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

26 | 2022 Cal-Peculiarities ©2022 Seyfarth Shaw LLP  www.seyfarth.com 1.10 Division of Occupational Safety and Health (DOSH) The DOSH protects workers and the public from safety hazards by enforcing occupational and public safety laws and providing information and consultative assistance to employers, workers, and the public about workplace and public safety matters. The DOSH, through the Cal/OSHA Enforcement Unit, inspects California workplaces based on worker complaints, accident reports, and high hazard industries. Penalties for Cal/OSHA violations are assessed per citation, and can run from several hundred dollars to tens of thousands of dollars . 64 DOSH has amended its regulations to (1) increase the “look back” period from three years to five years to determine if there is a “repeat” violation of a safety order, (2) allow a repeat citation for any prior employer violations in the state (as opposed to repeat citations to a fixed establishments or within the region for businesses that have no fixed establishments), and (3) allow a repeat citation for a substantially similar violation, hazard, or condition (as opposed to the “same violation” under former law) . 65 DOSH’s broader authority to issue repeat citations could have significant ramifications for employers, in that penalties for repeat citations can reach $132,765 per violation . 66 The Occupational Safety and Health Appeals Board, a three-member quasi-judicial body appointed by the Governor and confirmed by the Senate, handles appeals from private and public sector employers regarding citations issued by DOSH for alleged violations of workplace safety and health laws and regulations . 67 1 For more information, se e www.ca.gov ( visited Jun. 11, 2022). 2 Historically, disability discrimination complaints have been the most common, followed by retaliation, race and gender discrimination, and sexual harassment. For more information, se e www.dfeh.ca.gov ( visited Jun. 11, 2022). 3 The old FEHC, as one of its last acts, promulgated December 2012 regulations on disability (2 Cal. Code Regs §§ 7293.5–7294.4) and pregnancy (2 Cal. Code Regs §§ 7291.2–7291.18). 4 Dep’t of Fair Employment & Housing v. Am. Pac. Corp., No. 34-2013-00151153-CU-CR-GDS, Sacramento County Superior Court (Mar. 13, 2014). 5 Cheng v. WinCo Foods LLC, No. 14-CV-0483-JST, 2014 WL 2735796 (N.D. Cal. June 11, 2014). 6 2 Cal. Code Regs §§ 11029-11030. 7 2 Cal. Code Regs § 11028. 8 2 Cal. Code Regs § 11028(g). 9 2 Cal. Code Regs § 11024. 10 2 Cal. Code Regs §§ 11023(b), (c). 11 2 Cal. Code Regs § 11023(a). 12 For more information, se e www.labor.ca.gov ( visited Jun. 11, 2022). 13 Lab. Code § 1173. 14 See California Labor Federation v. IWC , 63 Cal. App. 4th 983 (1998). 15 Mendiola v. CPS Security Solutions, Inc. , 60 Cal. 4th 833, 838 n.6 (2015). Se e www.dir.ca.gov/iwc/wageorderindustries.htm ( visited Jun. 11, 2022). 16 Lab. Code § 21. 17 Some industries historically have heavily relied on immigrant labor. California has enacted measures in recent years to protect immigrant workers (see §§ 3.5.8, 5.17, 6.6). 18 The campaign targets workers in low-wage industries (e.g., agriculture, garment, construction, and hospitality) and uses numerous languages to better reach immigrant workers. The websites, in English and Spanish, ar e www.wagetheftisacrime.com a nd www.robodesueldoesuncrimen.com ( visited Jun. 11, 2022). 19 SB 306, codified in Labor Code §§ 98.74, 1102.61, 1102.62 and amending Labor Code § 98.7(b)(2). 20 See Lab. Code §§ 98(a) and 98.3. 21 Lab. Code § 98. 22 Lab. Code § 98(a).