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What are the requirements relating to advertising open positions?
California law has no set time for advertising open positions for private employers.
What can employers do with regard to background checks and inquiries?
(a) Criminal records and arrests
Employers are prohibited from considering as a factor in employment or requesting job applicants to disclose information concerning:
- an arrest or detention that did not result in a conviction; or
- referral to or participation in a pre-trial or post-trial diversion program (Section 432.7 of the California Labor Code).
Section 432.7 also prohibits employers from asking job applicants about criminal records that have been expunged, sealed, or dismissed. California public employers are prohibited from asking about criminal histories on job applications, as are all employers in San Francisco. Employers cannot ask about most marijuana convictions older than two years (Section 432.8 of the California Labor Code).
(b) Medical history
Under the California Fair Employment and Housing Act, a California employer cannot require applicants to submit to medical or psychological examination. Further, employers cannot inquire into whether an applicant has a mental or physical disability or medical condition. It is also unlawful to make an inquiry regarding the nature and severity of a mental or physical disability or medical condition. However, an employer can inquire into an applicant’s ability to perform job-related functions and may respond to an applicant’s request for reasonable accommodation. Once an employment offer has been made, but before the commencement of employment duties, an employer may require a medical or psychological examination, provided that:
- the examination or inquiry is job related and consistent with business necessity; and
- all employees in the same job classification are subject to the same examination or inquiry.
(c) Drug screening
Drug testing is limited by California’s constitutional right to privacy. Typically, employers using drug testing as part of the hiring process are expected to conduct those tests post-offer and pre-hire.
(d) Credit checks
Credit checks are extremely limited in California. A consumer credit report is prohibited unless it is for:
- a managerial position;
- a position within the State Department of Justice;
- a sworn peace officer or other law enforcement position;
- a position for which the information contained in the report is required by law to be disclosed or obtained;
- a position that involves regular access (for any purpose other than the routine solicitation and processing of credit card applications in a retail establishment) to all of the following types of information of any one person:
- bank or credit card account information;
- social security number; and
- date of birth;
- a position in which the person is, or would be, any of the following:
- a named signatory on the bank or credit card account of the employer;
- authorized to transfer money on behalf of the employer; or
- authorized to enter into financial contracts on behalf of the employer;
- a position that involves access to confidential or proprietary information, including a formula, pattern, compilation, program, device, method, technique, process, or trade secret that:
- derives independent economic value (actual or potential) from not being generally known to, and not being readily ascertainable through proper means by, other persons who may obtain economic value from the disclosure or use of the information; and
- is the subject of an effort that is reasonable under the circumstances to maintain secrecy of the information; or
- a position that involves regular access to employer, customer, or client cash totaling $10,000 or more during the working day (Section 1024.5 of the California Labor Code).
(e) Immigration status
Employers are prohibited from discriminating, retaliating, or taking any adverse action against an employee because he or she updates or attempts to update his or her personal information—including immigration status—unless the changes are directly related to the skill set, qualifications, or knowledge required for the job (Section 1024.6 of the California Labor Code).
(f) Social media
Employers are prohibited from requiring or requesting an employee or applicant to do any of the following:
- disclose a username or password for the purpose of accessing personal social media;
- access personal social media in the presence of the employer; or
- divulge any personal social media, except when reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding (Section 980 of the California Labor Code).
Discrimination statutes apply to employers with as few as five employees. Harassment statutes apply to all employers.
Wage and hour
What are the main sources of wage and hour laws in your state?
The California Labor Code and Industrial Welfare Commission Wage Orders.
What is the minimum hourly wage?
Effective July 1 2014, the minimum wage in California is $9 per hour. Effective January 1, 2016, the minimum wage in California will be $10 per hour. Several cities (e.g., San Jose and San Francisco) have higher minimum wages.
What are the rules applicable to final pay and deductions from wages?
Deductions from wages are extremely limited in California. An employer can lawfully withhold amounts from an employee’s wages only:
- when required or empowered to do so by state or federal law;
- when a deduction is expressly authorized in writing by the employee to cover insurance premiums, benefit plan contributions, or other deductions not amounting to a rebate on the employee’s wages; or
- when a deduction to cover health, welfare, or pension contributions is expressly authorized by a wage or collective bargaining agreement (Sections 221 and 223 of the California Labor Code).
Advance authorization of lump-sum deductions from final pay is prohibited in California (Barnhill v. Sanders, 125 Cal.App.3d 1 (1981)).
Hours and overtime
What are the requirements for meal and rest breaks?
Section 512 of the California Labor Code states that an employer may not employ an employee for a period of more than five hours per day without providing the employee with a meal period of no less than 30 minutes. However, where the employee’s daily working time does not exceed six hours, the meal period may be waived by mutual consent of both the employer and employee. A second meal period of no less than 30 minutes is required if an employee works more than 10 hours per day. However, if the employee’s total working hours do not exceed 12 hours, the second meal period may be waived by mutual consent if the first meal period was not waived. Under the Wage Orders, employers must authorize and permit non-exempt employees to take a rest period. This rest period must be taken in the middle of each work period, insofar as this is practical. The rest period is considered time worked and paid. The rest period is based on the total daily hours worked and must be at the minimum rate of a net 10 consecutive minutes for each four-hour working period or major fraction thereof. The Division of Labor Standards Enforcement considers anything more than two hours to be a "major fraction" of four. A rest period is not required for employees whose total daily work time is less than three-and-a-half hours. Since employees are paid for their rest periods, they can be required to remain on the employer's premises during such periods.
What are the maximum hour rules?
The general overtime provisions—which are found in the Wage Orders—state that non-exempt employees who are 18 years old or older, or any minor employee who is 16 or 17 years old and is not required by law to attend school or otherwise prohibited by law from engaging in the subject work, cannot be employed for more than eight hours a day or for more than 40 hours in any working week, unless he or she receives one-and-a-half times his or her regular rate of pay for all hours worked over eight hours in any working day and over 40 hours in the working week. An overtime pay requirement also applies to a seventh consecutive working day.
How should overtime be calculated?
Overtime is calculated as follows:
- one-and-a-half times the employee's regular rate of pay for all hours worked in excess of eight hours, up to and including 12 hours in any working day and for the first eight hours worked on the seventh consecutive day of work in a working week; and
- double the employee's regular rate of pay for all hours worked in excess of 12 hours in any working day and for all hours worked in excess of eight hours on the seventh consecutive day of work in a working week.
Special California rules apply to salaried non-exempt employees. The regular hourly rate is one-fortieth of an employee’s weekly salary; additional remuneration is normally included in the regular rate. All hours over 40 in a working week (or eight hours in a day) must be paid at one-and-a-half times or double the regular rate (the fluctuating rate method used under the Fair Labor Standards Act is unavailable in this context).
What exemptions are there from overtime?
The Wage Orders include very limited exemptions for the following:
- executive, professional, and administrative employees, outside salespersons and computer software professionals (all orders except 14 and 16);
- employees directly employed by the state or any political subdivision thereof, including any city, county, or special district (all orders except 14 and 15);
- the parent, spouse, child, or legally adopted child of the employer, any individual participating in a national service program (e.g., AmeriCorps), and certain drivers, including those regulated by the U.S. Department of Transport (all orders except 11, 12, 14, 15, and 16);
- employees covered by a valid collective bargaining agreement, if the agreement expressly provides for the wages, hours of work, and working conditions, and if it provides premium wage rates for all overtime hours worked and a regular hourly rate of pay for those employees of no less than 30% more than the state minimum wage (all orders except 14 and 15);
- employees (except minors) whose earnings exceed one-and-a-half times the minimum wage and more than half of whose compensation is commissions (Orders 4 and 7);
- student nurses (Order 5);
- employees covered by a collective bargaining agreement under the Railway Labor Act (Order 9);
- taxicab drivers (Order 9);
- airline employees working between 40 and 60 hours during a working week due to temporary modifications to their normal work schedule not required by the employer and arranged at the employee’s request (Order 9);
- full-time carnival ride operators employed by a traveling carnival (Order 10);
- professional actors (Orders 10, 11, and 12);
- employees whose duties are exclusively those of a motion picture projectionist (Order 10);
- an announcer, news editor, or chief engineer employed by a radio or television station in a city or town with a population of 25,000 or less (Order 11);
- any employee engaged in work that is primarily intellectual, managerial, or creative, which requires exercise of discretion and independent judgment, and for which the remuneration is not less than twice the monthly state minimum wage for full-time employment (Order 14);
- sheepherders (Order 14);
- irrigators (Order 14);
- employees covered by a collective bargaining agreement, if the agreement provides premium wage rates for overtime work and a cash wage rate of at least $1 per hour more than the state minimum wage (Order 14);
- personal attendants (Order 15); and
- any person under 18 years old who is employed as a babysitter for a minor child of the employer in the employer's home (Order 15).
Some of these exemptions under California law are narrower than the corresponding exemption under federal law. For example, an outside salesperson in California must physically spend more than one-half of his or her working hours outside the office, even if it is otherwise established that his or her primary duty is outside sales.
What payroll and payment records must be maintained?
When wages are paid, employers must provide each employee with an accurate itemized written wage statement that includes:
- gross wages earned;
- total hours worked by the employee, except for any employee whose compensation is solely based on a salary and who is exempt from payment of overtime;
- the number of piece-rate units earned and any applicable piece rate, if the employee is paid on a piece-rate basis;
- all deductions, provided that all deductions made on written orders of the employee may be aggregated and shown as one item;
- net wages earned;
- the inclusive dates of the period for which the employee is paid;
- the name of the employee and the last four digits of his or her social security number or an employee identification number other than a social security number;
- the name and address of the legal entity that is the employer and, if the employer is a “farm labor contractor” as defined in Section 1682(b)of the California Labor Code, the name and address of the legal entity that secured the services of the employer; and
- all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee and, if the employer is a “temporary services employer” as defined in Section 201.3 of the California Labor Code, the rate of pay and the total hours worked for each temporary services assignment (Sections 221 and 223 of the California Labor Code).
Employers must also keep payroll records showing the daily hours worked by, the wages paid to, the number of piece-rate units earned by, and any applicable piece rate paid to employees employed at the respective plants or establishments in a central location in the state or at the plants or establishments at which employees are employed. These records must be maintained for three years.
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