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California employers routinely conduct background checks, but it’s crucial to understand your rights regarding these checks. What makes a background check legal versus one that crosses the line? That’s the key question we’ll explore here.
Employment Background Checks in California: What’s Legal & What’s Not Read More
Employers can now monitor workers, investigate applicants, and screen current employees more easily than before. Fortunately, California provides strong employee privacy protections. This guide will help you understand when an employer’s actions might cross the legal line, and what you can do to protect your rights.
California Privacy Laws in the Workplace: Understanding Your Rights Read More
This Privacy Policy describes our policy and procedures on the collection, use, and disclosure of information that you provide or that we collect from you when you visit our website. By using our website, you consent to our use of your information in the manner we describe below.
We may collect information about you in several different ways. First, if you fill out a contact form on our website, we will ask for certain personal details which may include your name, email, phone number, location, and other information. Second, our website automatically gathers information about our visitors using tools like cookies, web beacons, and analytics tools.
A cookie is a small piece of data that a website places on your computer or device, with a copy stored securely on the website server. It’s like a digital memo, helping the website remember, for example, your preferred settings, the contents of your shopping cart, or information that you have filled out. We also use cookies to gather data about how visitors use our site, which helps us improve our content and make it more relevant.
Cookies don’t store sensitive information like your name or contact information, unless you’ve specifically provided them. They do record your IP address, which generally is linked to a specific geographical region. Cookies may also track which pages you visit, your browser type and version, the date and time of your visit, the duration of your visit, and other diagnostic data which may include a unique device identifier. If you prefer, most browsers contain a setting that disables cookies. You can also explore browser extensions that give you even more control over how websites use cookies. Our website uses cookies unless you have specifically configured your browser in a way that prevents it from doing so.
We may also utilize web beacons, also referred to as pixels. Pixels enable us to track, for example, how many individuals open a web link contained in an email or a social media post. We may also use pixels to help verify our site’s system and server integrity. This type of tracking does not entail the storage of any personal information.
Finally, we may use analytics tools including Google Analytics and Google Search Console in order to help us understand how you and other visitors come to and interact with our site. These tools collect information sent by your browser, which may include how you visited our site (typing the site URL into your browser bar, using a search engine, or social media, for example) and which search terms you used. More information is available from Google about what information it collects and how it shares that information. If you want to prevent Google Analytics from gathering data about your visit, Google offers an add-on compatible with various browsers.
We take your privacy very seriously, and we use secure website hosting and data storage with multiple layers of data protection. In general, none of the personal information that you provide, or that we collect, will be shared with any individual who is not employed by our firm or a service provider for our firm.
When we use third party service providers, we disclose only the personal information that is necessary for the operation of our business, and we do not permit these providers to use your information for their own direct marketing. Non-personally identifiable visitor information may be provided to other parties to assist in our own marketing or for other uses.
Under certain circumstances, we may be required to disclose your personal data by law or in response to valid requests by public authorities (i.e. a court or a government agency). We may also disclose your personal data in the good faith belief that such action is necessary to comply with a legal obligation or protect against legal liability.
We will only retain your data for as long as is necessary for the purposes set out in this Privacy Policy, or to whatever extent is necessary to comply with our legal obligations, resolve disputes, and enforce our legal agreements and policies.
Your information, including your personal data, is processed at our operating offices and in any other places where the parties involved in the processing are located. This means that your information may be transferred to — and maintained on — computers located outside of your jurisdiction, where the data protection laws may differ from those in your jurisdiction. Your consent to this Privacy Policy followed by your submission of such information represents your agreement to that transfer.
We will take all reasonable steps to ensure that your data is treated securely and in accordance with this Privacy Policy. No transfer of your personal information will take place to an organization or a country unless there are adequate controls in place to ensure the security of that information.
We will not send you marketing emails, SMS messages, or other marketing materials without your explicit consent. However, by providing your email address or phone number, you do authorize us to contact you about any legal matters that you have discussed with us or might want to discuss.
The following applies only to residents of California. California’s Online Privacy Protection Act (CalOPPA) requires us to have a clear privacy policy on our website because we collect Personally Identifiable Information (PII). This policy must explain exactly what information we gather and who we might share it with.
Under CalOPPA, we agree to the following:
At this time, our website does not respond to “Do Not Track” signals from your web browser.
If you have any other questions about Lohr Ripamonti PC’s Privacy Policy or about our practices regarding information privacy, please contact us by email (info@laborlawyers.us) or mail:
Lohr Ripamonti PC
140 Geary Street, 7F
San Francisco, CA 94108
This Privacy Policy describes our policy and procedures on the collection, use, and disclosure of information that you provide or that we collect from you when you visit our website. By using our website, you consent to our use of your information in the manner we describe below.
We may collect information about you in several different ways. First, if you fill out a contact form on our website, we will ask for certain personal details which may include your name, email, phone number, location, and other information. Second, our website automatically gathers information about our visitors using tools like cookies, web beacons, and analytics tools.
A cookie is a small piece of data that a website places on your computer or device, with a copy stored securely on the website server. It’s like a digital memo, helping the website remember, for example, your preferred settings, the contents of your shopping cart, or information that you have filled out. We also use cookies to gather data about how visitors use our site, which helps us improve our content and make it more relevant.
Cookies don’t store sensitive information like your name or contact information, unless you’ve specifically provided them. They do record your IP address, which generally is linked to a specific geographical region. Cookies may also track which pages you visit, your browser type and version, the date and time of your visit, the duration of your visit, and other diagnostic data which may include a unique device identifier. If you prefer, most browsers contain a setting that disables cookies. You can also explore browser extensions that give you even more control over how websites use cookies. Our website uses cookies unless you have specifically configured your browser in a way that prevents it from doing so.
We may also utilize web beacons, also referred to as pixels. Pixels enable us to track, for example, how many individuals open a web link contained in an email or a social media post. We may also use pixels to help verify our site’s system and server integrity. This type of tracking does not entail the storage of any personal information.
Finally, we may use analytics tools including Google Analytics and Google Search Console in order to help us understand how you and other visitors come to and interact with our site. These tools collect information sent by your browser, which may include how you visited our site (typing the site URL into your browser bar, using a search engine, or social media, for example) and which search terms you used. More information is available from Google about what information it collects and how it shares that information. If you want to prevent Google Analytics from gathering data about your visit, Google offers an add-on compatible with various browsers.
We take your privacy very seriously, and we use secure website hosting and data storage with multiple layers of data protection. In general, none of the personal information that you provide, or that we collect, will be shared with any individual who is not employed by our firm or a service provider for our firm.
When we use third party service providers, we disclose only the personal information that is necessary for the operation of our business, and we do not permit these providers to use your information for their own direct marketing. Non-personally identifiable visitor information may be provided to other parties to assist in our own marketing or for other uses.
Under certain circumstances, we may be required to disclose your personal data by law or in response to valid requests by public authorities (i.e. a court or a government agency). We may also disclose your personal data in the good faith belief that such action is necessary to comply with a legal obligation or protect against legal liability.
We will only retain your data for as long as is necessary for the purposes set out in this Privacy Policy, or to whatever extent is necessary to comply with our legal obligations, resolve disputes, and enforce our legal agreements and policies.
Your information, including your personal data, is processed at our operating offices and in any other places where the parties involved in the processing are located. This means that your information may be transferred to — and maintained on — computers located outside of your jurisdiction, where the data protection laws may differ from those in your jurisdiction. Your consent to this Privacy Policy followed by your submission of such information represents your agreement to that transfer.
We will take all reasonable steps to ensure that your data is treated securely and in accordance with this Privacy Policy. No transfer of your personal information will take place to an organization or a country unless there are adequate controls in place to ensure the security of that information.
We will not send you marketing emails, SMS messages, or other marketing materials without your explicit consent. However, by providing your email address or phone number, you do authorize us to contact you about any legal matters that you have discussed with us or might want to discuss.
The following applies only to residents of California. California’s Online Privacy Protection Act (CalOPPA) requires us to have a clear privacy policy on our website because we collect Personally Identifiable Information (PII). This policy must explain exactly what information we gather and who we might share it with.
Under CalOPPA, we agree to the following:
At this time, our website does not respond to “Do Not Track” signals from your web browser.
If you have any other questions about Lohr Ripamonti PC’s Privacy Policy or about our practices regarding information privacy, please contact us by email (info@laborlawyers.us) or mail:
Lohr Ripamonti PC
140 Geary Street, 7F
San Francisco, CA 94108
Punitive damages stand as a legal remedy distinct from compensatory damages, which are intended to address actual losses. They are designed not to compensate the plaintiff but to punish the defendant for particularly egregious or reprehensible conduct and to deter similar conduct in the future. In the legal framework, punitive damages serve as a financial deterrent against gross negligence, malice, fraud, or willful misconduct.
The imposition of punitive damages is subject to stringent legal standards, particularly because they go beyond mere compensation. In California, as in many jurisdictions, punitive damages can only be awarded if the plaintiff proves by clear and convincing evidence that the defendant engaged in conduct with malice, oppression, or fraud. This is a higher standard of proof than the preponderance of evidence required for most civil claims, reflecting the seriousness of imposing such damages.
In the employment context, punitive damages might be awarded if an employer’s actions towards an employee are particularly vile or egregious. For instance, if an employer discriminates, harasses, or retaliates against employees in a manner that is especially malicious, oppressive, or widespread, punitive damages might be deemed appropriate.
Vicarious liability encapsulates the principle that employers may be held responsible for the actions of their employees when such actions occur within the scope of employment. This concept is rooted in the notion that the employment relationship confers certain risks onto the employer, who benefits from the employee’s work.
The underpinnings of vicarious liability in California are found in the state’s civil jury instructions, which articulate that an employer is vicariously liable for a wrongful act committed by an employee when that act is unintentionally committed while performing tasks on behalf of the employer or during activities that are closely related to their duties. The legal rationale is that the employment context inherently includes the delegation of authority by an employer to an employee, thereby making the employer indirectly responsible for the employee’s actions during their work.
Moreover, California law extends this liability to cover not only actions taken within an employee’s official job duties but also those within the reasonable expectations of the employment. For example, an employer might be held liable for the negligent driving of an employee who is making deliveries as part of their job duties.
However, vicarious liability is not absolute; it does not extend to actions taken by an employee outside the scope of their employment, such as conduct that is purely personal in nature or actions taken after work hours that do not serve the employer’s interests.
The Genetic Information Nondiscrimination Act (GINA) represents a significant legislative step in safeguarding individuals from discrimination based on genetic information. This act was a response to the concerns that arose with the advancement of genetic testing, which brought forth the potential for misuse of genetic data, especially in the areas of health insurance and employment.
In the employment context, GINA provides a protective shield for employees and job applicants by making it illegal for employers to consider an individual’s genetic information when making decisions about hiring, promotion, compensation, or any other terms of employment. The act covers entities with 15 or more employees, including government bodies, thus casting a wide net of protection that integrates into the broader fabric of labor law.
Burden of proof refers to the responsibility of a party involved in a legal dispute to furnish evidence and substantiate the validity of their claims or defenses. In employment matters, plaintiffs (usually employees) generally bear the burden of proving their case. The standard is typically “preponderance of the evidence,” requiring the presenting party to show their position is more likely true than not.
However, the burden of proof can vary depending on the specific claim. Certain statutes may place specific burdens on employers, such as the requirement to prove exemptions under wage and hour laws. If the defendant (usually the employer) raises an affirmative defense in response to a plaintiff’s claims, the burden of proof shifts to the defendant. For example, the employer may admit that they performed an adverse action against an employee but argue that they did so for legitimate reasons, such as poor performance or business necessity. Various burden-shifting frameworks apply to different kinds of legal claims, so it’s important to consult with an attorney.
Job-protected leave refers to a set of legal provisions that ensure employees can take time off from work for certain qualifying reasons without the fear of losing their job or suffering adverse employment consequences. In essence, “protected” means that employees who meet the eligibility criteria and follow the necessary procedures for requesting leave are entitled to return to their job or a substantially equivalent position when they come back from their approved leave. They are also entitled to maintain their employer-provided healthcare benefits during their leave.
Protected leave often includes provisions for maintaining health benefits during the leave period and safeguards against retaliation or adverse employment actions. Employers are generally required to reinstate employees to their previous position or a substantially similar one with similar pay, benefits, and working conditions when they return from leave.
In California labor law, exempt employees are a specific classification of workers who are exempt from certain wage and hour laws, such as minimum wage, overtime pay, and meal and rest break requirements. This classification is based on the nature of the employee’s job duties, their salary level, and how they are paid. Exempt employees are typically referred to as “salaried” employees, as they receive a fixed salary rather than hourly wages.
The primary criteria for determining exempt status in California include the employee’s job duties and the minimum salary level they are paid. Exempt employees are typically engaged in professional, administrative, executive, or certain outside sales roles. These positions often involve managerial or specialized tasks, decision-making authority, or work that requires advanced knowledge or discretion. There are specific duties tests that each exempt classification must meet. These tests outline the types of tasks and responsibilities that qualify an employee for the exemption.
In addition to the job duties test, exempt employees must generally earn a salary equivalent to at least twice the state minimum wage for full-time employment, based on a 40-hour workweek.
In California labor law, the regular rate of pay is the hourly rate used to calculate overtime for nonexempt employees working more than a specified number of hours. It’s the foundation for determining overtime pay.
The regular rate of pay includes all compensation received from the employer, not just the base hourly wage. It also factors in elements like non-discretionary bonuses, commissions, shift differentials, and the value of certain benefits. This means overtime pay isn’t just a multiplier of the base wage but includes these extra forms of compensation.
However, some types of compensation are excluded from the regular rate of pay, such as discretionary bonuses, reimbursements, gifts, holiday pay, and certain paid leave.
In California labor law, nonexempt status refers to an employment classification where an employee is not exempt from the provisions of state and federal wage and hour laws. Nonexempt employees are typically entitled to labor protections such as minimum wage, overtime pay, meal and rest breaks, and other labor standards. An employee is assumed to be nonexempt unless the employer can prove that they should be exempt under an applicable legal test.
Wage discrimination is the illegal practice of paying employees differently for similar work based on their gender, race, or ethnicity. The California Equal Pay Act (Labor Code Section 1197.5) mandates equal pay for comparable work, regardless of gender, race, or ethnicity. “Comparable work” considers factors like skill, effort, responsibility, and working conditions.
California law also promotes pay transparency. Employers cannot stop employees from discussing wages or inquiring about coworker pay, and retaliation against employees asserting their rights under the Equal Pay Act is prohibited. Employees facing wage discrimination have a limited time to file a claim, typically within two years of the violation, or three years if the violation was willful.
The ABC test is used in California to determine if a worker is an employee or an independent contractor, impacting benefits, taxes, and labor protections. Employers must prove independent contractor status.
The test has three criteria:
(A) The worker is free from employer control, with autonomy over how, when, and how much they work.
(B) The worker performs tasks outside the employer’s usual business. For example, a bakery could hire an independent contractor web developer but not a cake decorator.
(C) The worker has their own independent business. A full-time web developer hired by a bakery might be considered an employee.
While the primary method, the ABC test isn’t the only way California courts determine worker classification. Exceptions exist, so consult an attorney if unsure about your classification.
Statutes of limitations set strict deadlines for employees to file claims for violations. Missing these deadlines can bar employees from seeking legal remedies, even in valid cases. These time limits encourage prompt reporting and resolution of issues, benefiting both employees and employers.
Employees must understand these statutes to protect their rights. Ignorance or neglect of deadlines can mean losing the chance to remedy a wrong. However, the statute of limitations may be “tolled” or paused in certain situations, such as when the employer actively misled the employee or if the violation was discovered later. Some violations, like ongoing wage theft, might be considered continuing violations, potentially extending the deadline. Filing a complaint with an agency like the California Labor Commissioner’s Office can also affect the statute of limitations.
In the context of California labor law, treble damages are a punitive measure where a court can award a plaintiff three times their actual damages suffered due to an employer’s violation of specific labor laws. This aims to compensate the employee and deter similar unlawful conduct by the employer and others.
Treble damages aren’t automatic for all labor law violations in California. They usually apply in cases involving especially egregious or willful misconduct by the employer. This provision is a powerful tool encouraging employer compliance with labor laws and incentivizing employees to take legal action.
In California, employees can sometimes sue their employers directly for labor law violations, a process known as a private right of action. This differs from relying on government agencies like the California Division of Labor Standards Enforcement (DLSE) to take action. However, not all labor law violations allow for private lawsuits.
While California provides various private rights of action for issues like unpaid wages, missed breaks, and misclassification, there might be specific procedures to follow before suing. These can include notifying the employer or filing a complaint with a state agency. It’s best to consult an employment lawyer to determine the available options for a specific situation.
In California labor law, chargeback provisions relate to the practice where an employer recoups, or “charges back,” advances on commissions or other forms of wages previously paid to an employee. These provisions are often incorporated into employment agreements that are sales-commission based, but they can also appear in other contexts.
According to the California Labor Code, once a commission has been earned, it becomes a wage that is protected by the state’s robust wage and hour laws. Employers cannot arbitrarily claw back wages, including commissions, once they are considered “earned.” However, under specific conditions laid out in the employment agreement, chargebacks may be permissible. For example, if a salesperson earns a commission for closing a sale and the sale later falls through (e.g., the customer cancels or returns the product), the employer may be able to charge back the advanced commission against future earnings, assuming this was clearly and expressly agreed upon in the employment contract.
Importantly, any such chargeback provision must be clearly described in the employment agreement and must conform to the requirements of California law.
The concept of a legal condition precedent is an event or action that must occur before a right, liability, or obligation becomes active. It’s a prerequisite that needs to be fulfilled before certain legal outcomes can happen.
In California labor law, conditions precedent are important in employment contracts and dispute resolution. For example, an employment contract might require an employee to complete an internal grievance process before filing a lawsuit. Similarly, many contracts include arbitration clauses, mandating that employees resolve disputes through arbitration before going to court. Failing to meet these conditions could prevent an employee from taking legal action.
California labor law also has statutory conditions precedent. For instance, before pursuing certain wage and hour claims, an employee may need to file a complaint with the California Labor Commissioner and allow them to attempt resolution. Failure to do so could lead to dismissal of a later lawsuit. To avoid disputes, conditions precedent should be clearly stated in contracts. In some situations, a party might waive a condition precedent, either explicitly or through their actions.
A legally enforceable contract is one that has binding obligations on all parties involved. To be enforceable, a contract generally needs to have capable parties, mutual consent, a lawful objective, and something of value exchanged between parties, known as “consideration.”
If any of these components are missing or if the contract violates existing laws or regulations, it may be deemed unenforceable. For example, if the contract violates California’s public policy, such as by including overly broad non-compete clauses that restrict employee mobility, it may not be upheld. Certain contracts, like those involving the sale of land or agreements that cannot be performed within one year, must be in writing to be enforceable under the Statute of Frauds. If both parties are mistaken about a fundamental fact related to the contract, or if one party misrepresents or conceals important information, it may be voidable. Additionally, a contract that is unconscionably one-sided, obtained under duress, or involves illegal activities will also be deemed unenforceable.
In California, employers may provide discretionary bonuses as a way to reward employees. These bonuses are entirely at the employer’s discretion, meaning they have complete control over whether to grant them, the amount, and the recipients. They often come as a surprise or reward for exceptional performance or contributions, such as holiday bonuses or gifts for special projects. A key feature of discretionary bonuses is that they are not included in the calculation of an employee’s regular rate of pay for overtime purposes. This means that when calculating overtime pay, the employer does not need to factor in any discretionary bonuses the employee may have received.
California’s Fair Chance Act, or “Ban the Box” law, promotes fair hiring practices for individuals with criminal records. It prohibits employers with five or more employees from inquiring about an applicant’s criminal history before making a conditional job offer.
Even after a conditional offer, employers must conduct an individualized assessment before denying employment based on criminal history, considering factors like the nature of the crime, time elapsed, and job relevance. If denying employment based on this assessment, the employer must provide written notice to the applicant, including a copy of the criminal history report and an opportunity to respond.
Exceptions exist for positions legally requiring background checks, such as law enforcement and childcare. The Fair Chance Act aims to remove employment barriers for individuals with criminal records by encouraging employers to evaluate candidates based on qualifications and skills rather than past convictions.
Compensatory damages are financial remedies designed to compensate employees for actual losses due to unlawful employment actions by their employers. These damages aim to restore the affected employee to the position they would have been in had the wrongful conduct not occurred.
In California, compensatory damages can arise from various labor law violations, including wage and hour violations, wrongful termination, discrimination, harassment, retaliation, and breaches of employment contracts. They cover both direct financial losses (e.g., unpaid wages) and intangible losses (e.g., emotional distress). In addition to covering actual losses, these damages may include interest on unpaid wages and other penalties as specified by California labor laws.
The California Labor and Workforce Development Agency (LWDA) oversees various departments and boards that administer and enforce California’s labor laws. The LWDA’s responsibilities are multifaceted. Its general mission is to improve working conditions, advance opportunities for profitable employment, and ensure fair treatment and proper compensation for all workers. Through its associated entities, the LWDA enforces labor laws, resolves disputes between employees and employers, conducts research to develop public policies, and offers training and other services to support workforce development.
Additionally, the LWDA coordinates with various state and local agencies to integrate services. It has a critical role in the enforcement of laws related to minimum wage, overtime, workplace safety, and workers’ compensation. It also works to address the needs of specific populations like veterans, farmworkers, and people with disabilities.
The Labor Code Private Attorneys General Act of 2004 (PAGA) is a California law that allows employees to file lawsuits against their employers for labor law violations. An aggrieved employee can file a civil suit to seek penalties on behalf of the state, acting as a private attorney general and representing the interests of all affected employees.
Before filing a PAGA lawsuit, the employee must notify both the employer and the Labor and Workforce Development Agency (LWDA) of the alleged violations. This notice gives the employer an opportunity to investigate and potentially cure the violations. If the employer fails to cure the violations and the PAGA claim is successful, up to 25% of the penalties are distributed among the aggrieved employees, with the specific amount depending on numerous factors. PAGA remains an important part of California’s labor law enforcement scheme, supplementing the efforts of the LWDA and incentivizing employer compliance.
The 2024 PAGA reforms made some key changes. Employees now have the option to pursue individual claims in court for many types of violations, seeking remedies directly for themselves. PAGA penalties have also been lowered to encourage early resolution of violations. In addition, employers now have an opportunity to cure certain violations to prevent a PAGA lawsuit, and the LWDA has a greater role in overseeing PAGA claims and enforcing labor laws. While PAGA still provides employees with a powerful tool to address labor law violations, the reforms aim to create a more balanced system that encourages individual accountability, provides employers with opportunities to correct violations, and strengthens the role of the state agency in enforcement.
Qui tam lawsuits empower private individuals to take legal action on behalf of the government. In California labor law, as well as other U.S. jurisdictions, these lawsuits have specific applications and functions.
Under the California False Claims Act (CFCA), qui tam actions allow whistleblowers, called “relators,” to sue individuals or entities suspected of defrauding government programs. These lawsuits typically involve allegations of fraudulent billing or overcharging for goods or services provided to the government.
When someone initiates a qui tam action, the lawsuit is initially filed under seal, allowing the government to investigate the claims. The California Attorney General’s Office, or the local prosecuting authority, reviews the evidence and decides whether to intervene. If the government intervenes, it takes over the case, though the whistleblower may still participate.
If the government declines to intervene, the whistleblower can proceed with the lawsuit on behalf of the state. This places significant responsibility on the relator but also offers potential financial rewards. If successful, the whistleblower may receive a percentage of the recovered funds, ranging from 15% to 50%, depending on factors like whether the government intervened.
The Equal Employment Opportunity Commission (EEOC) is a U.S. federal agency dedicated to workplace equality. It enforces laws prohibiting discrimination against job applicants and employees based on characteristics like race, color, religion, sex, national origin, age, disability, or genetic information. The EEOC specifically handles discrimination complaints from federal employees and applicants.
The EEOC investigates discrimination claims and attempts to resolve valid claims through conciliation. If this fails, the EEOC can file lawsuits on behalf of those discriminated against or issue a “right to sue” notice to the affected party.
Beyond enforcement, the EEOC shapes anti-discrimination policy through regulations, legal guidance, and involvement in court cases. This helps ensure consistent interpretation and application of anti-discrimination laws nationwide.
Specific performance is a legal remedy used in contract disputes. It’s an equitable remedy that compels a party to perform a specific act, usually as outlined in a contract. Unlike monetary damages, specific performance aims to fulfill the original agreement between parties.
However, specific performance is less common in California labor law. Employment relationships often involve personal services and ongoing interaction between employer and employee. Courts hesitate to force continued employment against either party’s will, as this could create a hostile or unproductive work environment.
There might be exceptions where specific performance is considered, such as when an employee has unique, irreplaceable skills, or when a contract includes clearly defined obligations. Even then, courts proceed cautiously due to the nature of employment relationships.
Adverse employment actions refer to employer actions that negatively impact an employee’s job status or employment conditions. Common examples include termination, demotion, reduction in pay, negative performance evaluations, changes in work assignments, or other actions that result in less favorable working conditions for an employee. Even actions that might seem minor on the surface can be considered adverse if they have a substantial negative impact on an employee’s work life.
These actions are not necessarily unlawful in and of themselves, but they can become the basis for legal claims if they are undertaken for prohibited reasons such as discrimination, retaliation, or harassment. Determining whether a particular action is adverse often involves a detailed examination of the facts of a particular situation. Factors such as the timing of the action, the reasons given by the employer, the treatment of other employees in similar roles, and the overall context of the employment relationship can all be relevant.
Intentional Infliction of Emotional Distress (IIED) is a legal claim in California that allows individuals to seek compensation for severe emotional harm caused by extreme and outrageous conduct. This conduct must go beyond ordinary insults or annoyances, reaching a level that is intolerable in a civilized society. It involves intentional or reckless disregard for the high probability of causing severe emotional distress.
In the workplace, IIED could involve actions by supervisors, coworkers, or the employer itself that are designed to severely belittle, threaten, or humiliate an employee. To succeed with an IIED claim in California, the employee must prove that the conduct was extreme and outrageous, intentionally or recklessly inflicted, and resulted in severe emotional distress. This requires strong evidence of both the harmful behavior and its severe impact on the victim.
While IIED claims can arise in various situations, workplace dynamics, with their inherent power imbalances, can make such claims both more common and more complex. Successful IIED claims can result in compensation for emotional distress, lost wages, and potentially punitive damages in particularly egregious cases.
California’s Investigative Consumer Reporting Agencies Act (ICRAA) regulates the use of investigative consumer reports, which may contain information about a person’s character, reputation, and lifestyle. These reports are also known as background checks. This law is relevant to employers because it sets strict guidelines for using these reports in hiring and employment decisions.
When seeking such reports, employers must provide clear notification to the individual, obtain their written consent, and adhere to other specific requirements. If an adverse action, such as not hiring or terminating an employee, is taken based on an investigative consumer report, the employer must follow strict procedures, including providing the individual with information about the report.
The ICRAA aims to ensure fair and transparent use of these reports in employment, protecting individuals’ privacy and rights. It’s important to note that California has other privacy laws, such as the California Consumer Privacy Act (CCPA) and the California Privacy Rights Act (CPRA), that may also apply to employment background checks, further strengthening employee protections.
The Fair Credit Reporting Act (FCRA) is a U.S. federal law regulating the collection, use, and sharing of consumer credit information. Enacted in 1970, it aims to protect consumer privacy and ensure that credit information is handled fairly, accurately, and transparently. The FCRA gives consumers the right to access and correct their credit reports and limits who can access this information and why.
The FCRA also applies to background checks performed by employers, so long as they use an outside agency to conduct the background check. The FCRA does not apply to employers who conduct their own background checks. These checks may include criminal history and other personal data. Under the FCRA, employers must obtain written consent before conducting a background check. If an employer plans to take adverse action (e.g., not hiring or firing) based on the report, they must provide the individual with a copy of the report and a summary of their FCRA rights beforehand, allowing reasonable time for the individual to dispute any inaccuracies. The FCRA also mandates that background check information be accurate and up-to-date, and consumers have the right to dispute and correct errors.
The California Privacy Rights Act (CPRA) was passed in November 2020 to expand and strengthen the existing California Consumer Privacy Act (CCPA) and became fully operative on January 1, 2023. It introduces new rights, such as the ability to correct inaccurate personal information and restrict the use of sensitive personal information.
The CPRA also creates a dedicated regulatory agency, the California Privacy Protection Agency, to enforce and implement privacy rights. It modifies definitions and thresholds related to businesses, adds stricter requirements for data minimization, and triples penalties for violations involving children’s data.
The California Consumer Privacy Act (CCPA) is a state law designed to enhance privacy rights and consumer protection for residents of California. The CCPA provides California consumers with the right to know what personal information is being collected about them, the reason for collecting it, and whether that information is sold or disclosed to third parties. These protections also extend to the employment relationship. Effective January 1, 2023, the CCPA was amended by the California Privacy Rights Act (CPRA) to provide even stronger protections.
In California, consumers (or employees) have the right to correct or request deletion of personal information, opt-out of the sale of personal information, and access their information in a portable format. Companies who don’t comply with the CCPA can face penalties, and consumers (or employers) can take legal action if their privacy rights are violated. Not all businesses are subject to the CCPA and CPRA, however. As of 2024, businesses must have made over $25 million/year in global revenue, derive more than 50% of their revenue from selling or sharing personal information, or buy, sell, or share the personal information of more than 100,000 Californians.
Injunctive relief is a court order requiring a party to either take a specific action (mandatory injunction) or stop a specific action (prohibitory injunction). This remedy is often sought in cases where monetary damages alone cannot adequately address the harm. Courts often use injunctions to prevent irreversible damage or maintain the current situation while legal proceedings are ongoing. For example, an injunction might be issued to immediately halt an activity that threatens to cause permanent damage to another party’s property.
Different types of injunctions exist, including temporary restraining orders, preliminary injunctions, and permanent injunctions. Generally, to obtain an injunction, the requesting party must demonstrate a strong likelihood of success in the case, the potential for irreparable harm if the injunction is not granted, that the benefits of the injunction outweigh any burdens it imposes, and that it serves the public interest. Injunctive relief is an equitable remedy, meaning it’s based on principles of fairness. The decision to grant an injunction rests with the court’s discretion, after careful consideration of all relevant factors.
The California Consumer Protection Against Computer Spyware Act, signed into law in 2004, represents California’s commitment to protecting consumers from deceptive and harmful spyware practices. Spyware is software that collects information from a user’s computer without their informed consent. This information can include personal details, browsing habits, and sensitive data, which may be used for malicious purposes like identity theft or fraud.
The California Consumer Protection Against Computer Spyware Act provides for civil penalties for those who violate the Act. This means that individuals or entities found to have engaged in prohibited spyware practices can face legal actions and monetary fines. The Act is enforced by the California Attorney General and local district attorneys, who can bring civil actions against violators. Penalties can include fines and injunctions. In addition to government enforcement, the Act provides a private right of action, allowing individuals who have been harmed by spyware to sue for damages.
Importantly, the Act focuses on practices that are deceptive or undertaken without the informed consent of the user. Software that legitimately collects user information (for example, for diagnostic or performance improvement purposes) may still be permissible under the Act, provided that it complies with appropriate disclosure and consent requirements. However, employers who do not follow those requirements may be liable.
In California privacy law, two-party consent is enshrined in California Penal Code Section 632. It means that everyone participating in a confidential conversation must agree to the recording.
While there are limited exceptions, such as when law enforcement has a warrant or when recording is necessary for public safety, businesses, organizations, and individuals must generally adhere to this law when recording phone calls or private conversations. Failure to do so can result in both criminal and civil penalties.
In the workplace, employees have a reasonable expectation of privacy in their communications, and employers must obtain consent before recording them. In legal proceedings, recordings made without all parties’ consent may be inadmissible as evidence, potentially impacting the outcome of criminal cases, civil disputes, and employment matters.
The compelling state interest test is a legal standard used to evaluate certain restrictions or regulations that might infringe on constitutional rights, such as the right to privacy. Under this test, a restriction can be justified only if it serves a compelling state interest and is narrowly tailored to meet that interest in the least restrictive way possible.
In the employment context, this can become relevant when an employer’s practices or policies might interfere with an employee’s privacy rights. To justify such an infringement, the employer (or the state, in the case of state regulations) would have to demonstrate that the restriction serves a compelling interest, such as maintaining workplace safety or preventing fraud, and that there are no less restrictive means to achieve that goal.
This legal standard balances the interests of the state (or employer) against the individual’s constitutional rights, ensuring that any limitations on those rights are only as extensive as absolutely necessary to achieve an essential purpose. The compelling state interest test is a rigorous standard, and policies failing to meet this criteria may be deemed unconstitutional under California law.
The Electronic Communications Privacy Act of 1986 (ECPA) is the main U.S. federal law addressing electronic privacy protections. Originally, the law expanded already-existing wiretap restrictions to cover electronic data and computer communications. It aims to protect the privacy of these communications by prohibiting their unauthorized interception and restricting third-party providers from disclosing stored communications. The law also outlines procedures for government access to such communications.
ECPA is divided into three parts, addressing live communications, stored communications, and the use of pen registers and trap and trace devices. While it generally prohibits unauthorized interception, it includes exceptions for employers monitoring their own systems and providers protecting their services. Violations of ECPA can result in civil and criminal penalties.
However, due to rapid technological advancements since its enactment, ECPA has faced criticism for being outdated. Critics argue that it needs to be modernized to address contemporary technologies like cloud computing and better protect digital privacy in today’s world.
The California Civil Rights Department (CRD), formerly the Department of Fair Employment and Housing (DFEH), is the key state agency enforcing California’s civil rights laws in both employment and housing. It ensures compliance with laws prohibiting discrimination, harassment, and retaliation against employees or job applicants. These protections cover various characteristics, including race, gender, religion, sexual orientation, and disability. Before pursuing legal action for discrimination, employees often must file a complaint with the CRD and obtain a “right to sue” notice. The CRD investigates these complaints and may then mediate, attempt to resolve the issue, or file its own legal action against employers found to have violated the law.
The California Whistleblower Protection Act (Labor Code 1102.5) is a state law that safeguards whistleblowers in the employment context. This law prohibits employers from retaliating against employees who disclose information to government agencies or to individuals with authority over the employee, participate in investigations, or refuse to participate in illegal actions. Retaliation can take many forms, such as termination, demotion, harassment, or any other adverse employment action. The law’s protections extend to a wide range of actions taken to expose or oppose illegal activities, including internal reporting, reporting to external agencies, and participating in investigations.
In general, the law protects employees who have a reasonable belief that their employer has violated a law, rule, or regulation. This means that even if the reported violation is not ultimately proven, the employee is still protected from retaliation if their belief was reasonable. It’s important to consult with an attorney, however, to determine whether you qualify for protections under the Act.
If an employer retaliates against a whistleblower, the employee may be entitled to reinstatement, back pay, and other remedies. Recent court rulings have further strengthened these protections, expanding the definition of “disclosure” to cover situations where the recipient of the report already knows about the misconduct. This means that employees are protected even if they report information that is already known to others. These robust protections underscore California’s commitment to fostering a workplace environment where employees feel safe reporting illegal or unethical behavior without fear of reprisal.
The Occupational Safety and Health Act (OSHA) of 1970 revolutionized workplace safety in the U.S. by mandating that employers provide environments free from recognized hazards like toxic chemicals, excessive noise, and unsanitary conditions.
OSHA established legally binding standards for various workplace conditions, requiring employers to comply, conduct regular inspections, keep records of injuries and illnesses, and educate employees about their rights. Enforcement is handled by the Occupational Safety and Health Administration, which can issue fines or even pursue imprisonment for serious violations.
The Act allows states to create their own programs, provided they are at least as effective as the federal program. California’s Division of Occupational Safety and Health (Cal/OSHA) is a prime example, enforcing federal standards and implementing stricter state regulations, such as the Heat Illness Prevention Standard and the Workplace Violence Prevention in Health Care standard.
Disparate treatment is a form of discrimination in which an individual is treated unfairly due to their race, sex, religion, age, disability, or other protected characteristic. This type of discrimination is intentional, meaning the employer deliberately treated the employee differently because of their protected status. Evidence of this intent can be direct, like discriminatory remarks, or inferred from circumstances, such as a pattern of biased behavior.
In disparate treatment cases, the employee initially has the burden of proving discrimination. If they can do so, the employer must then provide a legitimate, non-discriminatory reason for their actions. The employee then has the opportunity to prove that the employer’s reason is merely a pretext for discrimination.
California’s Fair Employment and Housing Act (FEHA) prohibits disparate treatment based on any protected characteristic. Employees who believe they have experienced disparate treatment can file a complaint with the California Civil Rights Department (CRD), a necessary step before taking legal action against their employer.
A protected class refers to a group of people shielded from discrimination and harassment based on specific characteristics. These characteristics are considered fundamental to a person’s identity, and individuals cannot be treated differently in employment due to their membership in one of these groups.
California’s Fair Employment and Housing Act (FEHA) provides broader protection than federal law. It prohibits employers from making employment decisions—including hiring, firing, promotions, and compensation—based on an individual’s belonging to a protected class. Protected classes under FEHA include race, color, religion, sex (including pregnancy, childbirth, breastfeeding, and related medical conditions), gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, age (40 and over), mental disability, physical disability, medical condition, genetic information, and military and veteran status. Individuals who believe they’ve faced discrimination based on these protected characteristics may have legal recourse through the California Civil Rights Department (CRD).
An implied contract is an unwritten agreement between an employer and employee, formed through their actions, statements, or policies. Unlike a formal written contract, an implied contract is inferred from circumstances like verbal promises, company handbooks, or consistent patterns of behavior.
For example, if an employer repeatedly assures an employee they will only be terminated “for cause,” or if the company handbook outlines specific termination procedures, an implied contract may exist. This can alter the typical at-will employment relationship, legally obligating the employer to follow those assurances or procedures.
California courts consider various factors when determining the existence of an implied contract, including length of employment, promotion history, assurances of continued employment, and industry practices. An implied contract can significantly impact both employer and employee rights. If an employer breaches an implied contract, for instance by terminating an employee without following promised procedures, the employee may have a legal claim for wrongful termination.
However, proving the existence and terms of an implied contract can be complex, as interpretations of verbal statements and informal practices can be subjective and disputed.
Constructive discharge is a legal concept that applies when an employee resigns because their working conditions have become so intolerable that a reasonable person in the same situation would feel compelled to quit. This could include actions like continuous harassment, pay cuts, demotions, or schedule changes designed to force the employee out. Essentially, it’s treated as an involuntary termination caused by the employer’s actions.
Constructive discharge is not illegal in itself, but it can be if connected to discrimination, retaliation, or other illegal acts. In California, the employee must prove the employer created such egregious conditions that quitting was the only reasonable option. A successful claim can lead to remedies similar to wrongful termination, including back pay, benefits, and potential reinstatement.
At-will employment is a fundamental concept in California labor law. To say that employment is “at will” means that either the employer or employee can terminate the employment relationship at any time, for any reason, or for no reason at all.
In an at-will employment arrangement, the employer is free to change the terms and conditions of employment at any time, including the job description, work hours, and wage. In general, employers can terminate at-will employees without providing any warning or notice. (Notably, the California WARN act requires employers meeting certain criteria to give workers impacted by mass layoffs at least 60 days notice.) Similarly, the employee is free to quit the job at any time, without giving any reason or advance notice.
However, there are significant exceptions to at-will employment in California. Employer cannot terminate employees for unlawful reasons like discrimination, retaliation, or harassment. California also prohibits employers from firing workers for reasons that would violate a fundamental public policy. California employees are not at will if they have an employment agreement, either written or implied, setting a fixed term of employment or specific conditions for termination. Labor unions and collective bargaining agreements may also affect the at-will status in California, providing additional protections and procedures for termination.
The Healthy Workplaces, Healthy Families Act of 2014 (HWHFA) is a California law that guarantees employees the right to earn and use paid sick leave. As of January 1, 2024, this law underwent significant changes. All employers, regardless of size, must provide paid sick leave, though certain kinds of positions may be exempt. Employees who work in California for at least 30 days within a year from the start of employment are entitled to paid sick leave under the HWHFA. Employees accrue at least one hour of paid sick leave for every 30 hours worked and must be allowed to accrue and use a minimum of 40 hours of paid sick leave per year. Local ordinances may require that employers provide more sick leave than the state requirement. Employers have the option to frontload this required paid sick leave at the beginning of the year.
Employees can use paid sick leave for preventative care, including transportation to medical appointments, and to care for themselves or a designated person. This designated person can be anyone the employee considers family. The law allows employees to use sick leave to care for family members, including registered domestic partners, grandparents, grandchildren, and siblings, as well as for issues related to domestic violence, sexual assault, or stalking.
Employers must provide written notice of available paid sick leave on each wage statement and maintain records of hours worked and paid sick days accrued and used for at least three years. Discrimination or retaliation against employees who request or use paid sick leave is prohibited.
The inside sales exemption is a labor law concept that varies significantly between federal law and California law.
Under the federal Fair Labor Standards Act (FLSA), there is not a specific “inside sales” exemption. Instead, inside sales employees might fall under the retail or service establishment exemption if they meet certain conditions. Specifically, the employee’s regular rate of pay must exceed one and a half times the minimum wage for every hour worked in a workweek in which overtime hours are worked, and more than half the employee’s total earnings in a representative period must consist of commissions.
California law, however, generally protects inside salespeople with overtime and minimum wage laws. To be exempt, inside sales employees in California must meet specific criteria outlined in Wage Order 4 or 7, depending on the industry. Employees must be primarily engaged in selling a product or service and regularly making sales and taking orders. They must make at least 1.5x the state minimum wage for each hour worked in each pay period. More than half of the employee’s compensation must also represent commissions. Even if an employee technically meets these requirements, their specific duties can ultimately determine whether the exemption applies. For example, if an inside salesperson spends a significant amount of time on non-sales tasks, such as administrative work or customer support, they may not qualify for the exemption.
In the context of labor law, outside sales refers to sales activities mainly conducted away from the employer’s premises, such as meeting clients at their homes or businesses, attending trade shows, or similar off-site sales efforts.
In California, an outside salesperson, who is exempt from overtime and minimum wage laws, is defined by the following conditions: 1)They are 18 years of age or older, 2)They spend more than half of their working time engaged in sales activities outside of the employer’s place of business. This could include selling goods or services, or obtaining orders or contracts for products, services, or use of facilities, and 3)Their earnings are commission-based or in the form of other variable pay for the services they provide.
Importantly, “outside sales” does not usually include time spent at the employer’s location on tasks like sales preparation, paperwork, or other non-sales activities. To qualify for the exemption from overtime and minimum wage laws, the majority of the employee’s work time must be spent actively engaged in sales activities away from the employer’s place of business.
White collar exemptions refer to categories of employees who are exempt from certain provisions of labor laws, particularly those related to overtime pay. The term comes from the concept of “white collar” work, usually referring to salaried professional, administrative, or executive jobs.
These exemptions generally apply to three main categories of workers:
Executive employees: This exemption typically applies to managers or supervisors who direct the work of at least two full-time employees. These employees have the authority to hire, fire, or make significant employment decisions.
Administrative employees: These employees perform office or non-manual work directly related to the management or general business operations of the company or the company’s customers. Their role includes the exercise of discretion and independent judgment on significant matters.
Professional employees: This category is further divided into “learned professionals” and “creative professionals”. Learned professionals perform work requiring advanced knowledge in a field of science or learning, usually obtained through a prolonged course of specialized intellectual instruction. Creative professionals perform work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor.
To qualify for the white collar exemption, employees generally must meet certain tests regarding their job duties and be paid a certain amount – in California, the equivalent of at least twice the state’s minimum wage. Each exemption has detailed criteria for the types of duties the employee must perform to qualify. It’s not enough just to have a certain job title.
In California, an alternative workweek refers to an arrangement that allows workdays longer than the standard 8 hours without requiring overtime pay. An alternative workweek schedule (AWS) can be established in a work unit if it’s approved by at least two-thirds of the employees affected and if the employer follows particular legal requirements.
Under an AWS, nonexempt employees can work up to 10 or 12 hours per day within a 40-hour week without receiving overtime. This type of schedule might consist of four 10-hour days, three 12-hour days, nine 9 hour shifts worked over two weeks, or other similar arrangements. Overtime pay is still required for any hours worked beyond the established AWS schedule and beyond 40 hours in a workweek.
The alternative workweek system is subject to a number of regulations to ensure it is not being used to avoid paying overtime unfairly.
Non-discretionary bonuses are bonuses that are promised or guaranteed to employees based on specific criteria such as individual or group performance, productivity, sales targets, or other measurable objectives. The employer sets specific conditions for earning these bonuses, and once those conditions are met, the employee is entitled to the bonus. Non-discretionary bonuses can be in the form of monetary incentives, commission payments, or other forms of additional compensation.
In California, non-discretionary bonuses are considered wages and subject to the same legal protections and reporting requirements. They are also treated as part of an employee’s regular rate of pay for the purpose of calculating overtime. Therefore, when an employee earns a non-discretionary bonus, the employer must include the bonus amount in the calculation of the employee’s overtime pay rate. The additional overtime pay owed should be based on the total compensation earned, including the non-discretionary bonus and other forms of compensation, during the relevant overtime period.
Commissions are a type of incentive-based compensation that employees earn by making sales or generating business for their employers. This method of compensation is frequently used in industries such as real estate, car sales, technology sales, and other fields where employee effort can directly influence the level of sales or business.
Commission payments are distinct from other forms of wages, such as hourly pay or a salary, because they are contingent upon the employee’s performance. At the same time, they are technically considered “wages” under California labor law, meaning that they’re subject to the same legal protections and recordkeeping requirements.
Notably, California Labor Code Section 2751 requires that all commission agreements be in writing. They also must specify the method for calculating and paying commissions. In some cases, employers provide “draws” or “advances” on future commissions. These payments are typically deducted from future commission earnings. Commission disputes between employers and employees are not uncommon, often centering around how commissions are calculated, when they are earned, or whether they were paid correctly. It’s important to consult with an attorney if you’re unsure about your entitlement to commission pay.
Piecework earnings, also known as piece-rate pay, is a compensation method where employees are paid based on the number of units they produce or tasks they complete, rather than by the hour or salary. This means their earnings are directly tied to their output.
California has specific laws governing piecework earnings to ensure fair compensation and protect employee rights. Even though piece-rate workers are paid per unit or task, they must still earn at least the state minimum wage for all hours worked. If their piece-rate earnings fall short of the minimum wage, the employer must make up the difference. California law also provides that piece-rate workers are entitled to overtime pay and rest and meal breaks, just like hourly workers.
Salaried earnings involve paying employees a fixed amount regularly, typically monthly or bi-weekly, regardless of their hours worked. This is common for exempt employees who meet specific legal criteria and aren’t entitled to overtime pay.
However, salaried pay can also be used for nonexempt employees. In California, these employees are still entitled to overtime pay for hours worked over 40 in a workweek. Their salary is divided by their total hours worked to determine their regular rate of pay, which is then used to calculate overtime.
California has specific criteria for classifying employees as exempt or nonexempt, including job duties and salary thresholds. Misclassifying an employee as exempt can have legal consequences for employers.
Wage theft occurs when an employer doesn’t pay an employee their legally entitled wages. It’s a widespread problem with various forms. In California, common types of wage theft include unpaid overtime (not paying the required overtime rate for hours worked beyond the legal limit), minimum wage violations (paying employees less than the state or federal minimum wage), unpaid breaks and rest periods (not providing or paying for legally mandated meal and rest breaks), illegal deductions from an employee’s paycheck, theft of tips that belong to employees, and misclassification of employees as independent contractors to avoid paying benefits and taxes. Other forms of wage theft include requiring off-the-clock work, not paying for training time, and failing to pay the agreed-upon wage.
The California Labor Code is a set of state laws that govern the rights and responsibilities of employers and employees in California. While the federal Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay and other requirements for employees throughout the United States, the California Labor Code builds upon these requirements and provides additional protections related to minimum wage, meal and rest breaks, overtime, whistleblowing and other aspects of employment law.
Broadly speaking, employees who perform their work in the state of California are protected by the California Labor Code regardless of their state of residence or location of their employer. Many Labor Code provisions do not apply to public employees in California, however.
The Fair Labor Standards Act (FLSA) is a federal law that was enacted in 1938 to establish minimum wage, overtime pay, and other labor standards in the United States. The FLSA has been the subject of many important court cases over the years.
One of the key provisions of the FLSA is the requirement that employees be paid at least the federal minimum wage for all hours worked, and that they be paid overtime at a rate of one and one-half times their regular rate of pay for all hours worked over 40 in a workweek. The FLSA also includes provisions related to child labor and recordkeeping.
While the FLSA establishes the minimum requirements that employers throughout the United States must follow, individual states may pass laws that go beyond the FLSA. The California Labor Code provides enhanced protections for overtime, meal and rest breaks, minimum wage, expense reimbursement, leave, wage statements, and other facets of employment law.
The California Division of Labor Standards Enforcement (DLSE) is the state agency responsible for enforcing California’s wage, hour, and labor standard laws. Created in 1945, the agency is part of the California Department of Industrial Relations and has offices throughout the state. The DLSE is responsible for investigating complaints, enforcing labor laws through administrative hearings, and providing education and outreach to employers and employees.
The professional exemption under California employment law is part of the white collar exemptions which permit employers to exempt certain employees from overtime rules. This exemption applies to employees engaged in primarily intellectual, managerial, or creative work that necessitates discretion and independent judgment. The work should provide payment not less than twice the state minimum wage for full-time work.
This exemption usually pertains to professions requiring advanced knowledge, gained through a long period of specialized intellectual instruction and study. Essential criteria for the professional exemption include state licensing or certification in fields like law, medicine, architecture, teaching, accounting, and engineering. The work should involve frequent use of discretion and independent judgment.
Furthermore, there is a creative professional exemption subcategory for employees mainly engaged in learned or artistic professions. “Learned professions” require advanced knowledge, while “artistic professions” require original and creative work. Finally, to qualify for the professional exemption, employees must earn a monthly salary equivalent to at least twice the state minimum wage for full-time employment. However, these rules’ application can be complex and may vary, so professional or legal counsel is advised when dealing with exemption classifications.
The administrative exemption is a category of exemption used to determine whether an employee is exempt from overtime and other wage and hour laws. California’s criteria for the administrative exemption are generally stricter than federal law. The main requirement is that an employee’s primary duty must be related to administering or managing the business. The employee must exercise discretion and independent judgment on important matters related to the business.
The administrative exemption also requires that the employee be paid a salary of at least twice the state minimum wage for full-time employment. The administrative exemption applies to a wide range of professions. It’s important to note that simply having a job title or being paid a salary does not automatically qualify an employee for the administrative exemption. The employee’s actual job duties and responsibilities must meet the requirements set forth by California law. If you’ve been improperly classified as exempt, you may be entitled to various damages, including but not limited to unpaid overtime, unpaid minimum wage, and missed rest and meal breaks.
The executive exemption is a category of exemption used to determine whether an employee is exempt from overtime and other wage and hour laws. California’s criteria for the executive exemption are generally stricter than federal law. The main requirement is that an employee’s primary duty must be management-related, meaning they “customarily and regularly” direct the work of at least two other employees. The employee must also have the authority to hire or fire employees or make significant recommendations on hiring or firing decisions.
The executive exemption also requires that the employee be paid a salary of at least twice the state minimum wage for full-time employment. Additionally, the employee must exercise a certain level of independent judgment and discretion in their work, making decisions and taking actions without direct oversight.
It’s important to note that simply having a job title or being paid a salary does not automatically qualify an employee for the executive exemption. The employee’s actual job duties and responsibilities must meet the requirements set forth by California law. If you’ve been improperly classified as exempt, you may be entitled to various damages, including but not limited to unpaid overtime, unpaid minimum wage, and missed rest and meal breaks.
A protected activity is a lawful action that individuals can take without fear of retaliation or discrimination. This concept is protected by law, both federally and at the state level, to shield employees, whistleblowers, and others from adverse actions by employers or other entities.
California law prohibits employers from retaliating against employees for engaging in protected activities. Retaliation can include various actions like termination, demotion, pay cuts, or denial of benefits. Individuals engaging in protected activities may be entitled to legal remedies like reinstatement, back pay, or damages.
The concept of protected activity aims to promote fairness and protect individuals from retaliation for exercising their legal rights. By recognizing and safeguarding these activities, California law helps ensure employees can exercise their rights without fear of negative consequences.
Inconsistent application of performance standards refers to situations where an employer applies different performance standards to different employees based on their membership in a protected class, such as race, gender, age, or disability. Under California law, all employees are entitled to equal treatment with respect to employment opportunities and working conditions. Employers cannot use discriminatory practices or policies to evaluate employee performance or make employment decisions. This means that employers must apply the same performance standards and criteria to all employees, regardless of their protected status.
Employees who have been subject to inconsistent application of performance standards may be able to file a complaint with the California Civil Rights Department (CRD). Receipt of a right-to-sue notice from the DFEH is typically necessary prior to filing a lawsuit against one’s employer for inconsistent application of performance standards.
In California employment law, a substantial motivating factor refers to a standard of causation in certain types of legal claims. Essentially, it means that an action may be unlawful if an improper motive played a significant role in the decision-making process, even if it wasn’t the only factor.
This standard recognizes that decisions can be complex and influenced by multiple motives. It aims to hold individuals or entities accountable even when their actions are motivated by a mix of legitimate and improper reasons.
The substantial motivating factor standard may apply to some claims under California’s Fair Employment and Housing Act (FEHA), which prohibits discrimination and retaliation in employment. However, the specific application of this standard can vary depending on the type of claim and the circumstances.
It’s important to consult with an employment lawyer to understand how the substantial motivating factor standard might apply to a specific situation and what evidence is needed to prove a claim.
The California Family School Partnership Act (CFSPA) is a state law that allows parents and guardians to take time off work to participate in their child’s school activities or address a school-related emergency. Under the CFSPA, employers must provide eligible employees with up to 40 hours of unpaid CFSPA leave per year, as long as the employee gives reasonable notice. To qualify, the employee must work for a company with 25 or more employees at the same location and have worked at the company for at least a year.
California’s Domestic Violence Victim Employment Leave law protects employees who are victims of domestic violence, sexual assault, or stalking by providing them with the right to take time off work to address related issues. This law applies to employers with 25 or more employees.
This leave can be used for various purposes, such as seeking medical attention, obtaining services from victim services organizations, attending counseling, or creating safety plans. This protection extends to employees who are victims themselves or who have a family member (spouse, child, parent, etc.) who is a victim.
Furthermore, the law prohibits discrimination against employees based on their victim status. Employers cannot take adverse actions against an employee for being a victim and must make reasonable accommodations to ensure their safety and the safety of others in the workplace.
California’s Pregnancy Disability Leave (PDL) law is a state law allowing employees who are disabled due to pregnancy, childbirth, or related medical conditions to take up to four months (or 17 1/3 weeks) of job-protected leave, including intermittent leave. It applies to all employers in California with five or more employees.
An employee is eligible for PDL from the very first day of employment. The leave doesn’t need to be continuous and can be taken before or after birth during any period of time the employee is physically unable to work due to pregnancy or a pregnancy-related condition.
During PDL, employers must continue to provide the same health insurance benefits as if the employee was still working. However, the leave is unpaid, unless the employee uses accrued sick leave or vacation time, or if the employer has a policy of continuing pay during leaves.
An employee who takes PDL is also entitled to reasonable accommodation and to be free from discrimination or retaliation due to her pregnancy-related condition. After her leave, she is guaranteed a return to the same or a comparable job, unless the job ceased to exist due to legitimate business reasons.
The Family and Medical Leave Act (FMLA) was signed into law by President Bill Clinton in 1993. The FMLA provides eligible employees with up to 12 weeks of unpaid leave per year for certain family and medical reasons, including the birth or adoption of a child, the care of a family member with a serious health condition, or the employee’s own serious health condition.
The FMLA has had a significant impact on the workplace by providing eligible employees with job-protected leave for family and medical reasons. Overall, the FMLA represents an important milestone in the history of employee rights and has helped to establish the principle that employees should be able to take time off from work to care for their families without fear of losing their jobs or their benefits. In many cases, the California Family Rights Act provides enhanced protections relative to those offered by the FMLA.
The California Family Rights Act (CFRA) allows eligible employees to take up to 12 weeks of unpaid leave within a 12-month period to care for a family member or to bond with a new child. The CFRA goes above and beyond the federal Family and Medical Leave Act (FMLA) in several key ways. Firstly, the CFRA covers registered domestic partners and same-sex spouses, who are not covered by the FMLA. Additionally, the CFRA expands the definition of “child” to include a child of a domestic partner or a same-sex spouse. It also includes adult children who have a serious health condition and are unable to care for themselves due to a mental or physical disability. Leave taken under the CFRA is job-protected, meaning that the employee must get their job or a similar position back when they return from leave. Employers must also maintain the employee’s group health insurance coverage during the leave period.
Notably, conditions related to pregnancy do not qualify for CFRA leave, unlike FMLA leave. However, California employees are eligible to take pregnancy-related leave under California’s separate Pregnancy Disability Leave (PDL) law, if experiencing a serious health condition related to pregnancy or childbirth. Not all employees qualify for CFRA leave. To be eligible, an employee must have worked for their employer for at least 12 months and have worked at least 1,250 hours during the 12 months before their leave starts. Additionally, the employer must have at least 5 employees, and the employee needs to work at a location where the employer has at least 5 employees within 75 miles.
The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects the employment rights of individuals who serve in the uniformed services, including the National Guard and Reserve. It requires employers to provide time off for military service and to reemploy service members upon their return.
Under USERRA, employees absent for military service are entitled to leave protections. This applies to all employers, regardless of size. Employers must grant leave for the entire period of service, up to a maximum of five years, and maintain the employee’s health care benefits. Upon return, the employer must promptly reemploy the service member in the position they would have held if not for their military absence, provided they are still qualified. The law also prohibits discrimination based on military service.
USERRA is enforced by the Department of Labor’s Veterans’ Employment and Training Service (VETS). Employees who believe their rights were violated can file a complaint with VETS.
A prima facie case is a set of evidence or facts that, if not disputed or contradicted, is sufficient to prove a particular claim or legal theory. It is the minimum amount of evidence that a plaintiff must present to prove their case and to shift the burden of proof to the defendant.
In civil cases, a plaintiff must present a prima facie case to the court to establish that they have a valid claim or cause of action. Overall, the concept of prima facie is important in many areas of law as it sets the initial burden of proof and helps to ensure that a case proceeds based on the strength of the evidence.
The interactive process is a legal requirement in California that mandates employers to engage in a good-faith discussion with employees needing accommodations due to disabilities, religious beliefs, or other protected characteristics. This involves an open dialogue between the employee and employer to identify and explore potential accommodations.
Employers must initiate this process when an employee requests an accommodation or when the employer becomes aware of the need. During the process, the employer must collaborate with the employee to identify possible solutions and assess whether any proposed accommodation would cause undue hardship for the employer. The interactive process is ongoing and may need revisiting if the employee’s needs change or if the initial accommodation proves ineffective.
Failure to engage in the interactive process or refusal to provide reasonable accommodations can expose the employer to discrimination claims under California’s Fair Employment and Housing Act (FEHA). Retaliation against employees for requesting accommodations or participating in the process is also prohibited.
Reasonable accommodation refers to the legal duty of an employer to make adjustments for employees with disabilities, religious needs, or other protected characteristics, provided these adjustments don’t impose undue hardship on the employer.
The California Fair Employment and Housing Act (FEHA) prohibits discrimination based on various protected characteristics, including disability and religion. Under FEHA, employers must provide reasonable accommodations to qualified employees with disabilities unless it creates undue hardship.
Reasonable accommodations can be diverse, including changes to the work environment like modified schedules, specialized equipment, or physical modifications. They can also involve adjustments to company policies, such as allowing an employee to work from home or providing a sign language interpreter.
While the employee is responsible for initiating the accommodation request, employers should also be proactive in identifying potential needs. California employers have a legal duty to engage in an interactive process with employees to determine appropriate reasonable accommodations. Failure to provide these accommodations can lead to legal liability and damages.
Mixed motive employment cases arise when an employer has both legitimate and discriminatory reasons for an adverse employment action. This concept originated in the Civil Rights Act of 1964 and was further developed in the Supreme Court case Price Waterhouse v. Hopkins (1989) 490 U.S. 228, which established that discrimination can be a motivating factor even if it’s not the sole factor.
California’s Fair Employment and Housing Act (FEHA) also recognizes mixed motive discrimination, covering a wider range of protected characteristics than federal law. Proving these cases can be challenging, as employees must show discrimination played a role in the adverse action. However, such cases are crucial for promoting workplace equality and holding employers accountable.
Employees who prove mixed motive discrimination may be entitled to remedies like declaratory or injunctive relief and attorney’s fees. However, reinstatement or back pay might not be awarded if the employer proves they would have made the same decision regardless of the discriminatory motive.
California’s Fair Employment and Housing Act (FEHA) is a state law that prohibits discrimination in employment, housing, and public accommodations based on protected characteristics. California law, and the FEHA in particular recognize a wider variety of protected classes than federal law. Specifically, the FEHA prohibits discrimination on the basis of race, color, religion, sex, sexual orientation, gender identity, gender expression, national origin, ancestry, age (40 and over), disability, medical condition (including genetic information), marital status, military and veteran status, and pregnancy, childbirth, or related medical conditions.
The FEHA was first enacted in 1959 as the Fair Employment Practice Act (FEPA) and renamed the FEHA in 1980. At that time, FEHA was amended to explicitly include sexual harassment as a form of sex discrimination, making California the first state in the country to do so. Overall, FEHA has played a significant role in advancing the rights of marginalized groups in California and has served as a model for similar laws in other states.
The Pregnancy Discrimination Act (PDA) is a federal law that prohibits discrimination based on pregnancy, childbirth, or related medical conditions. The law was enacted in 1978 as an amendment to Title VII of the Civil Rights Act of 1964.
Under the PDA, employers cannot discriminate against pregnant employees in hiring, firing, promotions, or any other aspect of employment. Employers are also required to provide reasonable accommodations to pregnant employees, such as light duty or modified work assignments, if doing so would not create an undue hardship for the employer.
If an employer offers health insurance to its employees, the plan must cover pregnancy-related conditions. While the PDA itself doesn’t require pregnancy or childbirth leave, other laws like the Family and Medical Leave Act (FMLA) and state laws such as California’s Pregnancy Disability Leave (PDL) may provide those rights.
The Americans with Disabilities Act (ADA) is a federal law that prohibits discrimination against individuals with disabilities in all aspects of public life, including employment, education, transportation, and access to public spaces. The law was enacted in 1990 in response to concerns that individuals with disabilities were being unfairly excluded from many aspects of American society.
Under the ADA, employers are required to provide reasonable accommodations to employees with disabilities, as long as these accommodations do not create an undue hardship for the employer. If a current employee becomes disabled, their employer must engage in a good-faith interactive process to determine whether reasonable accommodations can be made. In general, employers cannot make employment-related decisions based on an individual’s disabled status. The ADA specifically prohibits discrimination against individuals with disabilities in the hiring process.
The Age Discrimination in Employment Act (ADEA) is a federal law prohibiting employment discrimination against individuals aged 40 or older. Enacted in 1967, it addresses concerns about unfair treatment of older workers.
The ADEA applies to employers with 20 or more employees and prohibits discrimination in all employment aspects, including hiring, firing, promotions, and compensation. It also prohibits retaliation against employees who report age discrimination or participate in related legal proceedings. A limited exception exists if age is a bona fide occupational qualification (BFOQ) essential for normal business operations, but this is a narrow exception and rarely applied.
Title VII of the Civil Rights Act of 1964 is a landmark federal law prohibiting employment discrimination based on race, color, religion, sex (including pregnancy, childbirth, and related conditions), and national origin. It has profoundly impacted the workplace and society by promoting equality and combating discrimination.
Born from the civil rights movement of the 1950s and 1960s, Title VII was introduced by President Kennedy in 1963 and signed into law by President Johnson in 1964. Since then, it has been the subject of numerous court cases that have shaped its interpretation and application.
Landmark cases like McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 established a framework for analyzing discrimination claims, while Meritor Savings Bank v. Vinson (1986) 477 U.S. 57 expanded Title VII to include sexual harassment as a form of sex discrimination.
Over the years, Title VII has been amended and expanded to provide further protections, such as those in the Pregnancy Discrimination Act and the Americans with Disabilities Act. It remains a vital tool for achieving workplace equality and combating discrimination.