Employment Litigation

feature-employment-litigationChami Law provides aggressive representation to individuals throughout Southern California who have suffered from employment discrimination, sexual harassment, wrongful termination, and related harms.

 

Discrimination and Wrongful Termination

When there is no contract setting out the terms of employment, an employee is said to be hired “at-will,” and is therefore subject to termination at any time for good, bad, or no reason. Yet several exceptions to this doctrine have been made by state and federal laws, which have established reasons for which it would be illegal or against public policy to terminate an employee. Most prominent among these reasons is discrimination based on one’s membership in a legally-protected class, such as race, color, national origin, gender, age, religion, or disability. An employer may not fire an employee for any of those reasons. In fact, any type of adverse employment action, such as not hiring, demoting, transferring, or denying a raise based on the above characteristics, is most likely illegal employment discrimination.

An employee who has been unlawfully discriminated against in any of the above ways may file a lawsuit for wrongful termination, and may be entitled to reinstatement with back pay and interest, as well as other monetary damages.

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Whistleblowing and Retaliation
Many laws prohibit termination or other adverse action as retaliation for reporting violations of the law or safety standards, either to the employer’s chain of command or the appropriate government authorities. Known as whistleblowing, this activity is protected in most instances.

 

Sexual Harassment
Sexual harassment is another type of illegal discrimination. In the traditional type of quid pro quo harassment, the supervisor threatens the subordinate with unfavorable job treatment – or conditions favorable treatment – based on the subordinate’s compliance with requests for sexual favors or other romantic involvement.

The law also recognizes sexual harassment through the creation of a hostile environment, which involves unwelcome conduct of a sexual nature that is so severe and pervasive that it creates a threatening or intimidating atmosphere. A hostile environment may be the product of offensive touching, rude comments, obscene gestures, or inappropriate graphic materials present in the workplace. Moreover, a hostile environment can be created not only by the supervisor but by co-workers as well. Harassment in this context can be conducted by females on males as well as male to female, and by members of the same sex as well.

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Family Leave Discrimination (FMLA/CFRA)
Employers are prohibited from discriminating against employees who utilize their right to family medical leave. The FMLA and CFRA provide that a full-time employee with at least 12 months consecutive service may take a period of up to 12 weeks of unpaid leave for the purpose of personal medical leave (such as pregnancy or other serious medical conditions) or family medical leave (such as to care for parent or other immediate family member) without being terminated, demoted or otherwise discriminated against. However, many employers are notorious for violating CFRA and FMLA laws in Southern California.

When wrongful termination or workplace discrimination claims arise following a return from family medical leave, the employer must prove that the termination or adverse employment action was the result of a non-family leave related issue. At Chami Law we investigate whether the employer’s stated reason for the adverse employment action (e.g. termination or demotion) was actually a pretext for an illegal or discriminatory motive.

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Brief Summary of California Labor Codes and Pro-Employee Laws

The California Labor Code aims to protect employees from discrimination, retaliation, and for engaging in legally protected activities. Various other California laws, including the Business and Professions Code, Health and Safety Code and Government Code also aim to protect workers across numerous industries. Below is a brief summary of some of the most widely recognized statutes and Industrial Welfare Commission (IWC) Orders aimed at protecting employee rights in California. This list is not exhaustive:

 

Labor Code § 96 (Lawfulness of Off-duty Conduct)
Employees may not be discharged because of lawful off duty conduct.
Labor Code § 98.6 (No Discrimination for Labor Commission Complaints)
Protects employees who institute proceedings under the jurisdiction of the Labor Commissioner, or who testify in any such proceeding.
Labor Code § 98.7 (No Discrimination for Labor Code Rights Enforcement)
Broad protection for employees facing discrimination for enforcement of Labor Code provisions.
Labor Code § 132a (No Discrimination for Workers' Compensation Claims)
Unlawful to terminate and/or discriminate against employees filing or pursuing workers compensation claims. Increased benefits and wages as penalty for violations.
Labor Code § 200 ('Wages' defined)
“Wages” are defined as including all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation.
Labor Code § 201 (Immediate Payment of Wages upon Termination)
Entitles discharged employees to immediate payment of all wages earned and unpaid at the time of discharge.
Labor Code § 202 (Payment of Wages upon Resignation)
Entitles resigning employees to payment of all wages within 72 hours of notice of intention to quit.
Labor Code § 203 (30 Day Waiting Penalty for Unpaid Wages)
Provided penalty for failure to timely pay wages upon quitting, termination or layoff. Wages continue to accrue for up to 30 days until the employee is paid, at the rate of pay at the time of quitting, termination or layoff. This provision can apply where there is a dispute about the payment (such as a refusal to pay vacation pay) if the refusal to pay is “willful.”
Labor Code § 203.1 (30 Day Waiting Penalty for Bounced Checks)
Employers who pay with checks returned for insufficient funds are subject to a maximum 30-day penalty. The penalty is set at the rate of pay the worker was receiving when the check bounced. The penalty does not require willfulness on the part of the employer, although the penalty is excused if the violation was unintentional.
Labor Code § 204 (Payment of Wages; Time Periods)
Wages must be paid at least twice monthly on days designated in advance by the employer. Wages earned between the 1st and the 15th of each month must be paid before the 22nd. Wages earned between the 16th and the end of the calendar month must be paid before the 10th of the next month. If a collective bargaining agreement provides a different arrangement, that different arrangement governs. Payment of wages on a weekly, bi-weekly or semi-monthly basis is allowable provided the employer does not withhold more than seven days of pay.
Labor Code § 204.3 (Compensating Time Off)
In limited circumstances, an employer may compensate employees for overtime with time off at the rate of one and one-half hours per hour worked after 40 per week instead of paying employees at one and one-half their rate of pay.
Labor Code § 206.5 (Release of Unpaid Wages Void)
Any release of claim for unpaid wages shall be void if wages not actually paid.
Labor Code § 207 (Notice Posted of Regular Payday)
Employers must post notices defining the regular payday and the time and place of payment.
Labor Code § 208 (Wage Payment To Discharged Employee at Place of Discharge)
Discharged (including laid-off) employees must be paid at the place of discharge. If an employee quits, he/she has to be paid at the office of the employer in the county where he/she was working.
Labor Code § 209 (Wages For Striking Employees)
Striking employee entitled to all unpaid wages on the next regular payday. Employer must return all deposits to the employee. Failure to pay on the next regular payday may also be an unfair labor practice under the National Labor Relations Act (NLRA). Enforcement may be preempted by NLRA.
Labor Code § 210 (Civil Penalty for Failure to Pay)
Failure to pay wages in accordance with §§ 204, 205 and 1197.5 results in a civil penalty of $100 for each initial violation. For subsequent violations, the penalty increases to $200 plus 25% of the amount withheld. The Labor Commissioner recovers this penalty and the penalty goes to the State Treasury.
Labor Code § 212 (Payment in Negotiable Instruments)
Employers must pay in negotiable instruments (checks) or cash. The employer must maintain sufficient funds to cover the check for at least 30 days. Scrip or coupons redeemable in goods or services are not legal forms of payment.
Labor Code § 213 (Bank Account Deposit of Wages)
Employer may not require direct deposit, but may do so if employee voluntarily authorizes it.
Labor Code § 218 (Authority of District Attorney to Prosecute Actions)
District attorneys maintain authority to file Labor Code actions. Further, any wage claimant is given the authority to sue directly in court for wages or penalties due under various Labor Code sections.
Labor Code § 218.5 ('Prevailing Party' Fees/Costs)
“Prevailing party” is entitled to fees and costs incurred in the action, if requested in the pleadings.
Labor Code § 218.6 (Interest Due in Wage Actions)
Interest must be paid in successful actions for unpaid wages.
Labor Code § 221 (Collection of Wages Paid by Employer)
Employers may not collect or receive any part of wages previously paid. Employers may not recoup overpayments.
Labor Code § 222 (Unlawful to Withhold Amounts Agreed Upon Through Collective Bargaining)
Employer cannot withhold amounts agreed upon through collective bargaining. Likely unenforceable as preempted under federal collective bargaining laws.
Labor Code § 222.5 (Employers Must Pay for Medical or Physical Examinations)
Employers may not require current or prospective employees to pay for medical or physical examinations required for employment.
Labor Code § 223 (Illegal to Pay Less Than Required by Statute or Contract)
It is illegal to secretly pay less than required by statute or contract. May also apply to prevailing wage situations.
Labor Code § 224 (No authorized deductions)
Employers may not make wage deductions except where authorized by law.
Labor Code § 225.5 (Civil Penalties for Labor Code Violations)
Violations of §§ 212, 216, 221, 222 and 223 result in civil penalty of $50 for first violation and $100 for each subsequent willful violation, plus 25% of the amount unlawfully withheld. Penalty recoverable by Labor Commissioner or on behalf of State Treasury.
Labor Code § 226 (Accurate/Itemized Wage Statements)
Entitles employees to a written statement of gross wages earned, total hours worked, all deductions, net wages earned, inclusive dates of pay period, name of the employee and social security number and name and address of the employer.
Labor Code § 226.3 (Penalty for Failure to Provide Accurate/Itemized Wage Statements)
Violation of § 226 or § 226.3 yields penalty of $250 per employee per violation in initial citation and $1,000 per employee per violation thereafter.
Labor Code § 226.7 (No Work During Meal or Rest Periods)
Protects employees from working during any meal or rest period mandated by an IWC Wage Order. Entitles workers to one hour’s pay for daily violation of each.
Labor Code § 227.3 (Terminated Employees Entitled to Payment for Unused Vacation)
Terminated employees are entitled to payment of unused vacation time unless otherwise provided for by a collective bargaining agreement.
Labor Code § 230 (Serving on Jury duty)
No employer shall discharge or discriminate against an employee who takes time off from work to serve on a jury or to appear as a witness in a court proceeding.
Labor Code § 230(c) (Time Off for Victims of Domestic Violence)
Employers may not discriminate against employees who take time off work to seek legal relief for domestic violence or sexual assault.
Labor Code § 230.2 (Employees/Felony Victims May Attend Judicial Proceedings)
Employees who are victims of most felonies may attend related judicial proceedings without discrimination or retaliation. Protection extends to attending proceedings involving certain relatives and domestic partners.
Labor Code § 230.3 (Serving as a Volunteer firefighter)
Employers may not discriminate against employees who take time off to perform emergency duty as volunteer firefighters.
Labor Code § 230.8 (School Visits Permitted)
Employers may not discriminate against employees with K-12 grade children for taking off up to four hours each year per child for school visits. Small employer exemption exists.
Labor Code § 231 (Physical Examinations for Driver's License)
Employer requiring driver’s license for worker must pay cost of any physical examination required therefor.
Labor Code § 232 (Disclosure of Wage information)
Employers may not require employees to refrain from disclosing amount of wages, or disallow employees sharing such information.
Labor Code § 232.5 (Disclosure of Working Condition Information)
Employers may not require employees to refrain from disclosing working conditions, or disallow employees sharing such information.
Labor Code § 233 (Use of Sick Leave to Attend to Illness of Child or Parent)
Employees may use up to six months of accrued sick leave to attend to sickness of child, spouse or parent, if sick leave is provided by employer. Domestic partners entitled to the same use. Does not supersede Employer conditions on use of sick leave. Employee may use up to half of available sick leave for this purpose.
Labor Code § 234 (No Discrimination for Use of Sick Leave to Attend to Illness of Child or Parent)
Employer may not discriminate against an employee who uses sick leave provided by § 233.
Labor Code § 300 (Wage Assignments Limited)
Wage assignments are invalid unless they meet the requirements (e.g., written statement specifying transaction for which assignment occurs, spousal consent, notarization, maximum 50% of wages assigned and assignment is revocable at any time) of this section.
Labor Code § 351 (Ownership of Gratuities)
Employers may not take any portion of gratuities left for employees. No deductions allowed for cost of processing tips left on credit cards.
Labor Code § 401 (Payment for Bonds or Photographs)
If employer requires a photograph or bond of an employee, employer must bear the cost.
Labor Code §§ 402 and 403 (Employer Acceptance of Cash Bonds)
Employer may not require cash bonds unless employee is entrusted with property of value equal to bond, or employer regularly advances goods or merchandise to employee. All cash bonds must be deposited in bank.
Labor Code § 406 (Putting up Property as Bond)
If employer requires property to be put up by employee as part of contract of employment, subject to §§ 402 and 403 conditions.
Labor Code § 407 (Illegal Consideration to Secure Employment)
Employer cannot condition employment upon investment or purchase of stock in business.
Labor Code § 432 (Employee Entitled to Copy of Documents Signed)
Employee is entitled to copy of any document that he/she is required to sign as condition of employment.
Labor Code § 432.2 (Polygraph/Truth Tests)
No employer may require an applicant, prospective employee, or employee to submit to a polygraph or other truth test as a condition of employment. Exemption for public agencies.
Labor Code § 432.5 (Illegal Terms of Employment)
The employer may not require any applicant or employee to agree to any illegal employment term or condition.
Labor Code § 432.7 (Disclosure of Arrest Not Resulting in Conviction)
Employer may not ask employee or applicant about detention not resulting in a conviction. Employer may not ask about use or enrollment in any pretrial diversion program. Employer may not use fact of detention in any employment decision unless resulting in conviction.
Labor Code § 432.8 (Employer Disclosure of Marijuana Arrests)
Labor Code § 432.7 also applies to certain marijuana arrests and convictions.
Labor Code § 435 (No Tape Recording or Video Recording of Certain Areas)
Unlawful for an employer to tape or video record in locker room, restroom or area where employees change their clothes.
Labor Code § 450 (No Employer Coercion of Purchases)
Employees cannot be coerced to patronize employer or other person in the purchase of any item of value. Misdemeanor under Labor Code § 451.
Labor Code § 500 ('Work' Period Definitions)
“Workday” and “day” mean any consecutive 24-hour period commencing at the same time each calendar day. “Workweek” and “week” mean any seven consecutive days, starting with the same calendar day each week. “Workweek” is a fixed and regularly recurring period of 168 hours, seven consecutive 24-hour periods. “Alternative workweek schedule” means any regularly scheduled workweek.
Labor Code § 510 (Overtime Pay Required)
Work in excess of eight hours in one workday and/or 40 hours in one workweek, and the first eight hours on the seventh day of work in any workweek must be compensated at no less than one and one-half times the employee’s regular rate of compensation. “Double time” required after twelve hours in any workday, after eight hours on the seventh day of work. Exemptions provided for certain employees who satisfy multi-part test.
Labor Code § 511 (Employer May Adopt Regularly Scheduled Alternative Workweek)
Employer may adopt a four-day ten-hour regular workweek without paying daily overtime. Two-thirds of employee force must so choose in secret ballot election. Employer must make reasonable effort to accommodate those who cannot work more than eight hours per day. Employers must file results of elections with Labor Commissioner. Strict rules regarding elections established by the IWC.
Labor Code § 511(c) (No Reduction of Pay Level Due to Alternative Workweek)
Employers cannot reduce employees’ regular rate of hourly pay as a result of the adoption, repeal or nullification of an alternative workweek schedule.
Labor Code § 512 (Mandatory Meal Period)
Employer must provide a meal period of at least 30 minutes if the employee works more than five hours. Meal period may be waived by mutual agreement if work period is less than six hours. Second meal period required after 10 hours of work unless the work period is less than 12 hours, in which case the meal period may be waived by mutual agreement of employer and employee. Cannot waive both meal periods.
Labor Code § 513 (Makeup Work Time Permitted)
Employer may approve written request of employee to make up lost time at straight time rate, provided request is not solicited by the employer and provided employee does not work more than 11 hours in any workday or 40 hours in the work week.
Labor Code § 514 (CBA Exemption from Code § 510 and 511)
Sections 510 and 511 inapplicable to employees covered by valid collective bargaining agreement if CBA provides premium wage rates for all overtime hours worked and a regularly hourly rate of pay at least 30 percent more than the state minimum wage.
Labor Code §§ 551/552 (Day of Rest, One Day in Seven)
No employer may require employees to work more than six days in seven. Misdemeanor under Labor Code § 553.
Labor Code § 554
Days of rest may be accumulated through the month provided all rest days are given in the month. Applicable where collective bargaining agreement does not provide otherwise.
Labor Code § 558 (Section 510-552 Penalties)
The first violation of §§ 510-552 triggers $50 penalty per employee for each pay period. For each subsequent violation, penalty rises to $100 per pay period.
Labor Code § 921 (Public Policy Violation to Interfere With Collective Bargaining)
Employer cannot interfere with employee decisions regarding union participation or support. Misdemeanor under Labor Code § 922.
Labor Code § 970 (Misrepresentation of Employment Conditions Where Employee Moves From One Location to Another)
Illegal to induce employee to move from one location to another whether in the state or outside the state by misrepresenting the kind, character, length of work, housing conditions of work or the existence or non-existence of labor dispute. Double damages available.
Labor Code § 973 (Notice of Strike in Employment Advertisements)
Employers must include notice in any advertisement if strike, lockout or trade dispute exists.
Labor Code § 1011 (Misrepresentation of Labor Engaged in Production, Manufacture or Sale of Products)
Employer may not misrepresent by a label the kind, nature, and character of labor employed, nor misrepresent extent of labor employed, nor misrepresent number or kind of persons exclusively employed, nor misrepresent that a particular or distinctive class or character of laborers employed.
Labor Code § 1012 (Misrepresentation of Union Labor Employed)
Employer may not misrepresent that union labor is/was employed in manufacture, production or sale of articles or performance of services.
Labor Code § 1014 (Union Label or Trademark, Registered with State)
Union owns label or trademark if union has registered with State.
Labor Code § 1016 (Unauthorized Use of Union Label or Trademark)
Non Union/unauthorized use or display of label, trademark, insignia, seal, device or form of advertisement of union is unlawful.
Labor Code § 1017 (Unauthorized Use of Union Card)
Unauthorized use of cards of labor union to obtain aid, assistance or employment is unlawful.
Labor Code § 1018 (Unauthorized Use of Union Buttons)
Unauthorized wearing of union buttons is unlawful.
Labor Code § 1021 (Illegal for Non-Licensed Contractor to Employee Workers for Contract Work)
Employer who is required to maintain contractor’s license may not use employees for work requiring such a license. $200 per day per employee penalty.
Labor Code § 1021.5 (Illegal for Employer Needing Contractor's License to Employ Individual Also Lacking License)
Unlawful for employer to hire person as contractor for which license is needed when that person lacks license. Penalty of $200 per day per each employee.
Labor Code § 1025 (Reasonable Accommodation for Employees Attending Drug or Alcohol Rehabilitation Program)
Reasonable accommodation required for employee voluntarily entering drug or alcohol rehabilitation programs. Small employer exception provided.
Labor Code § 1026 (Privacy Rights for Employees Attending Drug or Alcohol Rehabilitation Program)
Employer must protect privacy of employees in drug or alcohol program. Employer must protect privacy of fact that employee has entered into a drug or alcohol rehabilitation program.
Labor Code § 1030 (Employer Must Provide Place for Lactation)
Employer must provide place and time for employees to express milk.
Labor Code § 1041 (Employer Must Reasonably Accommodate Illiterate Employees)
Employer must accommodate illiterate employees if accommodation does not impose unreasonable hardship. Employer must provide information about literacy programs.
Labor Code § 1044 (Employee Illiteracy Privacy Interests)
Employers must safeguard the privacy of employees who reveal literacy problems; Employer may not discriminate against employee revealing literacy problem if work performance otherwise satisfactorily.
Labor Code § 1050 (Anti-'Blacklisting')
Employer cannot interfere with reemployment of employee via misrepresentation.
Labor Code § 1051 (No Forced Fingerprinting or Photographing Where Purpose to Provide to Third Party)
Illegal to require person to be fingerprinted or photographed where employer intends to give fingerprints or photographs to third person to possible detriment of employee. If fingerprints or photographs used AT WORK, it is illegal to give to a third person. This applies to applicants as well as to employees.
Labor Code § 1054 (Treble Damages)
Treble damages are available for violations of §§ 1050-1052.
Labor Code §§ 1060, et seq. (Displaced Janitor Opportunity Act)
Certain successor employers must hire janitors of predecessor employers and retain them for 60 days.
Labor Code §§ 1101 (No Rules Interfering with Employee Political Activity)
No employer may adopt or enforce any rule/policy interfering with employees’ political activities.
Labor Code § 1102 (No Coercion Regarding Employee Political Activity)
No employer may influence or coerce employees in relation to their political activities.
Labor Code § 1102.5 (Whistleblower Protection)
Employers may not retaliate or enforce rules that prohibit employees from providing information to state or federal agencies where the employee has reasonable cause to believe that information discloses a violation of law, or discloses non-compliance with such a rule. Up to $10,000 penalty for violation.
Labor Code § 1127 (Successor Clause Enforceable Where NLRA Inapplicable)
If the National Labor Relations Act does not apply to employer, a successor clause renders CBA enforceable against successor until its expiration or for three years, whichever comes first.
Labor Code §§ 1130 and 1136.2 (No Use of Professional Strikebreakers)
Unlawful to use professional strikebreaker (i.e., person who has been hired twice before during the course of a lockout/strike and who worked the duration of the strike for the purpose of replacing locked-out or striking employees). May be preempted by NLRA.
Labor Code § 1174 (Employers Must Maintain and Disclose Records to DLSE)
Employers required to furnish to DLSE, upon request, information needed by Labor Commission to enforce Chapter an allow employees of Commission/DLSE access to the place of business to conduct investigations. Employers shall also keep name and address records of all employees and ages of minors, in particular format and including particular information as set forth in statute, for at least two years.
Labor Code § 1186 (Pharmacists Not Exempt 'Professionals')
A pharmacist is not exempt from of IWC Wage Order overtime requirements unless an administrative or executive employee. “Professional” employee exemption inapplicable.
Labor Code § 1191 (Special License for Handicapped Workers)
For any occupation in which a minimum wage has been established, Labor Commission may issue to an employee who is mentally or physically handicapped, or both, a special license authorizing the employment of the licensee for a period not to exceed one year from date of issue, at a wage less than the legal minimum wage. The commission shall fix a special minimum wage for the licensee. Such license may be renewed on a yearly basis.
Labor Code § 1191.5 (Special License to Nonprofit Organization)
Notwithstanding the provisions of § 1191, Labor Commission may issue a special license to a nonprofit organization to permit the employment of employees who have been determined to meet the requirements in § 1191 without requiring individual licenses of such employees. The commission shall fix a special minimum wage for such employees. Such license may be renewed on a yearly basis.
Labor Code § 1194.2 (Liquidated Damages for Failure to Pay Minimum Wages)
Liquidated damages in an amount equal to unpaid wages recoverable in an action to collect minimum wages.
Labor Code § 1197.1 (Civil Penalty for Minimum Wage Violation)
A civil penalty of $100 per pay period, per employee, recoverable where employees are not paid minimum wage. Civil penalty rises to $250 per pay period, per employee, for subsequent violations.
Labor Code § 1197.5 (Equal Pay Act)
Employers may not discriminate in wages due to gender.
Labor Code § 1198.3 (Refusal to Work Hours in Excess of Time Permitted by IWC Order)
No employer shall discriminate against an employee for refusing to work time in excess of the hours permitted under an Industrial Welfare Commission Order.
Labor Code § 1198.5 (Employee May Inspect Personnel Records)
With certain exceptions, employers must make personnel records available at work for employees to inspect at reasonable times.
Labor Code § 1199 (Penal Liability for Wage Violations)
Employers, persons, officers, agents, or other employees are guilty of a misdemeanor and subject to a fine of at least $100 for (1) requiring or causing any employee to work for longer hours than those fixed, or under labor conditions prohibited by a Labor Commissioner Order, (b) paying or causing to be paid a sub-minimum wage, (c) violating, refusing or neglecting to comply with any provision of the particular Labor Code chapter or any order or ruling of the Commission.
Labor Code §§ 1285, et seq. (Restrictions on Employment of Minors)
Substantial restrictions on the employment of minors under sixteen year of age; less severe restrictions exist regarding employment of minors under eighteen and over sixteen years of age.
Labor Code §§ 1400-1408 (State WARN Act)
Notification required before mass layoff, relocation or termination. Similar to Federal WARN Act but broader in some respects (e.g., covers employer with 75 employees and where layoff affects 50 or more employees).
Labor Code §§ 1682-1699 (Restrictions on Farm Labor Contractors)
Farm Labor Contractors must register with the Labor Commissioner; sections provide various safeguards.
Labor Code §§ 1700-1701 (Talent Agencies Subject to Regulation)
Imposes restrictions on talent agencies.
Labor Code §§ 1720, et seq.
‘Public Works’ and Related Terms Defined
Labor Code § 1777.6 (Discrimination on Public Works Projects)
Contractors on public works projects may not discriminate on the bases listed in the Fair Employment and Housing Act (i.e., race, religious creed, color, national origin, ancestry, physical and mental disability, medical condition, marital status and/or sex).
Labor Code § 1810 and § 1811 (Eight-Hour Day for Public Sector Labor)
Most work performed under public contract or authority of State or municipal corporations is limited to eight hours per day and forty hours per week.
Labor Code § 1812 (Record of Public Work Hours)
Accurate record of name of and daily and weekly hours of workers required for public work and be reasonably available for inspection. Misdemeanor under § 1814.
Labor Code § 1813 (Penalty for Public Work Overtime)
$25 penalty available for public work beyond eight hours per day or 40 hours per week.
Labor Code § 1815 (Overtime Pay for Public Work)
Overtime for public works employees due and calculated at one and one-half times the employee’s regular rate of pay.
Labor Code § 2350 (Effluvia- and Other-Nuisance Free Workplaces; Toilets)
Employers must provide workplace free of effluvia and other nuisances arising from drains. Sufficient number of separate bathrooms for each sex required. Violation is misdemeanor under § 2354.
Labor Code § 2351 (Sufficient Workplace Ventilation)
Employers must provide sufficiently ventilated workplaces. Violation is misdemeanor under § 2354.
Labor Code § 2353 (Workplace Exhaust Fans or Blowers)
Workplaces producing dust, filaments or injurious gases must have exhaust fans or blowers. Violation is misdemeanor under § 2354.
Labor Code § 2441 (Workplace Drinking Water)
Employers must provide fresh, free and pure drinking water.
Labor Code §§ 2650-2667 (Industrial 'Homework' Defined and Regulated)
No industrial homework permitted in various industries, including the manufacture of food items and garments. Licenses required for other industrial homework.
Labor Code § 2670 (Garment Industry Penalty Statement of Intent)
Criminal and civil sanctions imposed by this part of Labor Code augment other available penalties.
Labor Code § 2673 (Record of Work in Garment Industry)
Employers must maintain accurate records of persons and work details for a period of three years.
Labor Code § 2673.1 (Garment Industry Pay Regulations and Claims)
Overtime and minimum wage regulations provided for garment industry workers; claims procedures detailed.
Labor Code §§ 2698-2699.5 (Private Attorneys General Act of 2004)
Aggrieved employees may bring actions otherwise available to the Labor and Workforce Development Agency or its departments, etc. Action may be brought on behalf of other current or former employees pursuant to the procedures specified in § 2699.3. Discusses notice requirements, enforcement and penalties available.
Labor Code § 2800 (Employer Indemnity of Employees for Losses)
Employer shall indemnify employee for losses caused by the employer’s want of ordinary care.
Labor Code § 2800.1 (Employer Must Safeguard Musical Instruments)
Employer who fails to take reasonable precautions to safeguard musical instrument liable to employee for instrument’s loss or damage.
Labor Code § 2802 (Indemnification by Employer of Losses or Expenses Incurred by Employee)
Employer must indemnify employee for all losses or expenses suffered as a direct consequence of employee’s work duties or at the direction of employer. Attorneys’ fees available in successful employee suit.
Labor Code § 2922 ('At Will' Employment)
Employment without specified term may be terminated at the will of either party on notice to the other.
Labor Code § 2926 (Pre-Dismissal Compensation for 'At Will' Employees)
At will employees entitled to wages for all work performed prior to dismissal.
Labor Code § 2927 (Pre-Resignation Compensation for 'At Will' Employees)
At will employees entitled to wages for all work performed prior to voluntary resignation.
Labor Code § 2928 (Tardiness Deductions Must Be Proportionate)
Employer may deduct for tardiness in amount proportionate to time missed; employer may deduct one half hour of pay for tardiness of less than 30 minutes.
Labor Code § 2929 (Discharge for Wage Garnishments)
Employee shall not be discharged for garnishment or threat of garnishment of wages.
Labor Code § 2930 (Shopping Investigator's Report)
Employee cannot be discharged, based upon a shopping investigator’s report, until the employee has been shown the report.
Labor Code §§ 3200, et seq. (Workers' Compensation)
Establishes system of workers’ compensation for work-related claims of injuries and Illnesses. Recognizes collective bargaining agreements that meet particular criteria as an independent alternative dispute resolution mechanism.
Labor Code § 3602 (Workers' Compensation Exclusivity and Exceptions)
Provides exceptions (e.g., employer’s physical assault, fraudulent concealment of existence of injury by employer, where employer is also manufacturer of product causing injury) to the exclusive remedy of the Workers’ compensation system established by statute.
Labor Code § 3751 (No Employee Payment of Workers' Compensation Costs)
Employees cannot be forced to pay any costs of workers’ compensation coverage; no reduction of wages or participation in profit sharing to offset workers compensation costs.
Labor Code § 3852 (Civil Suits Against Third Parties for Workplace Injury/Illness)
Injured workers may sue third parties who are not their employers for damages independent of workers compensation remedies.
Labor Code §§ 6300, et seq. (California Occupational Safety and Health Act of 1973)
Cal. OSHA enacted to assure safe and healthful working conditions.
Labor Code § 6310 (Safety or Health Complaints)
No employment discrimination for complaining or testifying concerning workplace safety or health concerns, or participating on safety committees.
Labor Code § 6311 (Refusal to Work in Unsafe Conditions)
Employees may not be discharged for refusing to work in conditions violating any occupational safety or health standard.
Labor Code §§ 6360, et seq. (Hazardous Substances Information and Training Act)
Employers must provide information (e.g., Material Safety Data Sheets) to employees regarding hazardous substances present in the workplace.
Labor Code § 6399.7 (Hazardous Substances Information and Training Act Complaints)
No employment discrimination for complaining or testifying concerning alleged violations of the Hazardous Substances Information and Training Act.
Labor Code § 6401 (Employer Must Provide Safety Devices)
All devices required for safe and healthful work environment must be supplied by employer.
Labor Code § 6404.5 (Smoking Restrictions in Workplace)
Prohibits smoking in all enclosed places of employment; includes workplace areas where no labor is performed.
Labor Code § 6408 (Posting of OSHA Information)
Employers must post information regarding protections and obligations of employees under occupational safety and health laws.
Labor Code § 6409.1 (Injury/Illness Reporting by Employer)
Requires employers to file reports of occupational injuries/illnesses resulting in lost time beyond date of injury/illness, or which requires medical treatment beyond first aid.
Labor Code §§ 7950, et seq. (Tunnel and Mine Safety Act)
Specific safety procedures and protections apply to mining and tunneling work.

 

Business and Professions Code

Business and Professions Code § 16600 (Restrictive Covenants): Generally, employers may not forbid employees from working for competitors.

 

Civil Code

Civil Code § 47 (Defamation)
False statements to third parties about an employee’s work history or reasons for termination can constitute defamation, if statement made with knowledge and/or with reckless disregard for its falsity.
Civil Code § 51 (Unruh Civil Rights Act)
Requires equal accommodations, advantages, facilities, privileges and services in business establishments.
Civil Code §§ 51.7 and 52 (Ralph Civil Rights Act)
All persons are to be free from violence or intimidation through threat of violence because of race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation or position in a labor dispute. Statute imposes $25,000 penalty, in addition to other damages.
Civil Code §§ 56, et seq. (Confidentiality of Medical Records)
Employers must establish procedures to insure confidentiality of employee medical information; no disclosure of medical information to third parties without employee’s written consent, with limited exceptions.
Civil Code §§ 1786-1786.56 (Use of Consumer Information in Employment Decisions)
Limits use of consumer information such as credit reports in employment decisions (e.g., employee or applicant must be notified of intent to use information, must be provided copy if requested and be given name of agency providing information if employment denied based thereon).
Civil Code § 1799-1799.2 (Bookkeeping Services May Not Disclose Records)
Persons maintaining bookkeeping information may not disclose it without express written consent of person for whom records are maintained. Sections may apply to bookkeeping records maintained by employer.
Civil Code § 3344 (Common Law Right of Privacy)
Employers may not knowingly use an employee’s name, signature, photo or likeness in any manner on or in products/goods or for advertising, without that employee’s consent, and may be liable for damages.

 

Education Code

Education Code § 48900.1 (School Visits by Parents of Suspended Pupils): Employee may not be discriminated against for parental duties such as visiting school of suspended child.

 

Election Code

Election Code § 14000 (Voting Leave): Employer must allow employee to take up to two hours off work to vote without loss of pay.

 

Government Code

Gov. Code §§ 8350, et seq. (Drug-Free Workplace)
Government contractors must take steps to prevent on-the-job drug use.
Gov. Code § 11135 (No Discrimination by Employers Who Undertake State Programs or Who Receive State Funds)
Employers who undertake programs or activities conducted, operated, or administered by the state may not discriminate on the basis of ethnic group identification, religion, age, sex, color or physical or mental disability.
Gov. Code §§ 12900, et seq. (Fair Employment and Housing Act)
Employers may not discriminate based on race, color, religious creed, national origin, ancestry, physical and mental disability, medical condition (including genetic characteristics), marital status, gender or sexual orientation, age (applies to employees 40 years of age or older), pregnancy, childbirth or related condition. The law prohibits discrimination in hiring, selection for training, discharge, compensation, or any terms of employment.
Gov. Code § 12945 (Pregnancy and Childbearing Disability Leave)
Female employees are entitled to up to four months of leave for pregnancy or childbearing-related disabilities. This is different from leave required by the California Family Rights Act and the Federal Family and Medical Leave Act.
Gov. Code § 12945.2 (California Family Rights Act)
Employees of eligible employers may take up to four months of unpaid leave for birth, adoption, foster care placement of child, serious health condition of family member or the employee. Applies to domestic partners.
Gov. Code § 12947.5 (Wearing Pants)
Employer cannot forbid employees from wearing pants based upon gender, in most situations.
Gov. Code § 12950.1 (Mandatory Sexual Harassment Training)
Employers with 50 or more employees must provide supervisors and managers two hours of mandatory sexual harassment training every two years.
Gov. Code §§ 16645—16649 (Prohibited Use of State funds for Opposing Unions)
State contractors may not use any portion of state funds to oppose or support unions.

 

Health & Safety Code

Health and Safety Code §§ 1596.881 and 1596.882 (Child Care Facility Complaints)
Protects employees of child care facilities from discrimination for reporting or testifying about alleged violations of child care facility standards.
Health & Safety Code §§ 25249.5-25249.13 (Safe Drinking Water and Toxic Enforcement Act Proposition 65)
Employer may not expose employees to chemicals known to cause cancer or reproductive toxicity.

 

Military & Veterans Code

Military and Veterans Code § 394 (Military Leaves): Employees are entitled to leave for purposes of service in any ordered military duty. Federal law provides additional protection.

 

Penal Code

Penal Code §§ 630, et seq. (Wiretapping, Recording and Unauthorized Listening into Private Communications): Unlawful to tap or make unauthorized connection with any telephone. Unlawful to attempt to learn or to learn contents of confidential communication without authorization of all parties to the communication and/or use any information obtained by means of prohibited wiretap. Statutory penalty and misdemeanor under § 632.

 

Unemployment Insurance Code

Unemployment Insurance Code § 3300 (Paid Family Leave): Employees may take up to six weeks of paid time off for family leave to care for family members and receive up to 55% of their wages.

 

IWC Wage Orders

The Industrial Welfare Commission is comprised of five members appointed by the Governor, and falls under the jurisdiction of the Department of Industrial Relations (DIR). The Industrial Welfare Commission is tasked with ascertaining the wages paid to California employees, the hours and conditions of labor and employment in the various occupations, trades and industries in which employees work, and to investigate the health, safety, and welfare of those employees. Broadly, the IWC is responsible for establishing labor laws and working conditions through IWC Wage Orders, which govern wages, hours and working conditions in California. Also under the jurisdiction of the DIR is the Division of Labor Standards Enforcement (DLSE), which adjudicates wage claims, investigates discrimination and public works complaints, and enforces labor law and the IWC wage orders.

The following are some of the more prominent IWC provisions:

IWC Wage Order (Various Numbers) § 3(A) (Overtime Payments)
Overtime non-exempt employee must be paid one and one-half times his/her regular rate of pay for work beyond eight hours in any workday or forty hours in any workweek and/or on the seventh day of any workweek. Employees must be paid “double” time after twelve hours in a day and after eight hours on the seventh day of the workweek.
IWC Wage Order (Various Numbers) § 3(B) (Alternative Workweek Schedules)
Alternative workweeks of four-day ten-hour shifts without daily overtime may be approved by employees, provided detailed election/voting procedures are observed. Employees who cannot work the alternative schedule are entitled to reasonable accommodations.
IWC Wage Order (Various Numbers) § 3(F) (Hot Meals for Certain Shifts)
Where a shift ends or begins between 10:00 p.m. and 6:00 a.m. and a meal period occurs within that shift, employer must make available hot food or drink or a place to heat food or drink and an adequately-sheltered place to eat.
IWC Wage Order (Various Numbers) § 3(G) (One Day's Rest in Seven)
One day in seven must be a rest day. Rest days may be accumulated during a one-month period.
IWC Wage Order (Various Numbers) § 4(B) (At Least Minimum Wage Must be Paid on Established Payday)
Each employee must be paid on payday at rate of not less than the applicable minimum wage.
IWC Wage Order (Various Numbers) § 4(C) (Split Shift Requires One Hour's Pay at Minimum Wage)
If employee works split shift, he/she must be paid one-hour’s extra pay at minimum wage, in addition to the minimum wage.
IWC Wage Order (Various Numbers) § 5(A) (Reporting Pay)
When an employee reports to work and is not put to work or works for less than a full day, employee must be paid at least two hours’ pay.
IWC Wage Order (Various Numbers) § 7(A) (Records Maintained by Employer)
Employer must keep the following accurate records (1) Full name, home address, occupation and social security number, (2) Birth date if under eighteen years old and designation that employee is a minor, (3) Time records showing when the employee begins and ends each work period. Meal periods, split shift intervals and total daily hours worked must be recorded. Meal periods need not be recorded if operations cease, (4) Total wages paid each payroll period, (5) Total hours worked in the payroll period and applicable rates of pay, and (6) Production record and formula if piece rates in effect. Records must be made readily available to employee upon reasonable request.
IWC Wage Order (Various Numbers) § 7(B) (Information to be Supplied as Part of Payroll Stub)
Semi-monthly or at time paycheck is furnished, employer must give to employee an itemized statement showing (1) all deductions, (2) inclusive dates of the period for which the employee is paid, (3) name of the employee or the employee’s social security number, and (4) name of the employer.
IWC Wage Order (Various Numbers) § 7(C) (Maintenance of Records)
Employers must maintain all required records in English and in ink or other indelible form; records must be properly dated and show month, day and year. Records must be maintained at place of employment or at central location for three years, and must be available to employee upon request.
IWC Wage Order (Various Numbers) § 7(D) (Clocks Must be Furnished)
Clocks must be provided in all major work areas or within reasonable distance thereof.
IWC Wage Order (Various Numbers) § 8 (No Deductions for Cash Shortage, Breakage, or Loss of Equipment)
Employers may not make deductions for cash shortage, breakage, or loss of equipment unless shortage, breakage or loss of equipment was caused by a dishonest or willful act or gross negligence of the employee.
IWC Wage Order (Various Numbers) § 9(A) (Uniforms and Equipment)
Uniforms required by employer must be provided and maintained thereby.
IWC Wage Order (Various Numbers) § 9(B) (Hand Tools and Equipment)
Employer must furnish required tools and equipment, unless the employee earns more than twice the minimum wage. Employee may be required to furnish hand tools and equipment customarily required within the trade/craft.
IWC Wage Order (Various Numbers) § 9(C) (Reasonable Deposit May Be Required)
Employer may require reasonable deposit for uniforms, equipment and hand tools and equipment. Employer may deduct costs of items not returned from final paycheck only if employee gives prior authorization for such deduction. No deduction allowed for “normal wear and tear.”
IWC Wage Order (Various Numbers) § 10 (Meals and Lodging as Credit Against Minimum Wage)
Employer may not credit meals and lodging against the minimum wage unless voluntary, written agreement exists between employer and employee. Meals mean a bona fide meal consistent with the work shift and adequate, well-balanced serving of variety of wholesome, nutritious foods. Lodging means living accommodations available to employee for full-time occupancy that are adequate, decent and sanitary according to usual and customary standards. Employees may not be required to share a bed.
IWC Wage Order (Various Numbers) § 11 (Meal Period Must be Provided After Five Hours)
Employer must provide meal period for workers working at least five hours; may be waived by mutual consent for shifts not exceeding six hours. Second meal period to be provided for shifts exceeding 10 hours. Timing of meal period is flexible so long as within first five hours for first period. Second meal period may be waived so long as employee took first meal period. On-duty (and paid) meal periods allowed in limited circumstances. Failure to provide all meal periods due results in payment of one hour’s pay for each daily violation.
IWC Wage Order (Various Numbers) § 12 (Rest Periods)
A ten-minute rest period is required for four hours’ work or major fraction thereof. Insofar as practical, rest period shall be during middle of shift. Failure to authorize and permit all rest breaks due results in payment of one hour’s pay for each daily violation.
IWC Wage Order (Various Numbers) § 13 (Change Rooms and Resting Facilities)
Employers must provide suitable lockers, closets, or equivalent for safekeeping of employees’ outer clothing during working hours, and when required for their work clothing during non-working hours. When change of clothing required, change rooms or equivalent space shall be provided in order that employees may change their clothing in reasonable privacy and comfort. These rooms or spaces may be adjacent to, but shall be separate from toilet rooms and shall be kept clean. Suitable resting facilities must be provided in area separate from toilet rooms and must be available to employees during work hours.
IWC Wage Order (Various Numbers) § 14 (Seats)
Employer must provide working employees suitable seats when nature of the work reasonably permits their use. When employees not engaged in active duties where standing is required, adequate number of suitable seats must be placed in reasonable proximity to work area, and employees permitted to use such seats when it does not interfere with work.
IWC Wage Order (Various Numbers) § 15 (Temperature)
Employer must maintain a work area with a temperature that provides reasonable comfort and is consistent with industry standards. Where work requires temperature less than 60 degrees, a heated room must also be provided. Temperature of not less than 68 degrees must be maintained in toilet rooms, resting rooms and change rooms.
IWC Wage Order (Various Numbers) § 20 (Additional Penalties)
Employer may be fined $50 for each “underpaid” employee for each pay period; $100 for subsequent violations. See also Labor Code § 558.
IWC Wage Order (Various Numbers) § 22 (Posting)
Employers must post appropriate IWC notice at all work sites.

 

Free Initial Consultation and Case Evaluation

There are time limits for filing statutory claims under the Labor Code and other Codes protecting workers’ rights — some as little as six months. Chami Law represents both individuals and groups of employees who have been victimized by their employers. If you believe that you have been the victim of unlawful employment discrimination or another wrongful practice in the workplace, contact the offices of Chami Law for a free consultation regarding your rights.