Cal-Peculiarities: How California Employment Law is Different 2022 Edition

©2022 Seyfarth Shaw LLP  www.seyfarth.com 2022 Cal-Peculiarities | 231 (A) The temperature maintained in each work area shall provide reasonable comfort consistent with industry-wide standards for the nature of the process and the work performed. (B) If excessive heat or humidity is created by the work process, the employer shall take all feasible means to reduce such excessive heat or humidity to a degree providing reasonable comfort. Where the nature of the employment requires a temperature of less than 60° F., a heated room shall be provided to which employees may retire for warmth, and such room shall be maintained at not less than 68°. (C) A temperature of not less than 68° shall be maintained in the toilet rooms, resting rooms, and change rooms during hours of use. (D) Federal and State energy guidelines shall prevail over any conflicting provision of this section. Enterprising plaintiffs’ lawyers, invoking PAGA, have sued companies to seek civil penalties for failing to maintain temperatures to “provide reasonable comfort with industry-wide standards.” No published case thus far has provided guidance on the provision. One welcome development in temperature jurisprudence has been a federal district court decision dismissing a Section 15 claim where the plaintiff could not cite an applicable “industry-wide standard” applying to temperature in the defendant’s business establishment . 316 7.12 Restrictions on Having Employees Pay for Costs of Business California employers must themselves incur all the costs incurred in the normal operation of business, without requiring employees to act as insurers against ordinary business losses. California courts thus have invalidated many wage deductions taken to cover business losses that have resulted from factors beyond the employee’s control or from simple employee carelessnes s. 317 The DLSE also has taken this positio n. 318 7.12.1 Employers cannot use wage deductions to cover business expenses Wage order upheld by California Supreme Court. Section 8 of most wage orders reads: “No employer shall make any deduction from the wage or require any reimbursement from an employee for any cash shortage, breakage, or loss of equipment, unless it can be shown that the shortage, breakage, or loss is caused by a dishonest or willful act, or by the gross negligence of the employee.” The Supreme Court upheld this provision in Kerr’s Catering Service v. Department of Industrial Relation s , 319 deciding that employers cannot make payroll deductions that would make employees financially responsible for business losses that did not result from the employees’ gross negligence or willful misconduct. The employees at issue sold food from lunch trucks. They earned wages plus a commission based on their sales, with the commission reduced by any cash shortages. Kerr’s Catering upheld the wage order on the rationale that the concept of protecting employees from wage deductions already existed in various Labor Code provisions: Section 221 forbids an employer to collect back from an employee wages already paid, and Sections 400-410 limit employers’ rights to seek cash bonds from employees. Rule against business-expense deductions applied to exempt employees. The DLSE has opined that the Labor Code itself, rather than just Section 8 of the wage orders, bars the deductions expressly barred by Section 8. That DLSE interpretation would mean that the anti-deduction rules protect exempt employees as well as the nonexempt employees protected by the wage orders . 320 Development of general concept. The concept stated in Kerr’s Catering —that California employers must not make employees insurers for general business losses—extends to other contexts, making certain commission and bonus plans suspect under California law (see §§ 7.15, 7.16).