 110
5.11 Employment Discrimination Litigation 111
5.12 Anti-Employer Rules Regarding Attorney Fees and Costs 112
5.13 Unfair Competition Claims 114
5.14 The Wage and Hour Class Action Explosion 115
5.15 PAGA Civil Penalty Claims for Labor Code Violations 119
5.16 “The Life Unlitigated is Not Worth Living” 127
5.17 Special Protections for Unauthorized Workers 128
5.18 Employer’s Attorney-Client Privilege 131
5.19 Limits to Protection for Attorney Work Product 131
5.20 Employer’s Obligation to Withhold Taxes Due on Damages Judgment 132
5.21 Can Employees Seeking Unpaid Wages Bring Tort Claims? 132
6. Employment Discrimination Legislation and Litigation 155
6.1 Comparing California Antidiscrimination Law with Federal Statutes 155
6.2 Additional Protected Bases 157
6.3 Special Rules for Disability Discrimination 159
6.4 Special Rules for Age Discrimination 163
6.5 Special Rules for Discriminatory Workplace Harassment 164
6.6 Special Rules Relating to National Origin 172
6.7 Equal Pay 174
6.8 Pant Suits 178
6.9 Special Rules for Gender, Gender Identity, and Gender Expression 178
6.10 Special Rules for Religious Accommodation 178
6.11 Special Rules for Retaliation 180
6.12 Special Rules for No-nepotism Policies 182
6.13 Difficulty in Obtaining Defendant’s Attorney Fees and Even Costs 182
6.14 No Meaningful Duty to Exhaust Administrative Remedies 183
6.15 Use of the Unfair Competition Law to Sue for Discrimination 184
6.16 Disregard of Federal Evidentiary Doctrines 184
7. Wage and Hour Laws 197
7.1 Requirements Imposed by IWC Wage Orders 199
7.2 Minimum Wages 201
7.3 Pay For Hours Worked 204
7.4 Computing Wages Owed 209
7.5 Wage Payment Rules 212
7.6 “White Collar” Exemptions from Wage Requirements 216
7.7 Other Exemptions 219
7.8 Meal Periods 225
7.9 Rest and Recovery Breaks 229
7.10 The “One Additional Hour of Pay” 232
7.11 Suitable Seats and Comfortable Temperatures 234
7.12 Restrictions on Having Employees Pay for Costs of Business 237
7.13 Indemnification of Employee Expenses 238
7.14 Payment by Piece-Rate 241
7.15 Payment of Commissions 242
7.16 Bonuses 244
7.17 Hazard Pay 247
7.18 Tips 250
7.19 Vacation Pay 251
7.20 Personal Liability for Wage and Hour Violations 254
7.21 Broadened Definition of Employer? 256
7.22 Restrictions on Scheduling and Work Quotas 259
7.23 Worker Retention and Staffing Requirements 261
7.24 How Does California Law Affect Multi-State Employees? 265
7.25 Civil Penalties 268
7.26 Criminal Penalties 296
8. Employee Benefits 319
8.1 Domestic Partners 319
8.2 Required Coverage 320
8.3 Cal-COBRA 321
8.4 Mandatory Employer-Funded Health Care 321
8.5 Explanation Of Benefits 323
8.6 CalSavers Retirement Savings Program 323
8.7 Large Group Health Insurance 324
9. Special Posting, Distribution, and Notice Requirements 326
9.1 Posting Requirements 326
9.2 Distribution Requirements 329
10. Employee Access to Personnel Records 334
10.1 Personnel Records 334
10.2 Signed Employee Instruments 335
10.3 Shopping Investigator’s Report 335
10.4 Payroll Records 335
11. Employer Retention of Records 337
12. Covenants Not to Compete 339
12.1 General Prohibition 339
12.2 Implications for Wrongful Termination 341
12.3 “No Rehire” Clauses 342
12.4 Permissible Contractual Restrictions 343
12.5 Protection of Trade Secrets 344
12.6 Preventing Data Theft with the Computer Fraud and Abuse Act? 346
12.7 California Penal Code Section 502: An Alternative to the CFAA 346
13. Procedural Quirks Regarding Termination of Employment and Post-Termination 350
13.1 Cal-WARN Act 350
13.2 Notices Required 353
13.3 Final Pay Checks 353
13.4 Separation Agreements 354
13.5 Worker Retention Laws 356
14. Health and Safety Law 359
14.1 Injury and Illness Prevention Program 359
14.2 “Be a Manager, Go to Jail” Act 359
14.3 Proposition 65 359
14.4 Cal/OSHA Hazard Communication Standards 360
14.5 Anti-Retaliation Provisions 360
14.6 Tobacco Smoking 360
14.7 Drug-free Workplace 360
14.8 Repetitive Motion Injuries (RMIs) 360
14.9 “Hands off that Smartphone!” 361
14.10 UCL Actions for Cal/OSHA Violations 361
14.11 Injury & Illness Recordkeeping and Reporting 361
14.12 Single-User Restrooms 362
14.13 Workplace Violence Requirements for Health Care Providers 362
14.14 Electronic Submission of Cal/OSHA Forms 362
14.15 Valley Fever Training—”There’s Fungus Among Us!” 362
14.16 Wildfire Smoke Protection 363
14.17 Protection From Covid-19 363
14.18 Beefed Up Enforcement 364
15. Unemployment Compensation 366
15.1 Conditions for Eligibility 366
15.2 Ineligibility and Disqualification 366
15.3 The Claims Process 367
16. Employer Reporting, Disclosure Requirements 370
16.1 New Hires 370
16.2 Retention of Independent Contractors 371
16.3 Itemized Wage Statements 371
16.4 Executive Compensation 377
16.5 Filing Job Applications 377
16.6 EITC Information 377
17. Workers’ Compensation 381
17.1 Jurisdiction 381
17.2 Disability Discrimination 381
17.3 Privacy Implications 382
17.4 Workers’ Compensation Preemption 382
17.5 Compensation Implications 382
17.6 Good Faith Personnel Actions 382
17.7 Temporary Labor 382
17.8 Coverage of Employees Only 382
17.9 Discrimination Against Injured Workers—Labor Code § 132a 383
17.10 Covid-19 383
18. Rights of Organized Labor 385
18.1 Agricultural Workers 385
18.2 Anti-Injunction Laws re Mass Picketing 386
18.3 Regulating Advertising for Strike-Breakers 387
18.4 Gag Orders for State Government Contractors 387
18.5 Right to Leaflet in Private Shopping Malls 388
18.6 Access To Private Employee Information 389
18.7 Collective Bargaining Agreement Waiver Issues 389
19. Independent Contractors 391
19.1 The Plaintiff’s Preference for Employee Status 391
19.2 Presumptions of Employment in Various Contexts 392
19.3 Inversion of Common Law Standards in Standard Jury Instruction 394
19.4 Absence of Statutory Protection as to Newspaper Carriers 394
19.5 California’s Judicial Revolution Against Independent Contracting 395
19.6 California’s “ABC Test” 395
19.7 The codification and extension of Dynamex in AB 5 397
19.8 Professional Cheerleaders Must Be Employees 400
19.9 Special Reporting Requirements 400
19.10 Administrative Enforcement 400
19.11 Special Penalties for Willful Misclassification 400
19.12 Dealing with Certain Labor Contractors 400
20. Miscellaneous Statutory Provisions 405
20.1 Agreement to Illegal Terms of Employment 405
20.2 Choice of Non-California Law or Non-California Forum in Employment Contracts 406
20.3 Forced Patronage 406
20.4 Restrictions on Employer Rights to Employee Inventions 406
20.5 Child Labor 406
20.6 Human Trafficking 407
20.7 Garnishments 408
20.8 Diverse Representation on Corporate Boards of Directors 408
20.9 Pay For College Athletes 409
21. Some Provisions Favoring California Employers 411
21.1 Claims for Unlawful Tape Recording 411
21.2 Workplace Harassment Orders 411
21.3 Anti-SLAPP Motions 412
21.4 Special Proof Required to Impose Punitive Damages 412
21.5 Relatively Short Limitations Period 413
21.6 Contractually Authorized Judicial Review of Arbitration Awards 413
21.7 Use of E-Verify 413
21.8 Non-Signatories Can Enforce Arbitration Agreements 414
21.9 Employers Doing Business Within Federal Enclaves 415
21.10 Sometimes a Quit is Just a Quit 415
21.11 Half Hour Deductions for Tardiness? 415
Conclusion 416
Index of Terms 418
Index of Statutory and Wage Order Provisions 423

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