Written especially for HR professionals and business people, California Employment Law: An Employer’s Guide is the essential resource for avoiding the many perils and pitfalls California employers face. Comprehensively updated to address new developments, the 2019 Edition features:
- New independent contractor test
- New harassment training requirements
- Class-action waivers in arbitration agreements
- New rules on national origin discrimination
- Requirement that employees be paid for minimal preparation and concluding work
- Clarification of rules regarding salary history inquiries
- New NLRB standards for employee conduct policies
- Requirements for lawful time clock rounding
- Rules for rest break pay for commissioned and piece-rate employees
- New rules regarding lactation breaks
|Publisher:||Society For Human Resource Management|
|Product dimensions:||7.00(w) x 10.00(h) x 0.60(d)|
About the Author
James J. McDonald, Jr., J.D., SHRM-SCP, SPHR, is managing partner of the Irvine, California, office of the labor and employment law firm Fisher & Phillips LLP. He also teaches labor and employment law in the Human Resources Management Program at the Univ. of California, Irvine.
Read an Excerpt
California Employment Law: How Did This Become So Difficult?
It is often said that it is impossible for an employer to fully comply with all of California's employment laws. They are just too numerous and too complicated. They are frequently changing, and rarely for the better. There are so many traps for the unwary. Unfortunately, this is mostly true.
1.1 Why California Employment Laws Are So Difficult
Part of the problem is that California deems itself to be special. All the employment laws that serve the rest of the country just fine, such as Title VII of the Civil Rights Act, the Fair Labor Standards Act, and the Americans with Disabilities Act, are not considered adequate for California. Instead, California has its own versions of these laws — its own Labor Code, its own Fair Employment and Housing Act, and its own bureaucracies to enforce these laws. Sometimes these agencies interpret California law consistently with similar federal laws, sometimes not, and sometimes it is not really clear. California's wage and hour laws are among the most difficult to follow. Many of them were written by a body called the Industrial Welfare Commission, which no longer exists. In some instances they are enforced by the Division of Labor Standards Enforcement (aka the Labor Commissioner, or what many call the "Labor Board"). That agency has written a lengthy Enforcement Policies and Interpretations Manual that contains some useful hints on what the laws mean, but courts routinely refuse to follow it because it was never subjected to public notice and comment. The same goes for the opinion letters the Labor Commissioner issues occasionally. The courts' refusal is sometimes a good thing because the agency's positions are often not employer-friendly, but it leaves many employers scratching their heads as they try to figure out which interpretation of often-ambiguous laws they should follow.
Another part of the problem is the Private Attorneys General Act (PAGA). Enacted in 2004 because the legislature felt the Labor Commissioner lacked the resources to fully enforce California's wage and hour laws, the law deputized disgruntled employees and their lawyers as bounty hunters to extract penalties from unwary employers for violating obscure laws, some dating back to the 1800s. The penalties are supposed to be shared with the state, but no similar split is required for the attorneys' fees recovered, so PAGA lawsuits have become lucrative ventures for the plaintiffs' bar and an expensive headache for employers.
Unpredictable court decisions are part of the problem too. Clever lawyering by plaintiffs' attorneys and sympathetic judges occasionally produce abrupt changes in the way California's employment laws are interpreted. Court decisions finding that piece-rate workers must be paid at least minimum wage for the time they are not doing piece-rate work, and rejecting the long-applied (and common-sense) rule that employees need not be paid for the time they spend sleeping, are two examples. These decisions impose substantial retroactive liability on employers because they are premised on the notion that employers should have been complying with the new interpretation of the law all along.
Another part of the problem is that California has a full-time legislature. In states with part-time legislatures, legislators typically run businesses or work in jobs when the legislature is not in session, so they have some passing familiarity with the real world of work. California's legislators are not burdened with such distractions, so they stay busy churning out new laws. Many of these laws affect the workplace and make managing employees within the law that much more difficult. Recent examples include a law protecting undocumented immigrants who present fake documents to become employed and then present real ones later, and a law awarding an extra hour of pay to workers who work outside and can claim they did not get to spend enough time resting in the shade. It is almost as if every time somebody in the legislature says, "Hey, I have an idea!" it becomes law because employers have so little leverage in Sacramento. The premise behind most of these laws is that employees are commonly abused by bad employers and need ever more protections. So the legislature passes yet another law, which may or may not overlap previously enacted laws addressing the same evil. It is true there are some unscrupulous employers, but few in state government seem to heed the effect that this ever-thickening web of laws has on the vast majority of employers that are doing their best to comply.
1.2 Which Law?
Both federal and California law applies to California employers, but which law applies is not a difficult question. Whichever law is most favorable to employees is the law that applies. Ordinarily that will be California law but not always. This book will address the law that is applicable usually without specifically identifying it as state or federal unless the distinction is important. Also, in recent years some local governments in California have enacted ordinances regarding such matters as minimum wage and paid sick leave, and many of these laws apply not only to employers located in the jurisdiction but also to employees who work there even though their employer is located elsewhere. It is important, therefore, to determine whether any of these local laws will apply to your employees.
1.3 The Cost of Getting It Wrong
The stakes are high for California employers. A simple mistake can lead to a seven-figure jury verdict or a class action lawsuit.
One reason for this is that under California law, unlike under federal law, there are no limits on the amount of emotional distress damages and punitive damages that may be recovered in most employment lawsuits. There is no rational explanation for this beyond the influence of the plaintiffs' bar on the legislature. Is it really more traumatic to lose a job in California than in Indiana? The lack of damage limits often leads to outsized jury verdicts that courts are not likely to reduce except in extreme cases. When juries side with plaintiffs in employment cases, they often decide to make them millionaires — with the employer's money, of course.
California's overlapping laws are another reason employment lawsuits are more expensive in California. For example, let's say you terminate an employee who has been out on a medical leave for a long time and does not appear likely to return. You will probably be sued, not once but five times over, for: (a) disability discrimination, (b) failure to provide a reasonable accommodation, (c) failure to undertake the interactive process of accommodation, (d) failure to prevent discrimination, and (e) wrongful termination in violation of public policy. Each of these causes of action addresses the same termination decision, but they give a jury five separate grounds for awarding damages.
Numerous overlapping laws often apply in the wage and hour context as well. Suppose you pay your employees on a piece-rate basis, which is perfectly legal under federal law, and they earn well in excess of the minimum wage for all the hours they work. In California such a method of paying employees is illegal, however, if employees spend any part of their workdays not actually producing piece work. Virtually all piece-rate employees have downtime, such as training time, time spent waiting for a new assignment, and paid rest breaks. California courts have decided that these employees must be paid separately for these intervals in which they are not producing piece work. Dividing their total earnings by hours worked, as is done under federal law, will not suffice. Thus, almost every employer that has paid employees on a piece-rate basis has been (or is being) sued, but not just for unpaid minimum wage. Employees can also recover "liquidated damages" equaling the amount of unpaid minimum wage, plus interest and attorneys' fees. Former employees may also recover 30 days of pay as a "waiting time penalty" for not being paid all wages due when their employment terminated. In most wage and hour lawsuits, moreover, additional penalties are recoverable under PAGA.
Because wage and hour violations typically affect many employees, lawsuits for these violations are usually brought as class actions with the exposure for a particular error multiplied by the number of employees in the class. Class actions are a thriving industry in California. They started in the employment context with alleging that retail and restaurant managers were misclassified as exempt from overtime. Eventually most employers, some having been sued multiple times, properly classified their employees, so the class action lawyers moved on to attack missed meal and rest breaks. Then inaccurate paystubs became the focus, then piece-rate employees, and so on. As soon as employers get their houses in order with respect to one law, the class action lawyers switch their focus to another.
Even absent a class action lawsuit, simple mistakes can be costly. Say you have an employee who earns $52,000 annually. She quits her job, and when you calculate her accrued vacation due at termination, you erroneously undercalculate the amount due by a half day. That half day of vacation is worth $100. Suppose the former employee files a claim with the Labor Commissioner for unpaid vacation. She will likely be awarded the $100 plus $6,000 in waiting time penalties — $200 per day for each of the days (to a maximum of 30) that she had to wait to receive her $100.
1.4 This Book's Purpose and Approach
This book is written for those who must contend with employment law in California as part of their work. It is written primarily for business people and HR professionals, not lawyers, although in-house counsel and lawyers who practice outside of employment law will find it useful. The book's approach is practical. There is no lengthy analysis of court decisions, and there are no footnotes. This book is grounded in the law as it is found in statutes, regulations, and case law, but its focus is on how the law works in the real world.
This book is written from the perspective of a lawyer who has spent a career advising employers, so it has a point of view. The purpose of this book is to help those who must deal with California employment law understand it better, but this book does not provide legal advice. Most of the time the right legal answer depends on the facts of a specific situation. Although this book will provide you with an overview of the law, it is not the substitute for competent advice from a lawyer who is knowledgeable about your business and is fully apprised of the facts of a particular situation.CHAPTER 2
Employment at Will: What It Really Means
California's Labor Code contains a presumption that employees are employed at will. This means that either the employer or the employee may terminate employment at any time, with or without cause or prior notice. This is important for employers because "cause" is defined under California law as "a fair and honest cause or reason, regulated by good faith on the part of the employer." Employers would be significantly burdened if they had to prove to a court or jury that they acted "fairly" and "in good faith" in every employee termination.
2.1 Exceptions to Employment at Will
Exceptions to employment at will include:
Public-sector employees, most of whom are protected by civil service laws and/or by a "memorandum of understanding" between their union and the agency that addresses discipline and termination.
Employees represented by unions and covered by a collective bargaining agreement that contains a "just cause" standard for termination.
Employees (usually executives) who have written employment contracts requiring "good cause" for termination.
Employees whose employers have said or done things that overcome the presumption of employment at will.
Courts in some cases have found that employer policies or statements of managers have overcome the presumption of employment at will, such that an implied contract to be terminated only for good cause arose. One such policy is a rigid "progressive discipline" policy under which employees cannot be fired until a series of prior warnings and lesser sanctions have been imposed. Managers' assurances of secure or long-term employment might also be found to overcome the presumption of employment at will in some circumstances.
2.2 Reinforcing Employment at Will
California courts will not find employer policies and manager statements to overcome the presumption of employment at will when an employee has signed an express employment-at-will acknowledgment. To retain the freedom to terminate employment without cause that employment at will affords you, therefore, you should do everything you can do to preserve employment at will.
Include an employment-at-will statement on the employment application and in offer letters so that a prospective employee understands, before leaving another job or moving from out of state, that the new job will be employment at will.
Have new hires sign an employment-at-will acknowledgment on their first day.
Include an employment-at-will statement in the employee handbook.
Avoid rigid progressive discipline policies, and instead say that conduct violations "may lead to disciplinary action up to and including termination of employment."
Train managers and supervisors not to make careless assurances of job security during job interviews or in response to questions from employees or applicants.
When presented with an employment verification form in connection with a mortgage application, do not respond to questions asking about the employee's prospects for future employment.
2.3 The NLRB and Employment at Will
The National Labor Relations Board (NLRB) is vigilant regarding employer policies that may tend to interfere with employees' exercise of their right to engage in concerted activity for mutual aid and protection under Section 7 of the National Labor Relations Act (see Section 19.2 in this book). In one case, an NLRB judge found unlawful an employment-at-will statement that said that it could never be changed. The judge found fault with this statement because employees have the right to decide to be represented by a union, and most union labor agreements contain a clause requiring just cause for termination. In another case, however, the NLRB approved of an employment-at-will provision stating that it could be changed only in writing by the president of the company, noting that this language did not foreclose employees choosing to be represented by a union and having a collective bargaining agreement with a just cause termination standard that would be signed by the president of the company.
It is not clear how far the NLRB will go in scrutinizing employment-at-will provisions. For now, employers should heed the agency's concerns by including language stating that employment at will cannot be changed except in a writing signed by the company president (or similar official).
2.4 Employment at Will versus "Right to Work"
Sometimes employment at will is confused with the "right to work." They are different concepts, however. In states with right to work laws, union-represented employees cannot be forced to pay union dues or fees as a condition of employment. California is not a right to work state, so the term has no significance in California employment law.
2.5 The Limits of Employment at Will
Employment at will simply means that an employer cannot be sued for breach of an implied contract requiring a showing of good cause for termination. It does not mean that an employer may not be sued for other employment wrongs, such as discrimination, retaliation, violations of specific statutes (including those protecting whistle-blowers or employees who take family or medical leave) or for terminations that violate public policies set forth in statutes or regulations.
Employers should do everything they can to preserve employment at will. It is not a good idea, though, to tell an employee only that "we are exercising our employment-at-will rights and terminating you." Because there are so many other grounds for employee lawsuits, you should still be sure to document the reasons for terminating an employee. This includes providing prior warnings, when appropriate, for poor job performance and less serious types of misconduct such as attendance policy violations. These warnings should not be given pursuant to a formal progressive discipline policy but rather simply to establish that misconduct or performance issues occurred and that the employee was put on notice of them, to rebut a later claim that the termination was motivated by an unlawful reason such as discrimination or retaliation.(Continues…)
Excerpted from "California Employment Law"
Copyright © 2019 James J. McDonald, Jr..
Excerpted by permission of Society for Human Resource Management.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.
Table of Contents
Chapter 1 California Employment Law: How Did This Become So Difficult? 1
1.1 Why California Employment Laws Are So Difficult 1
1.2 Which Law? 2
1.3 The Cost of Getting It Wrong 2
1.4 This Book's Purpose and Approach 4
Chapter 2 Employment at Will: What It Really Means 5
2.1 Exceptions to Employment at Will 5
2.2 Reinforcing Employment at Will 5
2.3 The NLRB and Employment at Will 6
2.4 Employment at Will versus "Right to Work" 6
2.5 The Limits of Employment at Will 7
Chapter 3 Arbitration of Employment Disputes 9
3.1 Why Arbitration Is a Good Idea 9
3.2 Potential Negatives Regarding Arbitration 11
3.3 Enforceability of Arbitration Agreements 11
3.4 Requiring Arbitration as a Condition of Employment 12
3.5 Use of Arbitration Agreement to Block Class Actions 12
3.6 Arbitration of PAGA Claims 13
3.7 The Franken Amendment 13
3.8 Implementation of Arbitration Agreements 13
Chapter 4 Employee Handbooks 17
4.1 Introductory Language 17
4.2 Employment at Will 18
4.3 Introductory Period 18
4.4 Equal Employment Opportunity 19
4.5 Policy Against Harassment 19
4.6 Policy Against Retaliation 21
4.7 Employee Definitions 22
4.8 Overtime 22
4.9 Meal Periods 22
4.10 Rest Breaks 23
4.11 Lactation Breaks 24
4.12 Paid Holidays 24
4.13 Paid Vacation 24
4.14 Paid Sick Leave 25
4.15 Family and Medical Leave Act/California Family Rights Act Leave 26
4.16 Other Medical Leaves 28
4.17 Pregnancy Leave 29
4.18 New Parent Leave 29
4.19 Bereavement Leave 29
4.20 Jury Duty Leave 30
4.21 Military Service Leaves 30
4.22 Other Required Leaves of Absence 30
4.23 Electronic Communications 31
4.24 Confidentiality 32
4.25 Social Media 32
4.26 Other Rules of Conduct 33
4.27 Open Door Policy 38
4.28 Arbitration of Disputes 38
Chapter 5 Employees or Independent Contractors? 39
5.1 Determining the Proper Classification 39
5.2 The Consequences of Misclassifying Employees as Contractors 42
5.3 Minimize Your Exposure with Independent Contractors 44
5.4 Other Issues Involving Independent Contractors 45
Chapter 6 The Hiring Process 47
6.1 The Importance of a Current Job Description 47
6.2 Where to Recruit 48
6.3 Staffing Agencies and "Temp-to-Hire" Employees 48
6.4 The Employment Application 48
6.5 Criminal Record Inquiries 49
6.6 Megan's List 53
6.7 Interviewing Job Candidates 53
6.8 Salary History 54
6.9 The Use of Social Media to Screen Applicants 55
6.10 Testing of Candidates 55
6.11 Polygraph Testing 55
6.12 Pre-Employment Drug Testing 55
6.13 Background Checks 56
6.14 Reference Checks 58
6.15 Medical Examinations and Inquiries 59
6.16 Onboarding Documents 59
Chapter 7 Paying Employees Correctly 63
7.1 Sources of California Wage and Hour Laws 63
7.2 Coverage of California Wage and Hour Laws 64
7.3 Equal Pay 65
7.4 Minimum Wage 66
7.5 Piece-Rate Employees 68
7.6 Unpaid interns and Volunteers 69
7.7 Travel Time 70
7.8 Commuting Time 71
7.9 Preparation and Concluding Time 71
7.10 Education and Training Time 71
7.11 Sleeping Time 72
7.12 Reporting Pay 73
7.13 Split-Shift Pay 73
7.14 Shift-Differential Pay 74
7.15 On-Call Pay 74
7.16 Timeclock Rounding 74
7.17 Uniforms, Tools, and Equipment 75
7.18 Meal and Lodging Allowances 75
7.19 Tips 76
7.20 Commissions 76
7.21 Vacation 78
7.22 Reimbursement of Expenses 79
7.23 Paydays 80
7.24 Form of Wage Payment 80
7.25 Deductions from Wages 81
7.26 Wage Statements 83
7.27 Final Paycheck 84
7.28 Final Pay Tor Deceased Employee 85
Chapter 8 Overtime 87
8.1 Workday 88
8.2 Workweek 88
8.3 Regular Rate 88
8.4 Payment of Overtime on Bonuses or Commissions 91
8.5 Overtime May Be Mandatory 92
8.6 Unauthorized Overtime 92
8.7 Makeup Time 92
5.8 Overtime for Domestic Workers 93
8.9 Alternative Workweeks 93
8.10 White-Collar Overtime Exemptions Generally 95
8.11 The Executive Exemption 97
8.12 The Administrative Exemption 98
8.13 The Professional Exemption 100
8.14 Computer Professionals 102
8.15 Outside Salespersons 103
5.16 Inside Salespersons 104
8.17 Truck Drivers 105
8.18 Bus, Taxi, and Limo Drivers 106
8.19 Employees Covered by a Collective Bargaining Agreement 106
Chapter 9 Meats, Breaks, Pants, and Seats: Other Rights of Employees 107
9.1 Meal Periods 107
9.2 Rest Breaks 109
9.3 Pay for Rest Breaks 109
9.4 Cool-Down Breaks 110
9.5 The Right to Wear Pants to Work 111
9.6 Suitable Seats 111
9.7 Day of Rest 111
9.8 Lactation Breaks 112
9.9 Illiterate Employees 113
9.10 Employees' Political Activities 113
9.11 Secret Shoppers 113
9.12 Smoke-Free Workplaces 113
9.13 Restrooms 113
9.14 Changing Rooms and Resting Facilities 113
Chapter 10 Employee Privacy Rights 115
10.1 Source of Privacy Rights 115
10.2 Personnel Records 115
10.3 Medical Information 117
10.4 Immigration Enforcement 118
10.5 Social Security Numbers 119
10.6 Searches of Employees and Their Possessions 119
10.7 Monitoring Telephone Conversations 120
10.8 Video and Audio Recording of Employees 120
10.9 GPS Tracking 121
10.10 Monitoring of E-mail, Internet Use, and Social Media 121
10.11 Drug and Alcohol Testing 121
10.12 Lawful Off-Duty Conduct 123
10.13 Defamation in the Employment Context 124
Chapter 11 Protecting Trade Secrets 127
11.1 Sale of Business Exception 127
11.2 Out-of-State Noncompete Agreements Not Enforceable in California 128
11.3 Unlawful to Require Employee to Sign a Noncompete Agreement 128
11.4 Lawful Means of Protecting Trade Secrets 128
11.5 Confidentiality Agreements 129
11.6 Hiring Employees of a Competitor 132
Chapter 12 Employment Discrimination 135
12.1 Age 136
12.2 Disability and Medical Condition 137
12.3 Gender 137
12.4 Genetic Information 138
12.5 Marital Status 139
12.6 Military or Veteran Status 139
12.7 National Origin or Ancestry 139
12.8 Race or Color 141
12.9 Religion 141
12.10 Sex 142
12.11 Sexual Orientation 144
12.12 Bona Fide Occupational Qualifications 144
Chapter 13 Harassment 145
13.1 The Legal Standards 145
13.2 Sexual Harassment 146
13.3 Co-Worker Dating and "Love Contracts" 147
13.4 Other Forms of Unlawful Harassment 148
13.5 Failure to Prevent Discrimination and Harassment 149
13.6 Drafting an Effective Policy Against Harassment 150
13.7 Harassment Training 150
Chapter 14 Accommodating Employees with Disabilities 153
14.1 Who Is Disabled? 153
14.2 "Qualified" 156
14.3 Essential Job Functions 156
14.4 Reasonable Accommodation 157
14.5 "My Disability Made Me Do It!"-Accommodation of Misconduct 161
14.6 The Interactive Process 161
14.7 Direct Threat 163
14.8 Disability Discrimination and Workers' Compensation 163
14.9 Medical Exams and Inquiries 164
Chapter 15 Leaves of Absence 167
15.1 Family and Medical Leave Act/California Family Rights Act Leave 167
15.2 New Parent Leave 176
15.3 State Disability Insurance Benefits 176
15.4 Paid Family Leave 177
15.5 Pregnancy Disability Leave 178
15.6 Paid Sick Leave 180
15.7 Military Leave 183
15.8 Military Spouse Leave 184
15.9 Jury Duty or Witness Leave 184
15.10 Voting Leave 184
15.11 Leave for Victims of Crime 185
15.12 Leave for Victims of Domestic Violence, Sexual Assault, or Stalking 185
15.13 School Leaves 186
15.14 Volunteer Emergency Responder Leave 186
15.15 Civil Air Patrol Leave 187
15.16 Organ or Bone Marrow Donor Leave 187
15.17 Bereavement Leave 187
Chapter 16 Conducting Workplace Investigations 189
16.1 Legal Reasons for Conducting Careful Investigations of Workplace Misconduct 189
16.2 Initiating the Investigation 190
16.3 Selection of the Investigator 192
16.4 Placing the Accuser and/or the Accused on Paid Leave 192
16.5 Preparation for the Investigation 193
16.6 Conducting Interviews 194
16.7 Resolving Credibility Issues and Reaching a Conclusion 200
16.8 Use of Polygraph During Investigations 201
16.9 Taking Appropriate Corrective Action 202
16.10 Creating and Maintaining an Investigative File 203
Chapter 17 Avoiding Retaliation Claims 205
17.1 What Constitutes Retaliation 205
17.2 Who Can Claim Retaliation 205
17.3 Retaliation in Violation of Laws Against Discrimination and Harassment 205
17.4 Retaliation in Violation of Leave Laws 206
17.5 Retaliation in Violation of Whistle-Blower Laws 206
17.6 Wrongful Termination in Violation of Public Policy 208
17.7 Avoiding Retaliation Claims 209
Chapter 18 Rightful Terminations 211
18.1 Setting Up a Defensible Termination 211
18.2 Severance Agreements 213
18.3 Reductions in Force 215
18.4 WARN Acts 216
18.5 Employee Resignations 218
18.6 Documents to Provide to Terminating Employees 219
18.7 Unemployment Insurance 219
Chapter 19 Unions and Labor Relations 223
19.1 Coverage of the NLRA 223
19.2 Employees' Rights Under the NLRA 223
19.3 Unfair Labor Practices Under the NLRA 224
19.4 The Process by Which Employees Select a Union as Their Bargaining Representative 225
19.5 Collective Bargaining 228
19.6 Strikes and Lockouts 229
19.7 Decertification and Withdrawal of Recognition 231
Appendix of Cited Cases 233
About the Author 251
Additional SHRM-Published Books 253
SHRMStore Books Approved for Recertification Credit 255