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

28 | 2022 Cal-Peculiarities ©2022 Seyfarth Shaw LLP  www.seyfarth.com 55 SB 688, 2019 bill amending Lab. Code § 1197.1. 56 For more information, se e http://www.edd.ca.gov ( visited Jun. 11, 2022). 57 Lab. Code §§ 226.8 and 2753. Penalties range from $5,000 to $25,000 per violation. 58 22 Cal. Code Regs § 4304-1. 59 22 Cal. Code Regs §§ 4304-2 to 4304-12. 60 AB 5, adding Lab. Code § 2750.3(a), which states: 2750.3. (a) (1) For purposes of the provisions of this code and the Unemployment Insurance Code, and for the wage orders of the Industrial Welfare Commission, a person providing labor or services for remuneration shall be considered an employee rather than an independent contractor unless the hiring entity demonstrates that all of the following conditions are satisfied: (A) The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact. (B) The person performs work that is outside the usual course of the hiring entity’s business. (C) The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed. 61 For more information, se e https://cuiab.ca.gov/ ( visited May. 26, 2022). UIAB decisions can have binding effect. In Happy Nails & Spa of Fashion Valley v. Su , 217 Cal. App. 4th 1459 (2013), ordered not officially published (Nov. 20, 2013), the Court of Appeal held that once the UIAB found that cosmetologists were independent contractors, the Labor Commissioner was collaterally estopped to pursue penalties on the basis that the workers were really employees. 62 Claxton v. Waters , 34 Cal. 4th 367 (2004) (standard preprinted form used to settle workers’ compensation claim releases only those claims within scope of the workers’ compensation system, and not claims asserted in separate civil actions); Camacho v. Target Corp. , 24 Cal. App. 5th 291 92018) (reversing summary judgment for employer as to statutory discrimination claims and tort claims; mandatory preprinted C&R form, amended since Claxton , does not release claims outside workers’ compensation system and expressly disclaims any intent to do so). A different result obtained in Jefferson v. Dep’t of Youth Auth. , 28 Cal. 4th 299, 304 (2002), only because there the parties in an attachment to their settlement agreement clearly expressed their intent to settle matters outside the scope of workers’ compensation. 63 For more information, se e www.dir.ca.gov/DWC ( visited Jun. 11, 2022). 64 8 Cal. Code Regs § 336. 65 8 Cal. Code Regs § 334. 66 8 Cal. Code Regs § 336(g). 67 For more information, se e http://www.dir.ca.gov/DOSH ( visited Jun. 11, 2022).