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

About Our Graphics	i
Table of Contents	iii
Glossary	ix
Introduction	1
Preface to the 2022 Edition	13
1. California Employment Law Agencies	19
1.1 The Department of Fair Employment and Housing (DFEH), Enforcing the Fair Employment and Housing Act (FEHA)	19
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)	25
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	29
2.3 Family Care and Medical Leave	30
2.4 Paid Family Leave	33
2.5 Accommodation of Addicts and Individuals Who Cannot Read	34
2.6 Time Off for Court Appearances (Jury Duty, Witness Leave, etc.)	34
2.7 Crime Victim Accommodation	35
2.8 Time Off for Good Deeds and Training for Same	35
2.9 Voting Leave	35
2.10 School Parent Leave	35
2.11 Kin Care Leave	36
2.12 Military Leave	37
2.13 Military Spousal and Partner Leave	37
2.14 Paid Sick Leave	37
2.15 Paid Leave for Organ or Bone Marrow Donation	50
3. Employee Privacy—Protected Activities	59
3.1 Off-Duty, Off-Premises Lawful Conduct—Including Marijuana Use	59
3.2 Disclosure of Wages	59
3.3 Disclosure of Working Conditions	60
3.4 Right to Designate Counsel	60
3.5 Employee Whistleblowing	60
3.6 Refusal to Undergo Medical Treatment or Exam	63
3.7 Changing Personal Information	63
4. Employee Privacy—Protection From Intrusions	66
4.1 Drug Testing	66
4.2 Questions about Certain Arrests and Convictions	66
4.3 Polygraph Tests	68
4.4 HIV Testing	68
4.5 Genetic Testing	68
4.6 Tape Recording and Videotaping	68
4.7 Medical Records	69
4.8 Social Security Numbers and Other Personal Information	69
4.9 Security of Personal Information	70
4.10 Personnel Records	71
4.11 Background Checks	71
4.12 Psychological Tests	74
4.13 Fingerprinting	74
4.14 Photographing	75
4.15 Subcutaneous Identification Devices	75
4.16 Email Usage	75
4.17 California Consumer Privacy Act of 2018	75
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	100
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	107
5.9 Misrepresentation Claims	109
5.10 Employer Liability for Employee Torts	109
5.11 Employment Discrimination Litigation	110
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	114
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	130
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	153
6.1 Comparing California Antidiscrimination Law with Federal Statutes	153
6.2 Additional Protected Bases	155
6.3 Special Rules for Disability Discrimination	156
6.4 Special Rules for Age Discrimination	161
6.5 Special Rules for Discriminatory Workplace Harassment	162
6.6 Special Rules Relating to National Origin	170
6.7 Equal Pay	172
6.8 Pant Suits	174
6.9 Special Rules for Gender, Gender Identity, and Gender Expression	174
6.10 Special Rules for Religious Accommodation	175
6.11 Special Rules for Retaliation	176
6.12 Special Rules for No-nepotism Policies	178
6.13 Difficulty in Obtaining Defendant’s Attorney Fees and Even Costs	178
6.14 No Meaningful Duty to Exhaust Administrative Remedies	179
6.15 Use of the Unfair Competition Law to Sue for Discrimination	180
6.16 Disregard of Federal Evidentiary Doctrines	180
7. Wage and Hour Laws	193
7.1 Requirements Imposed by IWC Wage Orders	194
7.2 Minimum Wages	197
7.3 Pay For Hours Worked	200
7.4 Computing Wages Owed	204
7.5 Wage Payment Rules	207
7.6 “White Collar” Exemptions from Wage Requirements	211
7.7 Other Exemptions	214
7.8 Meal Periods	219
7.9 Rest and Recovery Breaks	223
7.10 The “One Additional Hour of Pay”	227
7.11 Suitable Seats and Comfortable Temperatures	229
7.12 Restrictions on Having Employees Pay for Costs of Business	231
7.13 Indemnification of Employee Expenses	233
7.14 Payment by Piece-Rate	235
7.15 Payment of Commissions	236
7.16 Bonuses	238
7.17 Hazard Pay	242
7.18 Tips	244
7.19 Vacation Pay	245
7.20 Personal Liability for Wage and Hour Violations	248
7.21 Broadened Definition of Employer?	250
7.22 Restrictions on Scheduling and Work Quotas	253
7.23 Worker Retention and Staffing Requirements	255
7.24 How Does California Law Affect Multi-State Employees?	258
7.25 Civil Penalties	261
7.26 Criminal Penalties	289
8. Employee Benefits	311
8.1 Domestic Partners	311
8.2 Required Coverage	312
8.3 Cal-COBRA	312
8.4 Mandatory Employer-Funded Health Care	313
8.5 Explanation Of Benefits	314
8.6 CalSavers Retirement Savings Program	315
8.7 Large Group Health Insurance	315
9. Special Posting, Distribution, and Notice Requirements	318
9.1 Posting Requirements	318
9.2 Distribution Requirements	321
10. Employee Access to Personnel Records	325
10.1 Personnel Records	325
10.2 Signed Employee Instruments	325
10.3 Shopping Investigator’s Report	326
10.4 Payroll Records	326
11. Employer Retention of Records	328
12. Covenants Not to Compete	329
12.1 General Prohibition	329
12.2 Implications for Wrongful Termination	331
12.3 “No rehire” clauses	331
12.4 Permissible Contractual Restrictions	332
12.5 Protection of Trade Secrets	334
12.6 Preventing Data Theft with the Computer Fraud and Abuse Act?	335
12.7 California Penal Code section 502: An Alternative to the CFAA	335
13. Procedural Quirks Regarding Termination of Employment and Post-Termination	339
13.1 Cal-WARN Act	339
13.2 Notices Required	341
13.3 Final Pay Checks	342
13.4 Separation Agreements	343
13.6 Worker Retention Laws	345
14. Health and Safety Law	348
14.1 Injury and Illness Prevention Program	348
14.2 “Be a Manager, Go to Jail” Act	348
14.3 Proposition 65	348
14.4 Cal/OSHA Hazard Communication Standards	348
14.5 Anti-Retaliation Provisions	348
14.6 Tobacco Smoking	349
14.7 Drug-free Workplace	349
14.8 Repetitive Motion Injuries (RMIs)	349
14.9 “Hands off that Smartphone!”	349
14.10 UCL Actions for Cal/OSHA Violations	349
14.11 Injury & Illness Recordkeeping and Reporting	350
14.12 Single-User Restrooms	350
14.13 Workplace Violence Requirements for Health Care Providers	351
14.14 Electronic Submission of Cal/OSHA Forms	351
14.15 Valley Fever Training—”There’s Fungus Among Us!”	351
14.16 Wildfire Smoke Protection	351
14.17 Protection From Covid-19	352
14.18 Beefed Up Enforcement	353
15. Unemployment Compensation	355
15.1 Conditions for Eligibility	355
15.2 Ineligibility and Disqualification	355
15.3 The Claims Process	356
16. Employer Reporting, Disclosure Requirements	359
16.1 New Hires	359
16.2 Retention of Independent Contractors	360
16.3 Itemized Wage Statements	360
16.4 Executive Compensation	366
16.5 Filing Job Applications	366
16.6 EITC Information	366
17. Workers’ Compensation	369
17.1 Jurisdiction	369
17.2 Disability Discrimination	369
17.3 Privacy Implications	369
17.4 Workers’ Compensation Preemption	369
17.5 Compensation Implications	370
17.6 Good Faith Personnel Actions	370
17.7 Temporary Labor	370
17.8 Coverage of Employees Only	370
17.9 Discrimination Against Injured Workers—Labor Code § 132a	371
17.10 Covid-19	371
18. Rights of Organized Labor	373
18.1 Agricultural Workers	373
18.2 Anti-Injunction Laws re Mass Picketing	374
18.3 Regulating Advertising for Strike-Breakers	375
18.4 Gag Orders for State Government Contractors	375
18.5 Right to Leaflet in Private Shopping Malls	376
18.6 Access To Private Employee Information	376
19. Independent Contractors	378
19.1 The Plaintiff’s Preference for Employee Status	378
19.2 Presumptions of Employment in Various Contexts	379
19.3 Inversion of Common Law Standards in Standard Jury Instruction	380
19.4 Absence of Statutory Protection as to Newspaper Carriers	381
19.5 California’s Judicial Revolution Against Independent Contracting	381
19.6 California’s “ABC Test”	382
19.7 The codification and extension of Dynamex in AB 5	383
19.8 Professional Cheerleaders Must Be Employees	386
19.9 Special Reporting Requirements	386
19.10 Administrative Enforcement	386
19.11 Special Penalties for Willful Misclassification	386
19.12 Dealing with Certain Labor Contractors	387
20. Miscellaneous Statutory Provisions	391
20.1 Agreement to Illegal Terms of Employment	391
20.2 Choice of Non-California Law or Non-California Forum in Employment Contracts	391
20.3 Forced Patronage	392
20.4 Restrictions on Employer Rights to Employee Inventions	392
20.5 Child Labor	392
20.6 Human Trafficking	393
20.7 Garnishments	393
20.8 Diverse Representation on Corporate Boards of Directors	394
20.9 Pay For College Athletes	394
21. Some Provisions Favoring California Employers	397
21.1 Claims for Unlawful Tape Recording	397
21.2 Workplace Harassment Orders	397
21.3 Anti-SLAPP Motions	397
21.4 Special Proof Required to Impose Punitive Damages	398
21.5 Relatively Short Limitations Period	399
21.6 Contractually Authorized Judicial Review of Arbitration Awards	399
21.7 Use of E-Verify	399
21.8 Non-Signatories Can Enforce Arbitration Agreements	399
21.9 Employers Doing Business Within Federal Enclaves	400
21.10 Sometimes a Quit is Just a Quit	401
21.11 Half Hour Deductions for Tardiness?	401
Conclusion	402
Index of Terms	404
Index of Statutory and Wage Order Provisions	409

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