Which issues would you most highlight to someone new to your state?
California is infamous for its worker-friendly laws, which provide for greater levels of protection and entitlement than those of other states or at the federal level. The Plaintiff’s Bar in California is also among the most active in the nation, and employers there face a 42% higher chance of being sued by an employee than the national average (www.insurancejournal.com/news/national/2014/04/01/324942.htm).
New employers should be aware of the state’s increasing focus on equal pay issues, which have now been expanded to race and ethnicity and will likely continue to expand to other protected classes. New employers in California should also be aware of increasing requirements at the local level, as major cities now have ordinances on minimum wage, paid sick leave, work scheduling, and laws restricting pre-employment screening and inquiry (ban-the-box). The state also continues to protect immigrant workforce—which is among the highest in the nation—by criminalizing employers’ attempts to harass and exploit such employees.
What do you consider unique to those doing business in your state?
Doing business in the sixth largest economy can be rewarding, but carries a high risk for those who are unprepared when it comes to the state’s employment laws. California’s anti-discrimination law expands traditional protected classes to also include sexual orientation, gender identity/expression, political activities or affiliations, and military or veteran status, among others.
Wage and hour laws continue to be a difficult area for new employers, and mistakes here are especially unforgiving because of California’s Private Attorneys General Act, which allows employees to sue on behalf of the state in order to recovery additional penalties for Labor Code violations. California’s stringent laws on daily overtime, meal and rest breaks, “use-it-or-lose-it” policies, timely final wage payments, and wage statement reporting create a potential minefield for unwary employers.
Is there any general advice you would give in the labor/employment area?
Be ready to adapt to rapid and continuous change. The California legislature has been a key driver of pro-worker rights, so it is important to monitor key legislative developments that may affect employers. California regulations are also subject to enforcement by up to six different state regulatory agencies (far more than in other states), so an understanding of administrative rulemaking and enforcement is crucial.
Proposals for reform
Are there any noteworthy proposals for reform in your state?
Due to the high rate of Private Attorneys General Act lawsuits filed in recent years, attempts at reform have been made to curtail the frequency of such suits by private employees. The initiatives were not entirely successful, but are expected to continue in order to provide some relief to the state’s overburdened courts.
What are the emerging trends in employment law in your state, including the interplay with other areas of law, such as firearms legislation, legalization of marijuana and privacy?
California continues to expand its equal pay law, which now prohibits wage disparities due to gender, race, and ethnicity. This expansion is expected to eventually include the remaining California protected classes. An offshoot of these efforts is the recent prohibition of prior salary as the sole justification for pay disparities. In addition, employers are prohibited from even asking job applicants about their prior salary (this prohibition does not bar an employer from asking an applicant about their salary expectations for the applied for position).
Local ordinances in California’s major cities have expanded minimum wage and paid sick leave requirements above and beyond state requirements. More local jurisdictions are also joining the “ban the box” movement.
In the past few months, California’s employment law space has seen a flurry of activity illustrating the impact of the #MeToo movement. On September 30, 2018, Governor Brown approved bills conceived in response to the #MeToo movement that expand sexual harassment training to more employers and limit the employer’s ability to require employees to sign non-disparagement agreements. Specifically, SB 1343 reduces the requirement for sexual harassment training from employers with 50 or more employees to employers with five or more employees and includes non-supervisorial employees in the training. The bill requires at least two hours of sexual harassment training for supervisory employees and at least one hour of training for non-supervisory employees by January 1, 2020, and once every two years thereafter, as specified. Meanwhile, SB 1300 makes its unlawful for an employer in certain instances (e.g., as a condition of employment or continued employment) to require an employee to sign a non-disparagement agreement that denies the employee the ability to disclose information about unlawful acts in the workplace. SB 1300 creates an exception and does not apply to a negotiated settlement agreement to resolve a claim filed by an employee in court, before an administrative agency, alternative dispute resolution forum, or through an employer’s internal complaint process.
In addition, SB 1300 essentially eliminates the standard that the existence of a hostile work environment must be based on conduct that is sufficiency severe or pervasive. In other words, a single incident of harassing conduct is sufficient to create a triable issue on the existence of a hostile work environment if the harassing conduct unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment. Finally, SB 1300 makes clear that harassment cases are rarely appropriate for summary judgment disposition.
What state-specific laws govern the employment relationship?
The sources of California employment law are numerous, including a number of statutory codes and administrative regulations. California’s anti-discrimination and disability accommodation law is the Fair Employment and Housing Act. The California Labor Code contains expansive laws governing wages, working conditions, worker’s compensation, employment relations, among others. The Industrial Welfare Commission (IWC) Wage Orders contain additional wage and hour requirements for employees in specific industries. Employee leave laws include the California Family Rights Act and pregnancy disability leave laws. Article 1 Section 1 of the California Constitution provides all citizens with privacy, and this extends to employees. The Cal-WARN Act adds certain protections to employees in the event of mass layoffs, relocations, or plant closings.
Who do these cover, including categories of workers?
The Fair Employment and Housing Act covers an employee, an applicant, or a person providing services pursuant to a contract (Cal. Govt. Code § 12940). The meaning of “person providing services pursuant to a contract” has been interpreted broadly to also include contract workers and employees of an independent contractor (Hirst v. City of Oceanside, 236 Cal. App. 4th 774 (2015)). Volunteers and unpaid interns are now also protected under the act from discrimination and harassment (Cal. Govt. Code § 12940). Employers must also reasonably accommodate the religious beliefs of volunteers and unpaid interns (Cal. Govt. Code § 12940 (l)).
Independent contractors may file harassment claims against the employing entity but may not file discrimination or retaliation claims under the act. California independent contractors are not covered by requirements for payment of minimum wage, overtime, meal periods, rest breaks, vacation pay out, reimbursement of work-related expenses, or other similar benefits under wage/hour laws.
Are there state-specific rules regarding employee/contractor misclassification?
Sections 226.8 and 2753 of the California Labor Code prohibit the willful misclassification of individuals as independent contractors, and imposes civil penalties of between $5,000 and $25,000 per violation. There is no single definition of “independent contractor”, and different tests have been applied depending on the law implicated and context. For example, under the Fair Employment and Housing Act, an independent contractor:
- has the right to control the performance of the contract for services and discretion on the manner of performance;
- is customarily engaged in an independent business;
- has control over the time and place the work is performed;
- supplies the tools and instruments used in the work; and
- performs work that requires a particular skill not ordinarily used in the course of the employer's work (Cal. Govt. Code § 12940(j)(5)).
For purposes of determining whether an independent contractor is properly classified for wage and hour purposes, the Department of Labor Standards Enforcement (DLSE) follows the workers' compensation standard's multi-factor or economic realities test (see DLSE Enforcement Policies and Interpretations Manual §28 (2002 edition).
Must an employment contract be in writing?
Generally no written agreement is required. However, a commissioned salesperson’s agreement must be in writing (Cal. Lab. Code § 2751).
Additionally, California’s Wage Theft Protection Act requires employers to provide employees with written notice of their rates of pay, allowances, regular payday, and other information, at their time of hire and within seven days of any changes to such information (Cal. Lab. Code § 2810.5).
Are any terms implied into employment contracts?
There are implied covenants of good faith and fair dealing in employment contracts (Guz v. Bechtel National, Inc., 24 Cal.4th 317(2000)). Implied contract or implied terms may also be found based on an employer’s words or conduct, its personnel policies or practices, the employee's longevity of service, actions or communications by the employer reflecting assurances of continued employment, and the practices of the industry in which the employee is engaged (Foley v. Interactive Data Corp., 47 Cal.3d 654, 680 (1988)). However, where there is an express at-will agreement signed by the employee, it cannot be overcome by proof of an implied contrary understanding (Guz, 24 Cal. 4th 317, 340 n. 10 (2000)).
Are mandatory arbitration agreements enforceable?
Mandatory arbitration agreements are considered contracts of adhesion and therefore have been found to be procedurally unconscionable. They will therefore be enforced only if the terms are not substantively unconscionable (i.e., one-sided or harsh) and comply with the requirements in Armendariz v. Foundation Health Psychcare Services, Inc (24. Cal. 4th 83 (2000)):
- The agreement must provide the employee all remedies available in a court action.
- The agreement must provide for sufficient discovery to allow employees to gather necessary evidence to prove their claims.
- The agreement must provide for a written decision that will allow meaningful review.
- The employee cannot be required to pay any additional costs beyond those routinely faced in court litigation.
- The employer cannot limit the types of claim subject to arbitration such that only claims typically brought by employees are subject to arbitration.
Further, arbitration agreements cannot be used to waive an employee’s rights under the Private Attorney General Act, which must remain with the court even if the remainder of the case is sent to arbitration.
How can employers make changes to existing employment agreements?
Most employment agreements include express provisions requiring all modifications to be made in writing. Where employment is at will, the employer may unilaterally alter the terms of employment.
What are the requirements relating to advertising open positions?
Advertisements must not suggest a preference against applicants or independent contractors on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition (e.g., cancer-related conditions and genetic characteristics), genetic information, marital status, sex, gender identity, gender expression, age (40 years and older), sexual orientation, or military and veteran status of any person.
What can employers do with regard to background checks and inquiries?
(a) Criminal records and arrests
As a general matter, employers are prohibited from making any non-job-related inquiry of applicants or employees that directly or indirectly expresses a limitation, specification, or discrimination about any protected characteristic. In addition to the federal Fair Credit Reporting Act governing the use of background checks in employment, California employers must also comply with certain requirements in the California Investigative Consumer Reporting Agencies Act and the California Consumer Credit Reporting Agencies Act.
An employer may not ask an applicant about any arrest or detention that did not result in a conviction (Cal. Lab. Code § 432.7). Employers also cannot ask applicants to disclose information regarding a conviction for certain marijuana-related crimes or possession of certain drug-related paraphernalia when the conviction is more than two years old (Cal. Lab. Code § 432.8). With limited exceptions, employers may not ask for juvenile convictions or inquire or use information about juvenile arrests, detentions, or court dispositions in making an employment determination.
A new California law that went into effect on January 1, 2018 prohibits a covered employer from asking about or considering criminal history before a conditional offer of employment has been made.
(b) Medical history
As a general matter, employers may not inquire about any mental or physical disability or medical condition, but may ask an applicant if they can perform the essential functions of the job.
The Fair Employment and Housing Act prohibits employers from requiring applicants to take a medical or psychological examination prior to the initial job offer (Cal. Govt. Code §§ 12900 – 12996). After extending an initial job offer, the employer may ask the applicant to undergo a pre-employment medical exam or laboratory test, so long as it relates specifically to the essential functions of the job.
Background check reports may not include medical information without the employee’s or applicant’s authorization (Cal. Civ. Code § 1786.12(f)).
(c) Drug screening
There is no specific statute on drug screening, but California courts have generally permitted employers to require employees to pass a drug test as a condition of employment, so long as an employer tests all applicants and does not single out certain applicants due to protected characteristics. Note that employers in certain safety-sensitive industries such as transportation and aviation will be subject to federal drug testing laws.
The California Supreme Court has held that an employer may refuse to hire an applicant who tests positive for marijuana even where it is prescribed for medicinal purposes (Ross v. RagingWire Telecomms., Inc. 42 Cal. 4th 920 (2008)).
(d) Credit checks
Both California and federal law limits the use of credit reports for employment purposes. California law prohibits an employer or prospective employer from using a consumer credit report for employment purposes unless the report is sought for certain enumerated positions such as a managerial position. (Cal. Lab. Code § 1024.5). However, the prohibition does not apply to reports that both verify income or employment and do not include credit-related information, such as credit history, credit score, or credit record. (Cal. Lab. Code § 1024.5).
If an exception applies and an employer seeks to obtain and use a credit report, California law requires certain information be provided to the person involved through a written notice prior to requesting the report.
(e) Immigration status
The federal Immigration Reform and Control Act sets out certain requirements to establish authorization to work in the United States. California has additional requirements prohibiting employers from engaging in unfair immigration-related practices, such as using E-Verify to check a person’s authorization status at a time or in a manner not required under federal immigration law, or in retaliation for a person’s exercise of their employment rights under the Labor Code.
- Under Labor Code § 1019.1, employers may not request more or different documents than required under federal law to verify work authorization status;
- refuse to honor documents that look genuine;
- refuse to honor documents or work authorization based on the specific status/term accompanying the authorization to work; or
- attempt to re-investigate or re-verify an incumbent employee’s authorization to work using an unfair immigration-related practice.
A penalty of up to $10,000 per violation may be recovered by the applicant, employee, or by labor commissioner.
(f) Social media
While there is no specific statute prohibiting retrieval or review of applicant or employee social media information, relying on such information to make employment decisions can raise a host of issues under the state’s anti-discrimination and privacy laws. For example, an employer may be liable for discrimination if it conducts a social media search that reveals an applicant’s protected characteristics and then relies on such information in deciding whether to hire.
In addition, Section 7 of the National Labor Relations Act prohibits employers from discriminating or taking adverse action against employees who engage in protected concerted activity, which may include online discussions of wages, hours, or other working conditions.
California employers must also refrain from asking applicants to access a personal social media account in the presence of the employer, and may not require their employees to provide log-in information for their social media account (Cal. Lab. Code § 980(b)).
Employers may not demand or require applicants or employees to take a polygraph test nor request an applicant or employee take a polygraph test without first advising them of their rights under the Labor Code § 432.2.
Likewise, California employers cannot use the results of applicant or employee HIV tests for employment purposes (Cal. Health & Safety Code § 120980(f)).
Wage and hour
What are the main sources of wage and hour laws in your state?
The California Labor Code and the Industrial Welfare Commission (IWC) Wage Orders are the statutory laws dealing with wage and hour issues.
Wage claims can be especially problematic because an employee who prevails on a wage claim is usually entitled to an award of its reasonable attorneys’ fees in addition to any damages received. Employee wage claims are typically brought before a state government labor agency or through the federal or state civil judicial system.
What is the minimum hourly wage?
For employers with at least 26 employees, the state minimum wage is $11.00 as of January 1, 2018, and will increase as follows:
- $12 per hour starting January 1, 2019;
- $13 per hour starting January 1, 2020;
- $14 per hour starting January 1, 2021; and
- $15 per hour starting January 1, 2022 (Cal. Lab. Code § 1182.12).
Note that there are local ordinances with higher minimum wages (e.g., $11.50 in San Diego).
What are the rules applicable to final pay and deductions from wages?
In California, an employee who is terminated by the employer for any reason must receive payment on the date of termination for all wages earned through the final day of employment (including all accrued but unused vacation entitlement) (Cal. Lab. Code § 201). If the employee resigns employment, the employer has 72 hours after notice is given to provide payment of final wages (Cal. Lab. Code § 202). An employer’s willful failure to timely pay an employee’s final wages can result in the imposition of a significant waiting time penalty equal to one day of the employee’s wages for every day the payment is withheld, up to a maximum of 30 calendar days (Cal. Lab. Code § 203).
Hours and overtime
What are the requirements for meal and rest breaks?
Employees who work five hours or more per day must be provided with a duty-free uninterrupted 30-minute meal period. Meal periods must also be timely, meaning they are taken before the end of the employee’s fifth hour of work. If the employee is required to remain at the work site or facility during the meal period, the meal period is on duty and must be paid. If a meal period is not provided, is interrupted, or otherwise non-compliant, the employer must pay a premium equal to one hour of wages to that employee.
Employers must authorize and permit non-exempt employees to take a duty-free uninterrupted 10-minute paid, off-duty rest break for every four-hour work period or major fraction thereof. Rest breaks should be taken in the middle of the work period insofar as practicable. Employees working less than 3.5 hours are not entitled to a rest period.
What are the maximum hour rules?
Non-exempt employees must generally be paid 1.5 times the regular rate of pay for all hours worked over eight in a day up to and including 12 hours in any workday, as well as the first eight hours worked on the seventh consecutive day of work in a workweek (Cal. Lab. Code § 510). Non-exempt employees must be paid double the regular rate of pay for work performed over 12 hours in any workday and over eight hours on the seventh consecutive day of work in a workweek (Cal. Lab. Code § 510).
How should overtime be calculated?
The California Department of Labor Standards Enforcement (DLSE) relies on the Fair Labor Standards Act regulations to determine the regular rate of pay for the purposes of calculating overtime. The regular rate must include all remuneration for employment paid to or on behalf of an employee (Huntington Memorial Hosp. v. Sup. Ct., 131 Cal. App. 4th 893, 902-05 (Cal. Ct. App. 2005)). This typically includes hourly, salary and piecework earnings, commissions, on-call pay, non-discretionary bonuses (i.e., production and attendance bonuses), shift differentials, the value of certain meals and lodging.
Payments generally not considered to be remuneration and therefore are not included in the regular rate calculation include:
- payments for occasional periods when no work is performed (i.e., holiday and sick pay);
- gifts and rewards for service that are not tied to hours worked;
- production or efficiency (i.e., gifts for holiday/special occasions);
- discretionary bonuses (only if the employer has sole discretion over both the fact and amount of payment and the bonuses are not part of a contract or promise);
- payments under a bona fide profit-sharing plan or thrift or savings plan that are not tied to hours worked, production, or efficiency (29 C.F.R. §§ 778.200 - 778.225; Cal. Lab. Code § 200(a); DLSE Enforcement Manual, §§ 35.4.4, 35.7, 49.1 to 18.104.22.168 (2002)).
What exemptions are there from overtime?
Employees may be exempt from overtime if they satisfy the salary basis test (double minimum wage, currently $45,760) and their duties fall under the executive, administrative, or professional exemptions. Unlike the federal exemption analysis, California employees are subject to a strict duties test, meaning that employees must perform exempt job duties for over 50% of an employee’s working time in order to be exempt from overtime. This is a quantitative, not qualitative test and the exemption must be met every week.
California also recognizes limited exemptions applicable to:
- computer software professionals (as of January 1, 2018, salary test of $43.58 per hour or at least $90,790.07 annually for full-time work, and primarily conducts systems analysis or designs, develops, documents, analyzes, creates, tests or modifies computer systems or programs);
- commissioned employees (with earnings which exceed 1.5 times the minimum wage and greater than 50% of earnings represent commissions); and
- outside salespersons (primarily engaged in sales activity and who spend over 50% of their working time away from the employer’s place of business).
What payroll and payment records must be maintained?
Employees must keep accurate information related to each employee (e.g., name, address, occupation, social security number and date of birth), as well as:
- time records showing when the employee begins and ends each work period, meal periods, split shift intervals and total daily hours worked (rest periods and meal periods during which operations cease do not have to be recorded);
- payroll records showing total wages paid for each payroll period, including value of any board, lodging or other compensation actually furnished to the employee;
- wage statements should contain all of the information required under Labor Code Section 226(a), including the balance of available paid sick leave available or paid time off/vacation time in lieu thereof;
- total hours worked in the payroll period and the applicable rates of pay; and
- for piece rate or incentive plan employees, employers must list the piece rates or provide an explanation of the incentive plan formula. Employers must also maintain accurate production records (IWC Wage Order No. 15. § 7)).
All required records must be written, in English, properly indicate the month, day and year, and be kept on file for at least three years at the place of employment or at a central location in California (Cal. Lab. Code. § 226).
Records of wage and wage rates, job classifications, and other terms and conditions of employment must be maintained for all employees for at least three years (Cal. Lab. Code § 1197.5(d)).
Discrimination, harassment and family leave
What is the state law in relation to:
California law protects more categories of worker than federal law. Its anti-discrimination provisions apply to all employers with five or more employees, and its anti-harassment provisions apply to all employers with one or more employees (2 Cal. Code Regs. Tit. 2 § 11008(d)). Supervisors are not individually liable for discrimination (Reno v. Baird, 18 Cal. 4th 640 (1998)). However, all employees, including supervisors and managers, may be held personally liable for acts of harassment (Cal. Govt. Code § 12940(j)(3)).
California law has also recently been amended to provide unpaid interns, volunteers, and employees providing services under a contract (e.g., staffing agency employees) with the same legal protections as regular employees (Cal. Govt. Code § 12940(a)).
Age is a protected category under the California Fair Employment and Housing Act (Cal. Govt. Code § 12940(a)).
Race is a protected category under the California Fair Employment and Housing Act (Cal. Govt. Code § 12940(a)).
Actual or perceived disability is a protected category under the California Fair Employment and Housing Act (Cal. Govt. Code § 12940(a)).
Gender is a protected category under the California Fair Employment and Housing Act (Cal. Govt. Code § 12940(a)). In addition, gender identity and gender expression are also protected categories.
(e) Sexual orientation?
Sexual orientation as well as gender identity and expression is a protected category under the California Fair Employment and Housing Act (Cal. Govt. Code § 12940(a)).
“Gender identity” is defined to mean a person’s internal understanding of their gender, or the perception of a person’s gender identity, which may include male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth, or transgender.
In addition, regulations approved by the California Department of Fair Employment and Housing makes it unlawful to discriminate against a person who is transitioning, has transitioned, or is perceived to be transitioning. “Transitioning” is defined as a process some transgender people go through to begin living as the gender with which they identify, rather than the sex assigned to them at birth. The process can include, but is not limited to, changes in name and pronoun usage, facility usage, participation in employer-sponsored activities, or undergoing hormone therapy, surgeries, or other medical procedures.
Religion is a protected category under the California Fair Employment and Housing Act (Cal. Govt. Code § 12940(a)).
An employee’s medical condition is a protected characteristic under the California Fair Employment and Housing Act (Cal. Govt. Code § 12940(a)).
Protected characteristics under the Fair Employment and Housing Act also include national origin, color, ancestry, genetic information, marital status, sex, and military/veteran status, in addition to the categories listed above (Cal. Govt. Code § 12940(a)).
What is the state law in relation to harassment?
Harassment is prohibited on the basis of all of the protected characteristics listed above. In addition, individual employees, including supervisors, may be held personally liable for harassment (Cal. Govt. Code § 12940(j)(3)).
California law also mandates that employers with more than 50 employees provide at least two hours of anti-harassment training at least once every two years (and to new supervisory employees within six months of their assumption of a supervisory position) (Cal. Govt. Code § 12950.1(a)). Although initially limited to sexual harassment, this training requirement has been expanded to cover abusive conduct.
SB 1343 was recently passed to reduce the requirement for sexual harassment training from employers with 50 or more employees to employers with five or more employees and to include non-supervisorial employees in the training. The bill requires:
- at least two hours of sexual harassment training for supervisory employees by January 1 2020;
- at least one hour of training for non-supervisory employees by January 1, 2020; and
- further training once every two years thereafter, as specified.
In addition, as part of its obligation to take all reasonable steps necessary to prevent discrimination and harassment (Cal. Govt. Code § 12940(k)), an employer with five or more employees must develop written policies on the prevention of harassment, discrimination, and retaliation (2 Cal. Code Regs. Tit. 2 § 11023). These policies must also include a complaint process that meets certain minimum requirements, including confidentiality (to the extent possible), a timely response, an impartial and timely investigation by qualified personnel, documentation; appropriate remedial actions; and timely closures.
Family and medical leave
What is the state law in relation to family and medical leave?
The California Family Rights Act is broadly consistent with the federal Family and Medical Leave Act. However, there are a few key differences, including that the California act allows leave for a registered domestic partner, and certain requirements for bonding leaves.
More critically, it is defined not to include a pregnancy-related disability. Instead, a pregnancy-related disability is covered under California’s Pregnancy Disability Leave regulation (2 Cal. Code Regs. Tit. 2 § 11042). Pregnancy disability leave provides for leave of up to four months for the period of time during which an employee is actually disabled because of pregnancy (Id.) Pregnancy disability leave is separate from the California Family Rights Act, which provides for bonding time, and does not run concurrently. Consequently a pregnant employee may take up to a total of seven months of pregnancy-related leave.
Privacy in the workplace
Privacy and monitoring
What are employees’ rights with regard to privacy and monitoring?
Among the most important restrictions are the limitations on the use of certain background information, as discussed above. Employer should also be aware that California law restricts the unauthorized recording of conversations without the consent of all parties (which has led to a host of class-action lawsuits) (Cal. Penal Code § 632).
In addition, California maintains an all-purpose right to privacy, which applies in the employment context. For example, unless employers set clear limits on any expectation of privacy on company computers or using company resources, employees may be able to claim a right to privacy over personal emails, social networking, and records. Clear policy language is a requirement for any employer in California. This test also applies in the context of physical searches, such as lockers and desks.
California law also restricts taking adverse action against an employee based on lawful off-duty conduct (Cal. Labor Code § 96(k)).
Are there state rules protecting social media passwords in the employment context and/or on employer monitoring of employee social media accounts?
Yes. California employers are prohibited from requesting the disclosure of a social media username or password, requiring an applicant or employee to access social media, or to divulge any personal social media (subject to a limited exception for investigations of employee misconduct or violations of the law) (Cal. Labor Code § 980). In addition, information learned over social media (even if shared publicly) may give rise to issues concerning discrimination, harassment, retaliation, or protected concerted activity under the National Labor Relations Act.
Bring your own device
What is the latest position in relation to bring your own device?
Bring your own device policies are common in California. However, employers must be aware of their obligation under California Labor Code 2802, which has been interpreted to require reimbursement for costs (e.g., data even if the individual is on an unlimited data plan and there is no marginal increase in cost for the employee if they are doing work on their device) associated with the business use of an employee’s personal device. Many employers provide a flat monthly reimbursement rather than attempt to calculate what percentage of an employee’s data usage is attributable to work.
To what extent can employers regulate off-duty conduct?
California law restricts taking action against an employee based on lawful off-duty conduct (Cal. Labor Code § 96(k)). However, even though legalized under California law, employers retain the ability to administer drug tests and terminate the employment of individuals who test positive for marijuana (Ross v. Ragingwire Telecommunications, Inc., 42 Cal. 4th 920 (2008)). In addition, employers may of course terminate or take other disciplinary action against an employee who is under the influence of drugs or alcohol at the work site.
Are there state rules protecting gun rights in the employment context?
Trade secrets and restrictive covenants
Who owns IP rights created by employees during the course of their employment?
Generally, the IP developed by an employee by virtue of their employment belongs to the employer, although employers would be well advised to have an express IP assignment agreement in place (Cal. Labor Code § 2860).
However, employers cannot require the assignment of an invention that the employee developed entirely on their own time without using the employer’s resources, unless that invention either:
- relates to the employer’s business or actual or demonstrably anticipated research or development; or
- results from work performed by the employee for the employer (Cal. Labor Code § 2870).
What types of restrictive covenants are recognized and enforceable?
Subject to narrow restrictions in the sale-of-business context, non-competition and non-solicitation of customers provisions are void and unenforceable under California law (Cal. Bus. & Prof. Code § 16600). Indeed, attempting to enforce a non-competition agreement against a California employee, even if lawful in the jurisdiction in which it is entered, is considered an unfair business practice and may give rise to liability (Application Group, Inc. v. Hunter Group, Inc., 61 Cal. App. 4th 881 (1998)).
California will enforce reasonable non-solicitation of employee (anti-raiding) covenants (Loral Corp. v. Moyes, 174 Cal. App. 3d 268 (1998)).
Are there any special rules on non-competes for particular classes of employee?
No, because non-competes are generally unenforceable except in the sale of business context.
Right to work
Is the state a “right to work” state?
Unions and layoffs
Is the state (or a particular area) known to be heavily unionized?
Relative to other states, California could be seen as heavily unionized, as approximately 15.9% of workers were unionized as of 2015. Unsurprisingly given its size, California has the largest absolute number of union members.
What rules apply to layoffs? Are there particular rules for plant closures/mass layoffs?
California does have a mini-WARN Act. Its coverage is significantly broader than its federal counterpart (Cal. Labor Code § 1400 et seq).
Key differences include:
- Cal-WARN applies to employers with 75 or more employees (as opposed to 100);
- part-time employees are included;
- no numerical threshold of affected employees for purposes of a plant closing (or termination);
- a ‘mass layoff’ includes the layoff of 50 or more employees during any 30-day period regardless of the percentage of the workforce (under federal law it must affect at least 33% of the workforce, or 500 employees); and
- additional notice provisions apply among a number of other differences.
Discipline and termination
Are there state-specific laws on the procedures employers must follow with regard to discipline and grievance procedures?
No, unless employees are covered by a collective bargaining agreement.
At-will or notice
At-will status and/or notice period?
California is an at-will state, meaning that an employee may be terminated with or without cause at any time and for any lawful reason, with or without advance notice.
What restrictions apply to the above?
An employee’s at-will status may be modified by a collective bargaining agreement, or an express or implied contract between the employer and employee.
Employers are well advised to include specific at-will disclaimers in their company handbooks and any signed offer letters, and to further provide that at-will status may be changed only through an express, signed, written agreement (to limit implied contract claims).
Of course, an employee cannot be terminated for an unlawful reason, such as membership in a protected class or in retaliation for engaging in protected activity (e.g., complaining about discrimination, complaining about wage issues, or whistleblowing).
Are there state-specific rules on when final paychecks are due after termination?
Yes. In the case of a termination, the employee must be paid all wages (including accrued but unused vacation) due at the time of discharge (Cal. Labor Code § 201). An employee who resigns must be paid within 72 hours of their resignation (Cal. Labor Code § 202).