| About Our Graphics |
III |
| Table of Contents |
V |
| Glossary |
XII |
| Introduction |
1 |
| Preface to the 2024 Edition |
14 |
| 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) |
20 |
| 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 Child-Related Activities Leave |
36 |
| 2.11 Kin Care Leave |
36 |
| 2.12 Military Leave |
37 |
| 2.13 Military Spousal and Partner Leave |
38 |
| 2.14 Paid Sick Leave |
39 |
| 2.15 Paid Leave for Organ or Bone Marrow Donation |
46 |
| 2.16 Bereavement Leave |
46 |
| 3. Employee Privacy—Protected Activities |
54 |
| 3.1 Off-Duty, Off-Premises Lawful Conduct—Including Marijuana Use |
54 |
| 3.2 Disclosure of Wages |
55 |
| 3.3 Disclosure of Working Conditions |
55 |
| 3.4 Right to Designate Counsel |
56 |
| 3.5 Employee Whistleblowing |
56 |
| 3.6 Refusal to Undergo Medical Treatment or Exam |
58 |
| 3.7 Changing Personal Information |
58 |
| 4. Employee Privacy—Protection From Intrusions |
62 |
| 4.1 Drug Testing |
62 |
| 4.2 Questions about Certain Arrests and Convictions |
63 |
| 4.3 Polygraph Tests |
66 |
| 4.4 HIV Testing |
66 |
| 4.5 Genetic Testing |
66 |
| 4.6 Tape Recording and Videotaping |
66 |
| 4.7 Medical Records |
66 |
| 4.8 Social Security Numbers and Other Personal Information |
67 |
| 4.9 Security of Personal Information |
68 |
| 4.10 Personnel Records |
68 |
| 4.11 Background Checks |
69 |
| 4.12 Psychological Tests |
72 |
| 4.13 Fingerprinting |
72 |
| 4.14 Photographing |
72 |
| 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) |
73 |
| 5. Litigation Issues |
80 |
| 5.1 Special Rules for California Jury Trial |
80 |
| 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 |
113 |
| 5.13 Unfair Competition Claims |
115 |
| 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” |
126 |
| 5.17 Special Protections for Unauthorized Workers |
128 |
| 5.18 Employer’s Attorney-Client Privilege |
130 |
| 5.19 Limits to Protection for Attorney Work Product |
131 |
| 5.20 Employer’s Obligation to Withhold Taxes Due on Damages Judgment |
131 |
| 5.21 Can Employees Seeking Unpaid Wages Bring Tort Claims? |
131 |
| 6. Employment Discrimination Legislation and Litigation |
154 |
| 6.1 Comparing California Antidiscrimination Law with Federal Statutes |
154 |
| 6.2 Additional Protected Bases |
156 |
| 6.3 Special Rules for Disability Discrimination |
157 |
| 6.4 Special Rules for Age Discrimination |
162 |
| 6.5 Special Rules for Discriminatory Workplace Harassment |
162 |
| 6.6 Special Rules Relating to National Origin |
171 |
| 6.7 Equal Pay |
173 |
| 6.8 Pant Suits |
176 |
| 6.9 Special Rules for Gender, Gender Identity, and Gender Expression |
176 |
| 6.10 Special Rules for Religious Accommodation |
177 |
| 6.11 Special Rules for Retaliation |
178 |
| 6.12 Special Rules for No-nepotism Policies |
180 |
| 6.13 Difficulty in Obtaining Defendant’s Attorney Fees and Even Costs |
180 |
| 6.14 No Meaningful Duty to Exhaust Administrative Remedies |
181 |
| 6.15 Use of the Unfair Competition Law to Sue for Discrimination |
182 |
| 6.16 Disregard of Federal Evidentiary Doctrines |
182 |
| 7. Wage and Hour Laws |
195 |
| 7.1 Requirements Imposed by IWC Wage Orders |
196 |
| 7.2 Minimum Wages |
199 |
| 7.3 Pay For Hours Worked |
202 |
| 7.4 Computing Wages Owed |
207 |
| 7.5 Wage Payment Rules |
211 |
| 7.6 “White Collar” Exemptions from Wage Requirements |
215 |
| 7.7 Other Exemptions |
218 |
| 7.8 Meal Periods |
223 |
| 7.9 Rest and Recovery Breaks |
228 |
| 7.10 The “One Additional Hour of Pay” |
231 |
| 7.11 Suitable Seats and Comfortable Temperatures |
233 |
| 7.12 Restrictions on Having Employees Pay for Costs of Business |
236 |
| 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 |
248 |
| 7.18 Tips |
249 |
| 7.19 Vacation Pay |
250 |
| 7.20 Personal Liability for Wage and Hour Violations |
253 |
| 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? |
266 |
| 7.25 Civil Penalties |
268 |
| 7.26 Criminal Penalties |
297 |
| 8. Employee Benefits |
321 |
| 8.1 Domestic Partners |
321 |
| 8.2 Required Coverage |
322 |
| 8.3 Cal-COBRA |
323 |
| 8.4 Mandatory Employer-Funded Health Care |
324 |
| 8.5 Explanation Of Benefits |
325 |
| 8.6 CalSavers Retirement Savings Program |
326 |
| 8.7 Large Group Health Insurance |
327 |
| 8.8 Reproductive Health Rights |
327 |
| 8.9 Commuter Benefits |
327 |
| 8.10 San Francisco Healthy Airport Ordinance |
329 |
| 9. Special Posting, Distribution, and Notice Requirements |
333 |
| 9.1 Posting Requirements |
333 |
| 9.2 Distribution Requirements |
336 |
| 10. Employee Access to Personnel Records |
340 |
| 10.1 Personnel Records |
340 |
| 10.2 Signed Employee Instruments |
340 |
| 10.3 Shopping Investigator’s Report |
341 |
| 10.4 Payroll Records |
341 |
| 11. Employer Retention of Records |
343 |
| 12. Covenants Not to Compete |
345 |
| 12.1 General Prohibition |
345 |
| 12.2 Implications for Wrongful Termination |
348 |
| 12.3 “No Rehire” Clauses |
348 |
| 12.4 Permissible Contractual Restrictions |
349 |
| 12.5 Protection of Trade Secrets |
351 |
| 12.6 Preventing Data Theft with the Computer Fraud and Abuse Act? |
352 |
| 12.7 California Penal Code Section 502: An Alternative to the CFAA |
353 |
| 13. Procedural Quirks Regarding Termination of Employment and Post-Termination |
357 |
| 13.1 Cal-WARN Act |
357 |
| 13.2 Notices Required |
359 |
| 13.3 Final Pay Checks |
360 |
| 13.4 Separation Agreements |
361 |
| 13.5 Worker Retention Laws |
363 |
| 14. Health and Safety Law |
366 |
| 14.1 Injury and Illness Prevention Program |
366 |
| 14.2 “Be a Manager, Go to Jail” Act |
366 |
| 14.3 Proposition 65 |
366 |
| 14.4 Cal/OSHA Hazard Communication Standards |
366 |
| 14.5 Anti-Retaliation Provisions |
366 |
| 14.6 Tobacco Smoking |
367 |
| 14.7 Drug-free Workplace |
367 |
| 14.8 Repetitive Motion Injuries (RMIs) |
367 |
| 14.9 “Hands off that Smartphone!” |
367 |
| 14.10 UCL Actions for Cal/OSHA Violations |
367 |
| 14.11 Injury & Illness Recordkeeping and Reporting |
368 |
| 14.12 Single-User Restrooms |
368 |
| 14.13 Workplace Violence Requirements for Health Care Providers |
369 |
| 14.14 Electronic Submission of Cal/OSHA Forms |
369 |
| 14.15 Valley Fever Training—”There’s Fungus Among Us!” |
369 |
| 14.16 Wildfire Smoke Protection |
369 |
| 14.17 Protection From Covid-19 |
370 |
| 14.18 Beefed Up Enforcement |
370 |
| 14.19 Workplace Violence Prevention Plan Requirements in 2024 |
371 |
| 14.20 Changing Standard For Protection From Indoor Heat-Related Illness and Injury |
372 |
| 15. Unemployment Compensation |
374 |
| 15.1 Conditions for Eligibility |
374 |
| 15.2 Ineligibility and Disqualification |
374 |
| 15.3 The Claims Process |
375 |
| 16. Employer Reporting, Disclosure Requirements |
378 |
| 16.1 New Hires |
378 |
| 16.2 Retention of Independent Contractors |
379 |
| 16.3 Itemized Wage Statements |
379 |
| 16.4 Executive Compensation |
385 |
| 16.5 Filing Job Applications |
385 |
| 16.6 EITC Information |
385 |
| 17. Workers’ Compensation |
389 |
| 17.1 Jurisdiction |
389 |
| 17.2 Disability Discrimination |
389 |
| 17.3 Privacy Implications |
389 |
| 17.4 Workers’ Compensation Preemption |
389 |
| 17.5 Compensation Implications |
390 |
| 17.6 Good Faith Personnel Actions |
390 |
| 17.7 Temporary Labor |
390 |
| 17.8 Coverage of Employees Only |
390 |
| 17.9 Discrimination Against Injured Workers—Labor Code § 132a |
391 |
| 17.10 Covid-19 |
391 |
| 18. Rights of Organized Labor |
393 |
| 18.1 Agricultural Workers |
393 |
| 18.2 Anti-Injunction Laws Regarding Mass Picketing |
394 |
| 18.3 Regulating Advertising for Strike-Breakers |
395 |
| 18.4 Gag Orders for State Government Contractors |
395 |
| 18.5 Right to Leaflet in Private Shopping Malls |
395 |
| 18.6 Access to Private Employee Information |
396 |
| 18.7 Collective Bargaining Agreement Waiver Issues |
396 |
| 19. Independent Contractors |
399 |
| 19.1 The Plaintiff’s Preference for Employee Status |
399 |
| 19.2 Presumptions of Employment in Various Contexts |
400 |
| 19.3 Inversion of Common Law Standards in Standard Jury Instruction |
401 |
| 19.4 Absence of Statutory Protection as to Newspaper Carriers |
402 |
| 19.5 California’s Judicial Revolution Against Independent Contracting |
402 |
| 19.6 California’s “ABC Test” |
403 |
| 19.7 The Codification and Extension of Dynamex in AB 5 |
404 |
| 19.8 Professional Cheerleaders Must Be Employees |
407 |
| 19.9 Special Reporting Requirements |
408 |
| 19.10 Administrative Enforcement |
408 |
| 19.11 Special Penalties for Willful Misclassification |
408 |
| 19.12 Dealing with Certain Labor Contractors |
408 |
| 20. Miscellaneous Statutory Provisions |
413 |
| 20.1 Agreement to Illegal Terms of Employment |
413 |
| 20.2 Choice of Non-California Law or Non-California Forum in Employment Contracts |
413 |
| 20.3 Forced Patronage |
414 |
| 20.4 Restrictions on Employer Rights to Employee Inventions |
414 |
| 20.5 Child Labor |
414 |
| 20.6 Human Trafficking |
415 |
| 20.7 Garnishments |
415 |
| 20.8 Diverse Representation on Corporate Boards of Directors |
416 |
| 20.9 Pay For College Athletes |
417 |
| 21. Some Provisions Favoring California Employers |
419 |
| 21.1 Claims for Unlawful Tape Recording |
419 |
| 21.2 Workplace Harassment Orders |
419 |
| 21.3 Anti-SLAPP Motions |
419 |
| 21.4 Special Proof Required to Impose Punitive Damages |
420 |
| 21.5 Relatively Short Limitations Period |
421 |
| 21.6 Contractually Authorized Judicial Review of Arbitration Awards |
421 |
| 21.7 Use of E-Verify |
421 |
| 21.8 Non-Signatories Can Enforce Arbitration Agreements |
421 |
| 21.9 Employers Doing Business Within Federal Enclaves |
422 |
| 21.10 Sometimes a Quit Is Just a Quit |
423 |
| 21.11 Half Hour Deductions for Tardiness? |
423 |
| Conclusion |
424 |
| Index of Terms |
426 |
| Index of Statutory and Wage Order Provisions |
431 |