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California Employment Law: An Employer's Guide

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Description

It is often said that it is impossible for an employer to fully comply with all of California’s employment laws. They are just too numerous and too complicated. They are frequently changing, and rarely for the better. There are so many traps for the unwary. Unfortunately, this perspective is mostly true.

How did this become so difficult? Part of the problem is that California deems itself to be special. All the employment laws that serve the rest of the country just fine are not considered adequate for California. Instead, the state has its own versions of these laws and its own bureaucracies to enforce them. Sometimes these agencies interpret California law consistently with similar federal laws, sometimes not, and sometimes it is not really clear.

But the stakes of getting it wrong are quite high for California employers. A simple mistake can lead to a seven-figure jury verdict or a class action lawsuit.

California Employment Law: An Employer’s Guide is written for those who must contend with employment law in California as part of their work. This includes employers based outside of California having employees working inside the state. It is written primarily for business people and HR professionals, although in-house counsel and lawyers who practice outside of employment law will find it useful too.

The book’s approach is practical. There is no lengthy analysis of court decisions, and there are no footnotes. The book is grounded in the law as it is found in statutes, regulations, and case law, but its focus is on how the law works in the real world.

The 2017 edition of this book addresses new developments in the law over the last year including the following:

  • California’s new “Equal Pay” law 
  • State and local minimum wage increases 
  • Local paid sick leave ordinances
  • Proposition 64 and its impact on drug free workplaces 
  • New regulations regarding transgender employees
  • New court ruling on “suitable seats”

California Employment Law: An Employer’s Guide supports the following SHRM Competencies: Consultation, Critical Evaluation, Ethical Practice, Global and Cultural Effectiveness, and HR Expertise.

If you are teaching California employment law and would like to consider this book for use in your course, please see SHRM’s exam copy policy at http://www.shrm.org/publications/books/pages/examcopies.aspx.


DETAILED TABLE OF CONTENTS

Chapter 1. California Employment Law: How Did This Become So Difficult?
• 1.1 Why California Employment Laws Are So Difficult
• 1.2 Which Law?
• 1.3 The Cost of Getting It Wrong
• 1.4 This Book's Purpose and Approach

Chapter 2. Employment at Will: What It Really Means
• 2.1 Exceptions to Employment at Will
• 2.2 Reinforcing Employment at Will
• 2.3 The NLRB and Employment at Will
• 2.4 Employment at Will versus "Right to Work"
• 2.5 The Limits of Employment at Will

Chapter 3. Arbitration of Employment Disputes
• 3.1 Why Arbitration Is a Good Idea
• 3.2 Potential Negatives Regarding Arbitration
• 3.3 Enforceability of Arbitration Agreements
• 3.4 Requiring Arbitration as a Condition of Employment
• 3.5 Use of Arbitration Agreement to Block Class Actions
• 3.6 Arbitration of PAGA Claims
• 3.7 The Franken Amendment and Executive Order 13673
• 3.8 Implementation of Arbitration Agreements

Chapter 4. Employee Handbooks
• 4.1 Introductory Language
• 4.2 Employment at Will
• 4.3 Introductory Period
• 4.4 Equal Employment Opportunity
• 4.5 Policy Against Harassment
• 4.6 Policy Against Retaliation
• 4.7 Employee Definitions
• 4.8 Overtime
• 4.9 Meal Periods
• 4.10 Rest Breaks
• 4.11 Lactation Breaks
• 4.12 Paid Holidays
• 4.13 Vacation
• 4.14 Paid Sick Leave
• 4.15 Family and Medical Leave Act/California Family Rights Act Leave
• 4.16 Other Medical Leaves
• 4.17 Pregnancy Leave
• 4.18 Bereavement Leave
• 4.19 Jury Duty Leave
• 4.20 Military Service Leaves
• 4.21 Other Required Leaves of Absence
• 4.22 Electronic Communications
• 4.23 Confidentiality
• 4.24 Social Media
• 4.25 Other Rules of Conduct
• 4.26 Open Door Policy
• 4.27 Arbitration of Disputes

Chapter 5. Employees or Independent Contractors?
• 5.1 Determining the Proper Classification
• 5.2 The Consequences of Misclassifying Employees as Contractors
• 5.3 Minimize Your Exposure with Independent Contractors
• 5.4 Other Issues Involving Independent Contractors

Chapter 6. The Hiring Process
• 6.1 The Importance of a Current Job Description
• 6.2 Where to Recruit
• 6.3 Staffing Agencies and "Temp-to-Hire" Employees
• 6.4 The Employment Application
• 6.5 Criminal Record Inquiries
• 6.6 Megan's List
• 6.7 Interviewing Job Candidates
• 6.8 The Use of Social Media to Screen Applicants
• 6.9 Testing of Candidates
• 6.10 Polygraph Testing
• 6.11 Pre-Employment Drug Testing
• 6.12 Background Checks
• 6.13 Reference Checks
• 6.14 Medical Examinations and Inquiries
• 6.15 Onboarding Documents

Chapter 7. Paying Employees Correctly
• 7.1 Sources of California Wage and Hour Laws
• 7.2 Coverage of California Wage and Hour Laws
• 7.3 Equal Pay
• 7.4 Minimum Wage
• 7.5 Requirement that Minimum Wage Be Paid for All Hours Worked
• 7.6 Unpaid Interns and Volunteers
• 7.7 Travel Time
• 7.8 Commuting Time
• 7.9 Preparation Time
• 7.10 Education and Training Time
• 7.11 Sleeping Time
• 7.12 Reporting Pay
• 7.13 Split-Shift Pay
• 7.14 Shift-Differential Pay
• 7.15 On-Call Pay
• 7.16 Uniforms, Tools, and Equipment
• 7.17 Meal and Lodging Allowances
• 7.18 Tips
• 7.19 Commissions
• 7.20 Vacation
• 7.21 Reimbursement of Expenses
• 7.22 Paydays
• 7.23 Form of Wage Payment
• 7.24 Deductions from Wages
• 7.25 Statement of Wage Deductions
• 7.26 Final Paycheck

Chapter 8. Overtime
• 8.1 Workday
• 8.2 Workweek
• 8.3 Regular Rate
• 8.4 Payment of Overtime on Bonuses or Commissions
• 8.5 Overtime May Be Mandatory
• 8.6 Unauthorized Overtime
• 8.7 Makeup Time
• 8.8 Overtime for Domestic Workers
• 8.9 Alternative Workweeks
• 8.10 White-Collar Overtime Exemptions Generally
• 8.11 The Executive Exemption
• 8.12 The Administrative Exemption
• 8.13 The Professional Exemption
• 8.14 Computer Professionals
• 8.15 Outside Salespersons
• 8.16 Inside Salespersons
• 8.17 Truck Drivers
• 8.18 Bus, Taxi, and Limo Drivers
• 8.19 Employees Covered by a Collective Bargaining Agreement

Chapter 9. Meals, Breaks, Pants, and Seats: Other Rights of Employees
• 9.1 Meal Periods
• 9.2 Rest Breaks
• 9.3 Cool-Down Breaks
• 9.4 The Right to Wear Pants to Work
• 9.5 Suitable Seats
• 9.6 Day of Rest
• 9.7 Lactation Breaks
• 9.8 Illiterate Employees
• 9.9 Employees' Political Activities
• 9.10 Secret Shoppers
• 9.11 Smoke-Free Workplaces
• 9.12 Restrooms
• 9.13 Changing Rooms and Resting Facilities

Chapter 10. Employee Privacy Rights
• 10.1 Source of Privacy Rights
• 10.2 Personnel Records
• 10.3 Medical Information
• 10.4 Social Security Numbers
• 10.5 Searches of Employees and Their Possessions
• 10.6 Monitoring Telephone Conversations
• 10.7 Video and Audio Recording of Employees
• 10.8 GPS Tracking
• 10.9 Monitoring of E-mail, Internet Use, and Social Media
• 10.10 Drug and Alcohol Testing
• 10.11 Lawful Off-Duty Conduct
• 10.12 Defamation in the Employment Context

Chapter 11. Protecting Trade Secrets
• 11.1 Sale of Business Exception
• 11.2 Out-of-State Noncompete Agreements Not Enforceable in California
• 11.3 Unlawful to Require Employee to Sign a Noncompete Agreement
• 11.4 Lawful Means of Protecting Trade Secrets
• 11.5 Confidentiality Agreements
• 11.6 Hiring Employees of a Competitor

Chapter 12. Employment Discrimination
• 12.1 Age
• 12.2 Disability and Medical Condition
• 12.3 Gender
• 12.4 Genetic Information
• 12.5 Marital Status
• 12.6 Military or Veteran Status
• 12.7 National Origin or Ancestry
• 12.8 Race or Color
• 12.9 Religion
• 12.10 Sex
• 12.11 Sexual Orientation
• 12.12 Bona Fide Occupational Qualifications

Chapter 13. Harassment
• 13.1 The Legal Standards
• 13.2 Sexual Harassment
• 13.3 Co-Worker Dating and "Love Contracts"
• 13.4 Other Forms of Unlawful Harassment
• 13.5 Failure to Prevent Discrimination and Harassment
• 13.6 Drafting an Effective Policy Against Harassment
• 13.7 Supervisor Training

Chapter 14. Accommodating Employees with Disabilities
• 14.1 Who Is Disabled?
• 14.2 "Qualified"
• 14.3 Essential Job Functions
• 14.4 Reasonable Accommodation
• 14.5 "My Disability Made Me Do It!"--Accommodation of Misconduct
• 14.6 The Interactive Process
• 14.7 Direct Threat
• 14.8 Disability Discrimination and Workers' Compensation
• 14.9 Medical Exams and Inquiries
• 14.10 Wellness Programs

Chapter 15. Leaves of Absence
• 15.1 Family and Medical Leave Act/California Family Rights Act Leave
• 15.2 State Disability Insurance Benefits
• 15.3 Paid Family Leave
• 15.4 Pregnancy Disability Leave
• 15.5 Paid Sick Leave
• 15.6 Military Leave
• 15.7 Military Spouse Leave
• 15.8 Jury Duty or Witness Leave
• 15.9 Voting Leave
• 15.10 Leave for Victims of Crime
• 15.11 Leave for Victims of Domestic Violence, Sexual Assault, or Stalking
• 15.12 School Leaves
• 15.13 Volunteer Emergency Responder Leave
• 15.14 Civil Air Patrol Leave
• 15.15 Organ or Bone Marrow Donor Leave
• 15.16 Bereavement Leave

Chapter 16. Conducting Workplace Investigations
• 16.1 Legal Reasons for Conducting Careful Investigations of Workplace Misconduct
• 16.2 Initiating the Investigation
• 16.3 Selection of the Investigator
• 16.4 Placing the Accuser and/or the Accused on Paid Leave
• 16.5 Preparation for the Investigation
• 16.6 Conducting Interviews
• 16.7 Resolving Credibility Issues and Reaching a Conclusion
• 16.8 Use of Polygraph During Investigations
• 16.9 Taking Appropriate Corrective Action
• 16.10 Creating and Maintaining an Investigative File

Chapter 17. Avoiding Retaliation Claims
• 17.1 What Constitutes Retaliation
• 17.2 Who Can Claim Retaliation
• 17.3 Retaliation in Violation of Laws Against Discrimination and Harassment
• 17.4 Retaliation in Violation of Leave Laws
• 17.5 Retaliation in Violation of Whistle-Blower Laws
• 17.6 Wrongful Termination in Violation of Public Policy
• 17.7 Avoiding Retaliation Claims

Chapter 18. Rightful Terminations
• 18.1 Setting Up a Defensible Termination
• 18.2 Severance Agreements
• 18.3 Reductions in Force
• 18.4 WARN Acts
• 18.5 Unemployment Insurance

Chapter 19. Unions and Labor Relations
• 19.1 Coverage of the NLRA
• 19.2 Employees' Rights Under the NLRA
• 19.3 Unfair Labor Practices Under the NLRA
• 19.4 The Process by Which Employees Select a Union as Their Bargaining Representative
• 19.5 Collective Bargaining
• 19.6 Strikes and Lockouts
• 19.7 Decertification and Withdrawal of Recognition
Appendix of Cited Cases

ENDORSEMENTS
James McDonald nails it! With the mountain of unique nuances that California labor law has it is nice to have a reference that is understandable for the rest of us. This useful tool is great for those situations that don’t come up every day (and a few that do). It’s California employment law simplified.

-- Ann Huston, SPHR, SHRM-SCP, Human Resource Manager, National Church Residences
California Employment Law is both an easy read that provides comprehensive education for an HR professional while also being a concise reference book on the many aspects challenging day-to-day HR management and administration.

-- S. A. “Sam” Murray, SPHR, CEO, ManagEase


ABOUT THE AUTHOR
James J. McDonald, Jr., J.D., SHRM-SCP, SPHR, is managing partner of the Irvine, California, office of the labor and employment law firm Fisher & Phillips LLP. He has more than 25 years of experience advising California employers about all aspects of labor and employment law, strategic human resource issues, and how to avoid employment claims and lawsuits. He has spoken before many human resource, business, and industry organizations, and he teaches labor and employment law in the Human Resources Management Program at the University of California, Irvine.

 

Additional Info

Name California Employment Law: An Employer's Guide
SKU 61.13004-2
Year published 2017
Page count 242
Publisher SHRM
ISBN 9781586443870
Author James J. McDonald, Jr.
Format Paperback