Shrm Index

Front 1

AB 1825

Back 1

Sexual harassment

Front 2

AB 1835

Back 2

Wages

Front 3

AB 211

Back 3

Medical privacy

Front 4

AB 2957

Back 4

CA WARN

Front 5

Accident investigations

Back 5

226 Employers required to investigate occupational injury and illness as part of their IIPP CCR Section 3202 Primary focus should be to gain understanding WHY it occurred and WHAT can be done to prevent it/ minimize potential reoccurnace

Front 6

Accomplice liability

Back 6

91 Employer can be held criminally liable for EEs' acts if employer knew or should have known- Charged with aiding and abetting aka "accomplice liability"

Front 7

Administrative exemption

Back 7

5 Non-manual, independent judgment, discretion and salary 2x minimum wage for FT employment

Front 8

Adverse action notice

Back 8

57 If an employer takes any adverse action based on a public record/report, they must provide a copy to the applicant/ employee even if they have already waived their right to receive a copy.

Front 9

Alternative workweek

Back 9

17 Under an established alt.workweek, EEs can work longer than 8hr days and be compensated regular rate of pay BUT no longer than 10hrs/ day and 40hrs/ week. Any OT from 10-12hrs = 1.5x pay rate
Any OT from 12+hrs = 2x pay rate. Must follow IWC procedures for setting up alt WW.

Front 10

Arbitration

Back 10

49 Fed & CA public policy favors arb. as alternative dispute resolution. CA mandatory arbitration must meet "Armendariz" standards; "procedurally unconscionable"- arbitration required as a condition of employment and "substantively unconscionable"- arbitration must be fair for both sides

Front 11

Armendariz standards

Back 11

50 CA mandatory arbitration must meet "Armendariz" standards; "procedurally unconscionable"- arbitration required as a condition of employment and "substantively unconscionable"- arbitration must be fair for both sides

If agreement has either unconscionable (meaning unscrupulous) than it will not be enforced in CA

Front 12

Arrests and convictions

Back 12

53 Arrests- Labor Code 432.7 Prohibited from asking about arrests that didn't lead to conviction or pre/post trial diversion program. Arrests don't indicate guilt and often racial profile. Prohibited from obtaining arrest or conviction info from any source other than employee. Exceptions to seek & use arrest/conviction info otherwise prohibited; health care provider/ sexual offense, controlled substance etc. Company may deny potential employee based on criminal convictions if able to show a nexus between position & conviction

Front 13

Asbestos Notification Act 1989

Back 13

239 Applies to building owners prior to 1979. Must provide written notice of reports/ surveys to tenants within 15 days of receiving report that ID the existence, location, quantity, potential health risk and handling procedures. Must make reports available to tenants

Front 14

Avila v Continental Air

Back 14

CFRA notification 158 Avila provided sufficient notice to Continental to request CFRA leave for a serious health condition. HR claimed they didn't get "medical form". Ruled "Hospitalization" qualifies as "serious health condition" under FMLA/CFRA. It rejected Continental's claim that they "didn't know" to circumvent future company's escaping liability.

Front 15

Background checks

Back 15

53 Conduct background checks that could potentially disqualify a candidate before asking for a medical exam. If using outside agency, follow ICRAA which requires applicant permission to run check & to offer right to copy of the report. If applicant requests a copy, must be sent w/in 3 days of receipt

Front 16

Bankruptcy

Back 16

Deductions 23 Organizations permitted to make deductions form EE's paycheck to comply w/ bankruptcy court orders & garnishment for child support. Can not discharge because a garnishment of wage has been threatened.

Front 17

Barnhill v Robert Saunders

Back 17

25 deduction from pay Final paychecks may not be subject to offset even for acknowledge debts of the employee to the employer.

Front 18

Be a Manager Go to Jail

Back 18

240 Corporate Criminal Liability Act 1989 Criminal liability for failure to disclose concealed hazards- A covered manager or employer is to provide notification to DOSH and warning to affected EEs in writing immediately if imminent risk or 15 days for serious concealed

Front 19

Bonus Types

Back 19

10 Discretionary- Not paid routinely and not base on objective criteria, not included in regular rate of pay
Nondiscretionary- Pre-announced, expectation of payment & included in regular rate of pay

Front 20

Bureau of Investigations

Back 20

220 Thru the Bureau, DOSH conducts criminal investigations of employer safety and health.

Front 21

Bureau of Labor Statistics

Back 21

218 Tracks workplace injury trends and believes more than 1/2 of workplace injuries are considered cumulative trauma disorders CTDs for instance RMI repetitive motion injury

Front 22

CA Asbestos Notification Act

Back 22

239 Owners must provide notification on an annual basis of the presence, level & location of asbestos in the building and new tenants must receive written notification within 15 days of commencement of work in the building. Failure to comply up to $1000 or 1yr jail or both

Front 23

CA Confidentiality of Medical Information Act CCMIA

Back 23

94 Existed before HIPPA Privacy Rule. Procedures for Employers to protect all personal health info possessed by org. Subject to extraordinary protection & kept apart secured from other records

Front 24

CA Continuation Benefits Replacement Act

Back 24

32 CA COBRA Affects non-govt companies w/ 2-19 EEs who offer health insurance coverage but are not covered by COBRA. EE must have a qualifying event; term, reduct in hours, death of EE, divorce, eligible for medicare, losing dependent status. EE must tell org/insur. co within 60days of departure. Org must tell insur. co w/in 30days. EE 60days to accept CA COBRA. Lasts 18 mos/ 29mos if disabled

Front 25

CA Database Protection Act

Back 25

244 Any person, agency, company doing business in CA required to disclose security breaches of electronically stored information that contains either; SS#, DL#, CA id#, medical info, credit card # w/ PIN under specific guidelines

Front 26

CA Emergency Management Agency

Back 26

233 The lead state agency for emergency management in CA.

Front 27

CA Military & Veterans Code

Back 27

173 Employers with 25+ must allow up to 10 days of unpaid leave during a "qualified leave period" to spend time with family while EE's military spouse is on leave from deployment

Front 28

CA Online Privacy Protection Act

Back 28

52 COPPA applies to websites that actively seek information from visitors; website must include a privacy policy which informs visitors how information may be stored, used etc

Front 29

CA Privacy Act

Back 29

97 CPA First designed to criminalize phone wiretapping but also extends to cover new communication technologies. **All parties to a conversation must be informed and consent to any recordings or monitoring.

More stringent than Federal Electronic Communication Privacy Act ECPA

Front 30

CA Social Security Card Number Law Civil code 1798.8

Back 30

96 Employer may not publicly post or display an individual's social security number which includes; access cards, transmit online unless encrypted, use of ss# as login although it's ok to use as a password

Front 31

CA Uniform Trade Secret Act/ Civil Code 3426

Back 31

242 Protects trade secrets defined as 1. information 2. valuable because unknown to others 3. owner has attempted to keep a secret

Front 32

CA Workplace Violence Act

Back 32

236 Provides specific rights for victims of violence including domestic violence to obtain restraining orders & injuctions as well as suggestions for Company to help employee who's become a victim. Company can get restraining order if they fear their other workers are at risk.

Front 33

CA WARN

Back 33

114 Covered Employer must give written notice 60 days before EE RIF unless the Co. can show an exception.

Front 34

CA OSHA Citation Postings

Back 34

226 Violation posting must be posted for 3 days minimum or until corrected

Front 35

CA OSHA Posters

Back 35

121 "Safety & Health Protection on the Job" is CA's poster and is an approved substitute for Federal OSHA notice. There are a few categories NOT covered by CA OSHA.

Front 36

CA OSHA Record Keeping Forms

Back 36

185 Form 300 records all work related illness and injury each calendar year; death, days away from work, restricted work/ transfer to another job, medical treatment beyond first aid, loss of consciousness, significant issue determined by licensed health official.

10 or less employee companies are exempt from CAOSHS record keeping unless specifically requested

All employers must file occupational injuries/ illness with Division of Labor Statistics & Research

Immediately report to DOSH any serious injury, illness or death

Front 37

CA OSHA Reporting of serious injury/ death

Back 37

229 Requires company to report fatalities or serious I&I to DOSH asap but no later than 8 hours after incident (VS Fed which only requires reporting of fatalities or mult. hospitalization)

Front 38

CA OSHA Appeals Board

Back 38

220 Handles appeals from employer regarding citations issued by DOSH for alleged violations of workplace safety and health laws.

Front 39

CA OSHA Consultation Unit

Back 39

220 DOSH Consultation Unit offers free training and consultation to assist employers in their efforts to comply with workplace safety and health regulations

Front 40

CA OSHA Violations & Cost

Back 40

230 CAOSHA is higher than Fed OSHA
General violation- $7000
Serious violation- $25,000
Willful or repeat violation- $70,000
Failure to abate- Up to $15,000/day
Failure to report- $5000 minmum
Can result in significant criminal penalties against employers and their managers in the $MMs

Front 41

CA OSHA Forms

Back 41

300, 300a, 301
pg 185, 226, 229

Front 42

Cat's Paw Theory

Back 42

108 A case for retaliation may survive- An employer may not be completely insulated from liability if there is evidence that a disciplinary course of events leading to the adverse action was inappropriate- either discriminatory or retaliation motivated

Front 43

CFRA certification

Back 43

159 CA employer may not use the FMLA medical certification form without modification. Under CFRA, the certification, the EE certificate need not identify the actual health condition facts nor ID for EE's family condition unless they allow it.

Employer may request certificate within 15 days of EE's request for CFRA leave.

Company may request 2nd opinion and third opinion. Third opinion is binding

Front 44

CFRA covered employers

Back 44

153 Any company with 50+ EEs & engaged in business in CA is covered and required to comply with it's requirements. EEs do not all have to work at same site or be FT. May NOT count contractors though nor Partners of partnerships.

Front 45

CFRA eligible employees

Back 45

153
1. must work in CA alongside 50+ EEs date if requested leave
2. employed w/ covered Company 1+yrs
3. 1250hr in CA within 12month period prior to date the CFRA is to start.
4. FT or PT as long as 1250hrs w/in 12 months
5. 12 months of employment include gaps in service
6. Must work at site or within 75 surface mile radius of the 50EEs

Front 46

CFRA method of calculating year

Back 46

157 4 methods for calculating
1. calendar year
2. fixed year based on fiscal year, EE's anniversary date etc
3. 12 month measured forward from date EE begins first leave
4. Rolling 12 month period measured backward from date EE uses any leave

Front 47

CFRA type of benefits

Back 47

152/154
12 weeks unpaid time off in 12 month period for
1. own serious health condition
2. immediate family serious health condition
3. care for newborn/ new-child bonding

Front 48

Chemical warning requirements

Back 48

237 Prop 65 Safe Drinking Wager and Toxic Enforcement Initiative 1986 prohibits business from discharging toxic chemicals into drinking water sources and requires them to give clear warning with regard to chemicals listed by the state as causing cancer or reproductive harm

Front 49

Commission on Health & Safety & Workers Compensation

Back 49

183 CHSWC is a joint labor-management body created by workers comp reform legislation in 1993 that oversees health, safety and WC

Front 50

Commissioned salespeople exemption

Back 50

6 Primarily engaged in sales, 1.5x minimum wage and over 50% compensation in commission. Covered by Wage Order 4 or 7

Front 51

Communications Decency Act

Back 51

97 Federal act- Used to dismiss Delfino v Aglient Technologies where Delfino threatened people using Agilent's computer. 3rd parties tried to hold employer accountable and Court said "no", did not want to encourage "extreme employer oversight of employee activities"

CDA- was the first notable attempt by the United States Congress to regulate pornographic material on the Internet. In 1997, in the landmark cyberlaw case of Reno v. ACLU, the United States Supreme Court struck the anti-indecency provisions of the Act.

Front 52

Compassionate Use Act of 1996

Back 52

49 AKA CA Prop 215 Under state law legal for individuals to use marijuana for prescribed medical use.

Front 53

Computer SW exemption

Back 53

6 Must earn $37.94/hr or $79,050/yr CA Labor Code Section 515.5 Adjusts the hourly rate annually

Front 54

Conley v Pacific Gas & Co.

Back 54

178 Vacation time may be debited in less than full day increments of time for exempt employees without impacting the overtime exemption status.

Front 55

Constructive discharge

Back 55

83 Legal theory under which a court will permit an employee who actually quit to bring a legal claim complaining of termination as though the employer terminated the employment- Circumstance that existed when the employee quit must have been so intolerable that a reasonable person in similar circumstances would feel compelled to quit

Front 56

Consumer Reporting Agencies Act CCRRA

Back 56

56 Separate but similar state law that imposes similar kinds of notice and consent requirements when seeking employee or applicant credit information that is EXCLUDED from the definition in ICRAA (Investigative & Consumer Reporting Agencies Act)

Front 57

Controlled Substance Act

Back 57

49 Federal law that prohibits the manufacture or possession of marijuana for any purpose

Front 58

Corporate Criminal Liability Act

Back 58

240 "Be a Manager Go to Jail" act- subjects managers as well as corps and LLCs to criminal liability for failing to disclose concealed hazards. Must provide notification to affected employees in writing immediately if imminent risk or w/in 15 days for serious concealed danger.

Fines up to $25,000/ manager $1M/ company & 3yrs jail/ manager

Front 59

Covenant of Good Faith

Back 59

82 A duty which means that neither party to a contract will deny the benefits of the contract to the other party and is automatically part of every contract. No contract- No breach. When express or implied contract, implied covenant of good faith and fair dealing may require "just cause" for employment decisions and/or prohibit terms made in bad faith or motivated by malice

Front 60

Crime Victims Leave

Back 60

171 Employer must provide unpaid time off for EE who is victim or who's immediate family is victim to a serious crime or felony to attend judicial proceedings related to the crime. Must keep records with reason for absence confidential. EE provide a notice of scheduled hearing.

Front 61

Cumulative trauma disorders

Back 61

218 CTDs make up over half the workplace injuries according to the Bureau of Labor Statistics IE RMIs repetitive motion injuries

Front 62

DE 542

Back 62

67 Form filed with EDD when Employer hires Independent Contractor who makes over $600 within 12/months

Front 63

Debit card (payroll)

Back 63

21 July 2008 Labor Commission issued an opinion letter allowing companies to use payroll debit cards as an alternative
1. must be optional
2. backed by a bank with place of business in CA
3. Total amount must be accessible/ 1 transaction per day w/out fees to access fund
4. Accessible for a minimum of 30 days past payday
5. Wage statement must still be provided

Front 64

Deduction from pay

Back 64

22 Unlawful to make deductions from unless
1. Empowered to do so by state or federal law including wage garnishment
2. Deduction is authorized in writing by EE, wage agreement, CBA to cover insurance premiums, benefit plans, union dues etc
3. If Company can prove EEs behavior was dishonest and caused a loss/ damage to company

Front 65

Delfino v. Agilent Technologies

Back 65

97 Communications Decency Act ruled against 3rd party charges that Agilent aided Delfino by providing the computer he used to create death threats. Did not want to encourage "extreme employer oversight of employee activities"

Front 66

CA Department of Insurance

Back 66

183 Licenses and regulates workers comp insurance carriers and investigates allegations of workers comp insurance fraud

Front 67

Department of Fair Employment & Housing FEHA

Back 67

43 People who believe they have experienced employment discrimination may file a complaint with the DFEHA within 1yr of alleged discrimination.
1. Must obtain a "right to sue' letter at time of filing with DFEHA to proceed to court
2. Alternate choice to court is allowing DFEHA to investigate.

Front 68

Department of Industrial Relations

Back 68

182/ 219
Directs CA OSHA & the Division of Worker's Compensation

Front 69

Deterrence test

Back 69

107 Materiality and Deterrence test- Deterrence can define an adverse employment action for retaliation purposes. Focuses on whether the employment action taken would deter a reasonable employee from engaging in the protected activity that the actual EE was engaged in

Front 70

DeVillers vs County of San Diego

Back 70

236 Employer not civilly liable for employee's murder of her spouse even though she learned how to murder and used the medical examiners drugs to kill her husband after he confronted about her affair w/ her supervisor. Employer is liable for retaliation against an employee but NOT liable for injury that occurs outside the workplace "Factual Nexus"

Front 71

DFEH Interview guide sheet

Back 71

51 A list of appropriate and inappropriate interview questions

Front 72

Different pay rates

Back 72

10, 14
If there are two or more rates of pay due to working 2 different jobs in the same workweek, travel time pay or similar situation, EE's regular rate of pay should be computed by determining the weighted average

Front 73

Discretionary bonus

Back 73

10 Bonus not paid out routinely and is not based on any objective criteria. NOT included in regular rate of pay.

Most bonuses are non-discretionary.

Front 74

Discrimination FEHA

Back 74

42
A- Age & Ancestry
C- Color & Creed
G- Gender
M- Mental disability, Medical Condition, Marital Status
N- Nationality
P- Physical disability
R- Race, Religion
S- Sexual orientation,

Front 75

Disposal of Consumer Report Info & Records

Back 75

57 Fed Trade Commission rule requires "proper dispose of all consumer reports or records derived from consumer reprots that can individually ID a person in order to reduce ID theft"

Front 76

Division of Workers Compensation DWC

Back 76

183 Administrative Director of the Division of WC (DWC) approves Employers with 50+EEs and a recognized labor union to create it's own alternatives to worker's compensation delivery and administration under a "carve out" program. The program is approved by DWC and in addition, a side agreement to a CBA is required.

Front 77

Department of Labor Standards Enforcement DLSE

Back 77

4, 19, 28, 64 aka "Labor Commissioner" is a division of the Department of Industrial Relations, 1 of 6 agencies w/in Labor & Workforces Development Agency

DLSE enforces Wage Orders, assists organizations with implementation of Wage Orders, Companies report alternative workweeks to DLSE after secret ballot Election w/in 30days results are finalized (tally, size of unit, nature of the org's biz).

DLSE adjudicates wage claims, investigates discrimination & public work complaints, enforces Labor Codes & Industrial Welfare Commission Orders, enforces minimum labor standards to ensure working above substandard conditions.

May file with Labor Commission or immediately with civil lawsuit bc there's no "administrative exhaustion".

Oversees employment of Minors & penalizes $5000-$10,000 depending on class of offense. LC 1303

Front 78

Division of Labor Statistics & Research

Back 78

7, 185
Section 515.5a of CA Labor Code Division of Labor Statistics & Research adjust hourly base rate for SW EEs.
Employers file occupational Illness & Injury

Front 79

Division of Occupational Safety & Health DOSH

Back 79

183, 219 Responsible for enforcing CA laws & regulations pertaining to workplace safety & health and for providing assistance to employers/EEs w/ workplace safety & health issues.

It has a broad enforcement & investigatory authority, conducts criminal investigations though its BOI Bureau of Investigations. Through its Consultation Unit, it offers free training and consultation to comply with S&H

Front 80

DLSR Form 5020

Back 80

187 Employers First Report of Occupational Injury or Illness Form 5020. Company has no later than 5 days to file report with their Workers Comp Carrier. Regulations for filing are still being finalized- Self Insured & Insurers are waiting next steps

Front 81

Document & Record Retention

Back 81

130 Governed by variety of bodies- maintain records for longest period required/ payroll indefinitely based on Ledbetter Fair Pay Act which allows significant amount of time for pay discrimination complaint.

Front 82

Domestic Partners

Back 82

30, 43, 156 CA Domestic Partner Rights & Responsibilities Act 2003 effective 1-1-2005 Employee registered domestic partners have smae rights as EEs spouse for benefits under CA Law.
1. 12 weeks CFRA to care for registered domestic partner
2. PTO, Sick, Kin-care for domestic partner children
3. Coverage under Health plan
4. Unemployment Insurance if EE quits to move w/ domestic partner due to employment
5. Cont. health insurance coverage if EE of the State retires or dies

Under Federal law, domestic partners do NOT qualify
CFRA/ FEHA/ CA COBRA Yes
FMLA/ FLSA/ COBRA No

Front 83

Domestic violence & CFRA

Back 83

164 CA domestic violence leave provision may also apply at the same time as a CFRA-covered leave.

Front 84

Dowell v Biosense Webster

Back 84

74 CA Court of Appeals held a non-competition and non-solicitation agreement void under CA Business & Professions code & Unfair Competition Law, affirming a judgement for 2 EEs and their new employer.

Court also cast doubt on whether any such restriction can be upheld based on a common-law "trade secret" exception to the states disregard for such agreements.

Front 85

Drug/ alcohol rehab time off

Back 85

93 Under CA Labor Code Section 1025, Company w/ 25+ EEs must accommodate EEs who wish to participate in substance abuse treatment unless it places undue hardship on company. Not required to provide PTO but EE can use sick time. Safeguard privacy, no retaliatory.

Front 86

Drug testing

Back 86

92 Employers with legitimate interest in avoiding use of illegal drugs in workplace are monitored by CA privacy concerns which impose limits.
1. Determine real purpose for testing
2. Application material should include written drug testing policy that all applicants sign as part of hiring process
5. Testing must be consistent for all applicants in like job classifications
6. Safety- sensitive positions subject to random testing & individualized reasonable suspicion of drug use

Front 87

DWC Form 1

Back 87

186 Workers Compensation Claim Form DWC Form 1- Employer gives to EE when injured if the I&I results in medical treatment beyond first aid or time lost beyond injury date. Must file w/in 1 yr of injury date.

Front 88

Earned Income Tax Credit Notice

Back 88

129 Employer must notify all EEs who are eligible for Unemployment Insurance that they may be eligible for Fed earned tax credit.

Employer must notify EEs they may be eligible for EITC (earned income tax credit) within 1 week of distribution of annual wage summary; W2 or 1099

Hand directly or mail to address instructions on how to obtain IRS notices; Notice 797 & Form W-5 or any notice created by Employer as long as similar to Notice 797

Employer must process Form W5 for advance payment of the EITC upon EE's request

Front 89

Earthquake preparedness

Back 89

232 Not expressly addressed in CA OSHA. HR and Members of Sr. Management Team should plan- CA Emergency Management Agency is lead state agency for emergency management in CA

Front 90

Emancipated minor

Back 90

59 FC 7050 Emancipated minors are subject all CA child labor laws except that they may apply for a work permit w/out their parents' permission

Front 91

Emergency management

Back 91

233 4 Phases of Emergency Management
1. Preparedness
2. Response
3. Recovery
4. Mitigation

Front 92

E-monitoring

Back 92

96 CA Supreme Court hasn't spoken broadly on topic yet. TBG Insurance vs. Superior Court ruled EE couldn't have reasonable expectations or privacy on a work owned computer where the company had a clear e-policy notifying EEs of the possibility of monitoring which EE specifically signed.

Court also said some form of monitoring had become so common-place it'd constituted a social norm in 21rst century electronic workplace

Front 93

Employee definition

Back 93

68 Def: Any individual performing services for wages or under any employment-related contract for hire. RIGHT Of CONTROL/ Right of Direction are important factors;IE Right to discharge at will & without cause

Front 94

Employee legal duties

Back 94

71 Various Labor Code Sections
LCS 2853- Use great care & diligence to protect Employer's interest
LCS 2854- Use ordinary care & diligence when performing work
LCS 2856- Comply with all Employers directions except when impossible or unlawful or unreasonable burden to EE
LCS 2860- Except compensation, everything EE acquires belongs to Employer, before & after term
LCS 2863- When EE has personal business similar to employers, employer's business take precedence

Front 95

Employee Literacy Education Assistance Act

Back 95

86 Labor Code Section 1040-1044
Employers w/ 25+ EEs must make reasonable accommodations and assist EEs in enrolling in adult literacy program. Support privacy but not required to provide time off

Front 96

Employer definition

Back 96

68 According to UI Code Section 675- Employer is an employing unit which for some portion of the day has within the current calendar year or had within the proceeding calendar year in employment 1+ EE & pays wages for employment in excess of $100 during calendar quarter.

Front 97

Employer's First Report of Occupational Injury

Back 97

187 DLSR Form 5020 Must file with their workers comp carrier asap but no more than 5 days after date of injury

Front 98

Employment Development Department

Back 98

65, 70, 123 EDD supports state activities and benefits programs by collecting and administering employment related taxes. Administers UI program according to UI Code and CA Code of Regulations Title 22.

EDD imposes extensive wage, tax and benefits liabilities in addition to fines for mis-classifying an employee as an IC
"IC or Common Law Employee for Use by State Agencies" and provides form 1870 to determine Form DE 1870

***Form DE 1857 is 3 EDD notices; UI- Unemployment Insurance, SDI State Disability Insurance, PFL Paid Family Leave

Front 99

Employment at Will

Back 99

81 AKA Labor Code Section 2922
Public policy favoring the free mobility of labor by specifying that either party to an employment relationship may end that relationship with or without cause or notice unless the parties have entered into a contract to change that status.

Front 100

Ergonomics

Back 100

222 CA Ergonomics Standard CCR Section 5110
Triggered when 1+ EE experiences RMI that a doctor finds work related within a 12 month period. Employer must develop a written program covering;
1. Work site evaluation
2. Control of exposure that caused RMIs
3. Training employees

Front 101

Executive Exemption

Back 101

5 Primarily manages the business, exercises discretion and independent judgement. Directs 2+ EEs w/ authority to hire/ fire/ advance. Monthly salary 2x minimum wage, 40hrs week

Front 102

Exempt status

Back 102

5 Labor Code requires classification- Exempt do not meet requirements for overtime pay, meal or rest periods.

Front 103

Express/ Implied contracts

Back 103

81 Created when 2 parties demonstrate mutual interest to be bound by terms of an agreement between them. An implied contract can arise when representations to EEs regarding job security or other guarantees.

Front 104

False time records

Back 104

20 Labor Code Section 206.5 Amended to help prevent employers from using false time records as a means of avoiding wage and hour litigation. EEs cannot be required to validate a statement of hours as a condition of getting paid when the Employer knows that the statement of hours is false.

Front 105

Family Code Section 6211

Back 105

170 Family Code Section 6211- 25+ EEs required to provide unpaid time off for victims of domestic violence who need to seek medical attention, service from a shelter/ crisis center, counseling or safety actions. Rights are NOT covered by FMLA and NOT mentioned in CFRA unless medical condition qualifies as serious health condition.

Front 106

Faust v CA Portland Cement Co

Back 106

160 An employers failure to to provide notice to EE of their right to take medical leave under CFRA precludes Company from taking any adverse action against employee including denial of leave.

CA Portland Supervisor refused Faust's request for time off. Subsequently the HR Rep refused to grant time off after EE submitted note from chiropractor. Company didn't inform CFRA rights and where therefore precluded from taking adverse action against EE

Front 107

FEHA

Back 107

42, 105 Fair Employment & Housing Act provides protection from
Discrimination
Retaliation
Harrassment

Provides remedies including; hiring, backpay, promotion, reinstatement, cease & desist, damages for emotional distress, fee reimbursement for attorneys, eye witness adminstrative

Front 108

Final wage payment

Back 108

24 Discharged, Fired, Laid off- all wages including accrued vacation must be paid at time of termination. EEs who quit w/out giving 72 hour notice must be paid within 72 hours of quitting (if they request check to be mailed, must be post marked w/in 72 hours of notice)

Failure to willfully pay may be assessed "Waiting Time" penalty equal to EEs daily rate of pay for each day wage remains unpaid u to 30 days max.

Exception- "Good Faith" disputed wages

Front 109

Fingerprints as a condition of employment

Back 109

57 Labor Code Section 1051 prohibits Employer from requiring applicants or employees to furnish fingerprints or photographs as a condition of employment if it's done to provide info to 3rd party and if info could be used to the individuals' detriment

Front 110

Form DE 1870

Back 110

70 EDD form provided to Employer to determine whether EE or IC for tax withholding purposes.

Front 111

Form DE 34

Back 111

66 EDD New Employee Registry Form completed for each new employee and reported to EDD w/in 20 days after EE starts work

Front 112

Form W5

Back 112

129 Earned Income Tax Credit Notice (EITC)
Employer must provide EEs with instructions on how to obtain any notices available from the IRS including IRS Notice 797 and Form W5.

Employer must process W5 for advance payments of EITC per EE request

Front 113

Franklin v Monadnock co

Back 113

224 Earlier cases have recognized that complaints about an unsafe working condition can lead to lawsuits, the Franklin case extends the protection of the statutes of good-faith complaints of a coworker's threat to have the employee killed

Front 114

FTC Disposal Rule

Back 114

57 Disposal of Consumer Report Information and Record Rule
Promulgated by FTC, requires business to "properly" dispose of all consumer reports that can expose them to ID theft.

Front 115

Garnishments

Back 115

23 Def: Judicial procedure through which an employees wages are required to be withheld for payment of a debt.

Front 116

Gelson's Market v WCAB

Back 116

199 Employers are not required to keep positions open indefinitely on the possibility that former employees may recover from an injury.

WCAB annulled a discrimination against industrially injured EE based on unclear return-to-work release- It held the WCAB didn't apply the standard established by CA Supreme Court bc the EE didn't make a showing that the Employer treated him differently from non-industrially injured employees

Front 117

General Industry Safety Orders

Back 117

220 GISO; I&I prevention, Personal protective equip, Emergency action plan, Fire prevention plan, Hazard comm, Machine guarding, Lockout, Tagout, Industrial trucks, Bloodborne pathogens, First aid, Storage of materials, General housekeeping, Industry Specific Safety Orders

Specific Industry Order trumps GISO

Front 118

Govenor's List

Back 118

237 Hundreds of toxic chemicals on the Prop 65 list that cause cancer or reproductive harm

Front 119

Gratuities

Back 119

23 An organization can't collect, receive or deduct from wages any gratuity given or left for EE

Front 120

Hanging Nooses hate crime

Back 120

237 Display of Hanging nooses as a symbol representing a threat for the purpose of terrorizing another is prohibited as a hate crime

Front 121

Harassment

Back 121

42, 45, 98 FEHA harassment policy broader than discrim & retaliat
1. applies to all employers 1+ EE
2. applies to ICs
3. supervisors liable for unlawful harassment (not for discrim or retal)

** FEHA does not recognize affirmative harassment defense, instead they allow it to go to court and exclude recovery for items that might have been avoided if the EE had reported harassment when it was occurring. "Doctrine of Avoidable Consequences"

Front 122

Hazard communication

Back 122

223 aka Haz-Com addresses Prop 65 compliance in the workplace. Imposes additional obligations on manufacturers who create MSDSs and broader requirements for safety & health training, broader EE access to chemical information

Front 123

Heat Illness prevention

Back 123

222 Applies only to outdoor employment. Supervisors must receive training on topic. EE access to well ventilated shade and water - 1 quart per EE per hour for entire shift. Incorp. into IIPP

Front 124

Hill v. NCAA

Back 124

88 Clarifies constitutional right to privacy as it applies to PRIVATE & public entities vs. the Federal version limits it to public

Front 125

HIPP

Back 125

128 Health Insurance Premium Payment Program notice
Employers with 20+ EEs required to notify their EEs who are being terminated either voluntary or involuntary of the availability of HIPP. Applies if the employer provides health insurance.

HIPP informs EEs of possibility of continued health insurance coverage at the state's expense.

Front 126

HIPPA

Back 126

94 CCMIA CA Confidentiality & Medical Information Act existed before HIPPA Health Insurance Portability & Accountability Act. All personally identifiable health info should be subject to protection and kept apart from other records/ secured w/ a privacy guard.

AB211 & SB541 regulate medical providers & their employees access to patient med info. Hold them liable for unlawful acccess/ disclosure w/ fine up to $250,000

Front 127

Holiday shutdown

Back 127

15 Used to reduce payroll expense and liability on the books for accrued but unused vacation time. Must provide in writing in advance to EEs. Nonexempt paid hourly, not a problem. Exempt must be paid UNLESS 90 day advance notice of using accrued vacation to cover shut down. If not adequate vacation, time will be pro-rated.

Front 128

Hostile environment

Back 128

47 EE can bring a hostile environment claim of sexual harassment under FEHA if a super has engaged in numerous office romances, creating an employment climate in which women are viewed as sexual playthings who obtain employment benefits through consensual sexual relations. An isolated consensual romance doesn't constitute a hostile environment for other employees. CA Employer can instill a "No workplace romance" policy

Front 129

ICRAA

Back 129

54 Investigative & Consumer Reporting Agencies Act
1. Co may not request outside agency to conduct background check until applicant/EE consents
2. On application/ request the disclosure must clearly define request
3. Unlike Fed law, CA law requires new consent each time report sought if for other than suspicion of wrong-doing
4. Must provide an the opportunity to request copy of report
5. If requested provide report w/in 3 days of receipt
6. ICRAA regulates types of info included in background
7. Rules void if EE under suspicion
8. Different set of rules for In-house ICRAA

Front 130

Implied contract

Back 130

81 Created when 2 parties demonstrate a mutual intent to be bound by the terms of an agreement between them. Can arise if Employers don't carefully maintain consistent oral and written communication with EEs. Job security or other guarantees may raise a danger of creating an implied employment contract.

Front 131

in loco parentis

Back 131

156 "in place of a parent" instead of a parent but charged with parent's rights and responsibilities of a child less than 18yrs old

Front 132

Independent contractor def

Back 132

69 IC "any person who renders service for a specified recompense for a specified result under the control of his principal as to the result of his work ONLY and not as to the means by which such results is accomplished.? Not eligible for UI, WC, payroll taxes

Front 133

Independently Wrongful Act

Back 133

78 An act proscribed by constitutional, statutory, regulatory, common law or other legal standard.

IE Reeves vs Hanlon case, wrongful conduct consisted of an intentional campaign to disrupt the business of the former employer (Hanlon law firm) by doing things such as resigning with out notice, recruiting former associates, soliciting clients, misappropriating trade secrets, destroying files

Front 134

Industrial Welfare Commission IWC

Back 134

2, 3, 61, 120 IWC made up of 5 members appointed by CA Govenor. Duty to ascertain the wages paid to all EEs in the state; hours & conditions of labor in different occupations & industries, investigate the health, safety and welfare of the EEs.

IWC provides broader definitions of how to track time/ hours for minors

Front 135

Industry Order- defined

Back 135

3 Industry Order regulates the wages, hours and working conditions in specific industries 1-13 EXCEPT 4
1 Manufacturing industry
2 Personal service industry
3 Canning Freezing Preserving industry
5 Public housekeeping industry
6 Laundry, linen, dry cleaning industry
7 Mercantile industry
8 Handling product after harvest industry
9 Transportation industry
10 Amusement & recreation industry
11 Broadcasting industry
12 Motion picture industry
13 Prep agriculture products for market industry

Front 136

Invention Assignment Agreement

Back 136

80 EE agrees to assign to Company any and all rights the EE may have in inventions and ideas that the EE generates through the employment with the organization.

Labor Code Section 2870- Void if invention is developed entirely on his own time w/out using the Employers equipment, supplies, facilities or trade secrets.

Prohibits requiring EE to sign an unenforceable invention assignment agreement as a condition of employment

When an invention assignment is first made, the Employer must then provide a written notification to the EE that the agreement does not apply to an invention that qualifies fully under the provisions of 2870

Front 137

Investigation by Outside Agency

Back 137

54 ICRAA Investigative & Consumer Reporting Agencies Act
Outside agency must only perform investigation after consent unless suspected of wrong-doing. Reports of public record must be validated w/in 30 days of report. Do not wish them to include anything but convicted arrests excluding marijuana possession charge w/2yrs

Front 138

Investigative & Consumer Reporting Agency Act ICRAA

Back 138

54 ICRAA Investigative & Consumer Reporting Agencies Act
Outside agency must only perform investigation after consent unless suspected of wrong-doing. Reports of public record must be validated w/in 30 days of report. Do not wish them to include anything but convicted arrests excluding marijuana possession charge w/2yrs

Front 139

IRS Form 1099

Back 139

67 For services rendered by IC, Employer required to file an information return to the IRS, Form 1099-MISC but not required to w/hold taxes from earnings.

Front 140

Jones v Torrey Poines Lodge

Back 140

106 CA Supreme Court reversed earlier law from appellate courts and concluded that individual supervisors cannot be held personally and individually liable for claims of retaliation.

The court viewed retaliation claims as analogous to discrimination claims for which individuals also are generally not liable.

Front 141

Jury or Witness Duty

Back 141

169 Labor Code provides that EE entitle to use accrued vacation or personal or compensatory time off during jury or witness duty unless otherwise specified in CBA. Employer may not discharge or term or discriminate for jury duty provided EE gives reasonable notice.

Exempt who work during any part of a day which they serve on jury must be paid for the day. EE who works any part of a week in which they serve on a jury must be paid for the week.

Front 142

Kin Care

Back 142

168 EE must be able to use at least 1/2 annual accrued sick leave in any calendar year to attend to sick immediate family member. Applies to any company regardless of size as long as they provide sick leave. EE must have the accrued sick leave in order to use.

Front 143

Labor & Workforce Development Agency- LWDA

Back 143

28 When filing a PAGA claim, EE must EXHAUST ADMINISTRATIVE REMEDIES and provide notice of the claim to the Company and to the CA Labor Workforce Development Agency. Once the notice is provided, the employee must wait 30 days for the LWDA to decide whether to conduct an investigation and if so, then wait 120 days for LWDA to complete investigation

Front 144

Labor Code Section 1051

Back 144

57 Fingerprints
Prohibits Company from requiring applicants or EE to furnish fingerprints or photographs as condition of employment if its done to provide the information to a 3rd party and if the info could be used to the individual's detriment

Front 145

Labor Code Section 1101

Back 145

83 Employee politics
1101 CA employers can't make, adopt or enforce any policy forbidding or preventing EE from engaging or participating in politics, becoming a candidate or otherwise control or direct political activities/ affiliations.

1102 No employer may influence or coerce by means of threat of discharge to adopt or refrain from politics.

Front 146

Labor Code Section 1303

Back 146

65 Illegal employment of minors
Misdemeanor for any person including a parent or guardian to employe or permit any minor to be employed in violation of the Labor Code.

Front 147

Labor Code Section 132a

Back 147

198 Workers comp retaliation
Violation for employer to terminate or otherwise discriminate against an EE for having filed or threatened to file a workers comp claim

Violation may increase WC award by 50% up to $10,000 plus costs up to $250 for fees

Critical Question: Did the Employer's actions cause detriment to the employee? (Intent to discriminate not required)

Front 148

Labor Code Section 201.3

Back 148

25 Temporary worker wages
Clarifies the payment of wages to temp employees. Temps should be paid at least weekly. If the assignment ends during the week, the final wages are not due to the EE on the last day of work but may be made at the next regularly scheduled pay period.

Front 149

Labor Code Section 206.5

Back 149

20 False time reports
Amended to help prevent employers from using false time records as a means of avoiding wage and hour litigation. EEs cannot be required to validate a statement of hours as a condition of getting paid when the Employer knows that the statement of hours is false.

Front 150

Labor Code Section 230

Back 150

235 Domestic violence

Front 151

Labor Code Section 2802

Back 151

86 Reimbursement of expenses
EE are generally entitled to be reimbursed for their costs and expenses incurred in the scope of their employment; travel expenses, cell phones, telephone calls, office supplies as well as
1. fees related to operating a bank account if EE is responsible for direct deposit payroll
2. legal costs and fees including any damages for claims related to EE conduct w/in scope of employment even after employment ended
3. Cost of car insurance beyond legal minimum if required by employer

Front 152

Labor Code Section 2854

Back 152

71 Employee obligation to use ordinary care and diligence when performing work for employer

Front 153

Labor Code Section 2860

Back 153

71 Employer's property rights
Everything which an EE acquires through employment except compensation belongs to the Employer whether during or after employment acquired lawfully or unlawfully

Front 154

Labor Code Section 3353

Back 154

69 Independent contractor any person who renders service for a specified recompense for a specified result, under the control of his principal ONLY for the result of his work and not the means by which it's accomplished.

Front 155

Labor Code Section 432.2

Back 155

86 Polygraph prohibited
Dictates that an employer can't demand or require any EE or applicant to take or submit to a polygraph, lie detector or similar test as a condition of employment/ continued employment

Front 156

Labor Code Section 432.7-8

Back 156

53 432.7 Prohibit use of arrest record if it didn't lead to a conviction or about a pre-trial or post trial diversion program.
Based on concerns that arrests don't indicate guilt and can lead to discriminatory impacts because some racial and/or ethnic groups may be subject to higher incidence of arrest rates

432.8 Prohibits asking an applicant or EE about convictions for minor marijuana offenses more than 2yrs old

Front 157

Labor Code Section 6310

Back 157

224 Retaliation for safety complaints
Prohibits discrimination or retaliation against an EE who complains of unsafe working conditions. Applies to complaints made to the employer or the union as well as CA OSHA or government agency

Front 158

Labor Code Section 6400

Back 158

225 Provides that every employer shall furnish employment and a place of employment that is safe and healthful

6401 requires every employer to do everything reasonable to protect the life, safety and health of EEs

Front 159

Labor Code Section 96k

Back 159

95 EEs privacy is protected in their off hours when they are not on the employers' premise. Protected against "Loss of wages as the result of demotion suspension or discharge from employment for lawful conduct occurring during nonworking hours away from the employers premises. The 1rst right listed that my be brought into court under PAGA

Front 160

Lactation accommodation

Back 160

167 Reasonable accommodation for EE who wish or need to express breastmilk. Private place other than a toilet stall in close proximity. EE uses break time and if additional time needed, they get non-paid time off.

Front 161

Language accomodation

Back 161

18, 85 Under FEHA Employers with 5+ EEs can't limit or prohibit the use of language except in rare circumstances where it's a business necessity- no alternate solution to language restriction would accomplish the business purpose

If at least 5% of affected EEs speak a language other than English, the disclosure must be provided in their language in a alternate workweek

Front 162

Lilly Ledbetter Fair Pay Act

Back 162

130 Federal act which significantly increased the amount of time an EE can file a pay discrimination complaint- Employers should keep payroll related documentation longer than max legal requirement if not indefinitely

Front 163

Literacy assistance

Back 163

86 Employee Literacy Eduation Assistance Act LCS 1040-1044

Employers 25+EEs make reasonable accommodation to assist EE who reveal an illiteracy problem and request Employer assistance in enrolling in an adult literacy program.

Front 164

Liu v Amway Corp

Back 164

174 Court held that Amway pressured Liu to reduce her leave time and discourage her from using her leave. Court held that Amway mis-characterized her leave as "personal leave", failed to assess her entitlement to PDL &CFRA. 3 factors supported the inference that Lius' protested leave was a factor in her termination
1. Lius' evaluations declined while on leave
2. Supervisors repeated denials of extensions & comments about his increased workload due to her leave
3. Proximity of time between the leave and Liu's termination

Front 165

Log of Work Related Injuries and Illness Form 300

Back 165

185 Employers with 10+EEs unless exempt. Used to record all work related I&I each calendar year; death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, I&I diagnosed by licensed health professional.

Front 166

Make-up Time

Back 166

14 IF EE misses time for personal situations, EE can request opportunity work longer hours on another day to make up the missed time. If available
1. Time made up during same workweek
2. Must be EE's free will and to put request in writing
3. Must not work more than 11 yrs/ no more than 40hrs in workweek
4. Employer doesn't need to pay OT as long as it doesn't exceed 11 hours

Front 167

Marijuana use

Back 167

49 Proposition 215/ Compassionate Use Act of 1996
Legal under state law for individuals to use marijuana for prescribed medical uses.

Front 168

Mass lay CA WARN definition

Back 168

115 Employer with 75+EEs in the preceding 12 months "covered establishment"
12 months before trigger event and the 75 EEs don't have to be working at the same time

Front 169

Material Safety Data Sheets MSDSs

Back 169

223 Intended to provide workers and emergency personnel with procedures for handling or working with that substance in a safe manner

Front 170

Materiality test

Back 170

107 Test clarified in Yanowitz decision- asks whether the employment action taken was sufficiently material to affect a term or condition of the EE's employment.

Yanowitz wasn't termed but he was subject to suddenly negative & unsupported negative performance evaluations and other circumstantial conduct indicating a retaliatory response.

Front 171

McDaneld v Eastern Municipal Water District Board

Back 171

174 Employer granted family leave to care for father recovering from surgery. McDaneld claimed needed more time to care for wife but was caught golfing. McDaneld termed, he sued claiming retaliation, court held Employer's good faith belief that McDaneld misused family leave.

Front 172

Meal periods

Back 172

16/ 30 minute meal period required every 5 hours
1. except when work period will not exceed 6hrs
2. should document EE waiving meal period for work day that ends within 6 hrs
3. Flexibility for meal breaks; waiving breaks or scheduling break at beginning of shift is subject to ongoing litigation
Brinker Restaurant vs. Superior Court- Can employer require "early lunches" 1 hour into a 6 hr shift so long as EE given 2nd meal break if EE works at least 10hrs.

Missed breaks violation is 1hr of regular pay period
May revoke waiver of pay period at any time
If EE required to eat onsite, must offer suitable place

Front 173

Medical exam fees

Back 173

23 If an organization requires an applicant for employment to undergo a medical exam, the company must pay the costs.

Front 174

Medical examinations

Back 174

53, 94 Ensure all other kinds of background checks are completed that could disqualify applicant before asked to submit to a POST offer medical examination. Exams should be used to evaluate the physical or mental ability to perform job related functions and keep info in separate confidential files.

Front 175

Medical provider network

Back 175

187 Exclusive treatment for their injured workers, made up of primarily occupational and at least 25% non-occupational treating physicians reasonably located near the injured worker's place of employment for timely treatment. The insurer has exclusive right to determine the physicians in the network which once constructed is submitted to the Administrative Director for approval (receive AD response w/in 60 days) 30-45 days to notify EEs of MPN which does NOT preclude EE's pre-designated physician of choice for work related injury/illness

Front 176

Medical records- access

Back 176

121 Employees have right to review their medical records especially when in environments that have exposure to toxic substances or harmful physical agents at work. "Safety & Health Protection on the Job"

Front 177

Minimum wage

Back 177

7 IWC governs minimum wage or hourly workers in CA.
1. Minimum CA wage $8hr
2. Section 515.5 adjust hourly base rate of pay for computer software engineers annually. $37.94 hr $79,050

Front 178

Minor- definition

Back 178

59 Wage Orders defines Minor as any person under 18yrs who is required to attend school under the provisions of the Education Code and and any person under age 6.

Front 179

Minor- employment

Back 179

58 Violations for child labor laws subject to civil penalties from $500- $10,000 as well as criminal penalties. Employers should ask school districts about required work permits.

Front 180

Minor- hours/ days

Back 180

62 Three categories;
16-17yrs
14-15yrs
12-13yrs
In Session vs Out out Sessions

Front 181

Minor- record retention

Back 181

64 Must keep all minor work permits on file and available at all times for inspection by school authorities & officers of the DLSE. Failure to present permits is prima facie and triggers a fine of $500 for first offense

Employers of minors must also keep for three years a record showing the names, ages (DOB) and addresses of all minors employed as well as time and payroll records required by the applicable IWC Wage Orders.

Employers who employ student learners must keep copy of the written agreement with the minor

Front 182

Minor employment- economic duress

Back 182

60 If a family can demonstrate need for the earnings of the minor, 14-15 year olds may be granted a permit to work full time during school hours and will then be enrolled in a Work Experience Education WEE program

Front 183

Moore-Brown- Roberti CFRA

Back 183

152 aka CA Family Rights Act for Companies engaged in CA with 50+EEs (can be in our out of state) Partners not included as EE
Unpaid leave for birth/adoption/foster child, serious health condition of EE or immediate family, called to active duty or EE caring for injured service member.
FMILA- doesn't recognize domestic partner
CFRA- recognizes domestic partner
12 weeks in 12 months,
EE (FT or PT) must be employed for over 1yr working 1250hrs prior to CFRA leave date
EE must work onsite or within 75mile radius

Front 184

Negligent hiring

Back 184

52 CA recognizes a legal claim against an employer for negligent hiring- if a person is injured as a result of conduct by an EE, the Employer may be liable if they knew or had reason to know that the EE was unfit for the job or if the employer failed to use reasonable care to discover whether the EE was fit for the job.

Front 185

New employee registry

Back 185

66 Form DE 34 to be filled out within 20days of new EE start date

Employers who hire employees in more than one state may elect to report electronically all newly hired employees to one state in which they have employees. This will relieve employers of the need to report new hires to several different states. Multistate employers who choose to file to one state must notify the federal Department of Health and Human Services’ Office of Child Support Enforcement. See Reporting Formats for information on electronic reporting.

Front 186

No smoking

Back 186

229 Signs must be posted designating where smoking is prohibited or permitted in a place of employment

Front 187

Non-competition agreement

Back 187

72 Unenforceable in CA adn do not make signing or compliance with them a condition of employment. Ok to request non-compete as long as it remains optional. Theory is that EE will sign out of personal loyalty. Must ensure EE understands signing is NOT required

Front 188

Nondiscretionary bonus

Back 188

10 Bonus is pre-announced and EE have expectation of payment. Bonus based on objective criteria.

Front 189

Nonexempt

Back 189

5 EE not exempt from OT, meal and rest breaks.

Front 190

Non-solicitation agreement

Back 190

72 An agreement by one party not to compete with the business of another party typically limited to a specific time period after the employment ends and/or to a specific geographic area. Nearly always void in CA.

Front 191

Non-worked hours

Back 191

9 Non-worked hours are not included in OT calculations

Front 192

Occupational order

Back 192

3
4 Professional occupation
14 Agricultural occupation= Sheep herders $1200 + room & board
15 Household occupation
16 Onsite occupation
17 Misc occupation

Front 193

Occupational Safety & Health Standards Board

Back 193

220 A standard setting body for OSHA. Has the authority to grant or deny applications for variance from adopted standards and to respond to petitions for new or revised standards

Front 194

Older Worker's Benefits Protection Act

Back 194

120 A Federal issue but every CA OSHA notice will also need to ensure compliance with the group disclosure requirements of the OWBPA if the employer offers severance in exchange for general release.

Front 195

On-call pay

Back 195

12 Depends on the degree to which the EE is under the Company's control. Consider the degree of the restriction on the EEs freedom; on Co's property, impact on the ability to perform personal business.

May be paid a different rate than normal pay rate.

Front 196

On-duty meal period

Back 196

16 On duty meal period occurs when EE is not relieved for 30minute meal break and is counted "on-duty", counted as work and allowable only when the nature of the work prevents the employee from being relieved of all duty and when there is written mutual agreement between Company and EE

Front 197

Organizational property

Back 197

70 Organizational property law's stakes are potentially hihger than in any other area of employee and labor relations.
LCS 2853 great care to protect Company's interest
LCS 2854 ordinary care to perform work
LCS 2856 comply with Employers direction
LCS 2860 everything except comp belongs to Company
LCS 2863 Company receives priority in similar biz circumstance

Front 198

OSHA

Back 198

121 Occupational Safety and Health Act Post the "Safety & Health Protection on the Job" poster developed by CA OSHA instead of Fed OSHA

Front 199

Outside sales exemption

Back 199

6 Primarily engaged in sales, spends more than 50% outside office selling tangible and intangible goods. Must be over 18yrs

Front 200

Overtime

Back 200

8-10, 14
Pay 1.5
8+hrs in a work day
First 8 hrs worked for any reason on the 7th consecutive workday
Any hours worked over 40hrs straight in same workweek

Pay 2.x
Any hours worked over 12hrs in one day
Any hours worked over 8hrs on the 7th consecutive workday in wk

Used weighted pay rate average for 2 jobs w/ different rates

Consider when figuring weighted average for travel time which is paid at a different rate

Front 201

Overton v Walt Disney

Back 201

14 Court found that Walt Disney was offering NOT requiring EEs transportation in a company provided tram. EE had the option to take alternative forms of transportation, so since tram was optional the travel time was not considered to be paid work time

Front 202

Paid family leave PFL

Back 202

123, 127, 176
2004 CA Law extended SDI to cover time off for elibible EE to care for seriously ill immediate family or bond w/ new baby. Paid up to 6 weeks within 12 month period. 7 day waiting period.

NOT A LEAVE RIGHT (Leave right is CFRA)
A WAY TO RECEIVE BENEFITS once on authorized company leave. Funded through EEs payroll deduction and administered by EDD. Must have worked 5-17 months before filing, made over $300. 1.2% taxed wages, takes 7 days to begin, lasts for 6 weeks

EE right to collect partial wage replacement through SDI during PFL to bond with baby or care for seriously ill immediate family

EDD oversees UI, SDI and PFL- All EEs may not be covered by all 3

Front 203

Paid time off PTO

Back 203

177
Sick Leave- Not analogous to earned wage and contingent on Employer, it does NOT need to be paid upon termination or carried over year after year.

Vacation Leave- IS analogous to earned wage and is akin to earned wages, is paid out upon term and carried over year after year. Vacation time can not be taken away "Use it or lose it" BUT can be capped within reason.

DLSE worker must have at least 9 months after the vacation accrues before a cap will be deemed effective. "DLSE Manual" states "vacation policies that require vacation to be used in the year it is earned or in a very limited time following accrual period will not be enforced. Originally suggested a cap 1.75 times the annual accrual rate

Front 204

Payday notice

Back 204

121 All EE have the right to know the time and place of payment of their wages through a poster placed in an area available to all EEs. An employer developed poster is allowable.

Front 205

Payroll- timing & payments

Back 205

20 Required to pay twice during a calendar month on days designated in advance as regular paydays. Must post notice of the days.

Wages earned 1-15th must be paid no later than the 26th
Wages earned 16-EOM must be paid no later than the 10th
CBA may have an alternate schedule

Other alt pay sched's; wages paid weekly, bi-weekly etc must pay w/in 7 calendar days of the end of the payroll period

Failure to pay: 1rst violation $100 each EE/ Subsequent violations $200 + 25% of amount unlawfully held

Front 206

Payroll- debit cards

Back 206

21 Companies allowed to use debit cards as alternative to pay EEs
1. optional
2. bank in CA
3. total funds accessible
4. 1 transaction per day for free, minimum 30 day access
5. wage statement still presented

Front 207

PDL covered employees

Back 207

164 PDL is part of FEHA and has same coverage rights, 5+EEs
Eligible when health provider determines EE unable to perform essential functions of job due to pregnancy or related med condition without undue risk to her or unborn baby; includes morning sickness and time off for prenatal care.

Employer must honor request for temp transfer for less strenuous positon AND reasonable accommodation for conditions related to preg/ childbirth

PDL is UNPAID unless Employer pays for other temp disability leave.

Front 208

PDL duration of leave

Back 208

167 PDL protected leave up to 4 months/ 88 workdays
If Company extends longer LOA for disability, Pregnancy gets same Company disability policy. PDL is UNPAID unless Employer pays for other temporary disability leaves

May be taken off intermittently or reduced work schedule when med. necessary

Front 209

PDL employment eligibility

Back 209

167 NO length of service requirements- eligible for preg leave upon hire. For Employers who do not provide any paid leave for temp disability, employees on PDL MAY ELECT to substitute accrued vacation or PTO (other than sick leave) for the otherwise unpaid portion of the PDL. Employer MAY FORCE EE to use accrued sick leave during the unpaid portion. EEs generally eligible for SDI program.

Front 210

PDL Title VII

Back 210

166 PDL is UNPAID unless Employer pays for other temporary disability leaves

Employer NOT covered by Title VII are companies w/ 5-14 EEs that pays for other disability leaves MUST PAY an EE disabled by pregnancy 6 weeks accrued leave for pregnancy (vs 4 months)

Front 211

Penal Code Section 499x

Back 211

71 Makes it a crime for an employee to steal trade secrets

Front 212

Penal Code Section 530.5

Back 212

71 Makes it a crime for an employee to willfully obtain "personal identifying information" about an individual and then uses the information for any unlawful purpose.

Front 213

Penal Code Section 630-637

Back 213

97 aka California Privacy Act (CPA) was first designed to criminalize phone wiretapping and also extends to cover newer communication technologies.

Mirrors Electronic Communications Privacy Act ECPA but more stringent.

All parties must be informed and consent to recording/ monitoring of it.

Front 214

Permit to Employ and Work

Back 214

60 Form B1-1 issued by the CA Department of Eduction. Permits required even when school NOT in session. Issued for specific employment at specific address, contain maximum hours a minor may work in a day/ week, range of hours during the day, occupation limitations, restrictions imposed by school's discretion.

Violations subject to permit revocation

Front 215

Permitted wage deductions

Back 215

23 Organizations permitted to make deductions for Garnishments (child or spousal support) & Bankruptcy. Cannot discharge EE

Front 216

Personal physician designation

Back 216

184 Employers who offer a Health Care Organization HCO for workers' comp injuries must also provide a personal physician designation form. Form allows EE to designate in advance a personal physician to provide medical care for workplace injuries. Form must be provided at the time of hire and at least annually.

Front 217

Personal protective equipment

Back 217

220 CA OSHA's General Industry Safety Orders (GISOs) include personal protective equipment

Front 218

Photograph fees

Back 218

23 If Company requires a photograph of an applicant of EE, the Company must pay the associated costs.

Front 219

Photos as condition of employment

Back 219

57 Labor Code 1051 prohibits use of fingerprints or photographs as condition of employement if it is done to provide a third party the information and it the infor could be used to the individual's detriment

Front 220

Physical exam fees

Back 220

23 If Company requires a physical exam as a condition of employment or EE undergo in accordance w/ Fed or State law or regulations to perform the job duties, the Company must pay the associated costs.

Front 221

Political involvement

Back 221

83 Labor Code 1101 prohibits CA employers from forbidding or preventing EE from engaging in politics or from becoming candidates for public office or otherwise tending to politics

Front 222

Posters

Back 222

120 All Employers must meet workplace posting obligations. CA Department of Industrial Relations requires employers to post information related to wages, hours, and working conditions in an area frequented by EEs and applicants that can be easily read.

Front 223

Prachasaisoradej v. Ralphs Grocery Company

Back 223

27 Court addressed the envorceability of profit-based bonus plans. Court rejected that the Employer's supplemental profit-baed incentive bonus plan vilated CA Labor Laws bc bonuses under the plan were calculated AFTER reducing store profits by costs. CA Court found EEs had NO expecation of compensation UNTIL after store profitability had been determined. Calculating bonuses AFTER store profitability IS NOT "Unlawful Recovery" of business expenses from an EE's wages. **Nondiscretionary bonus is part of wage

Front 224

Pre-employment inquiries

Back 224

45 The anti-discrimination principals under FEHA render many pre-employment inquiries inappropriate and unlawful bc they may relate to protected categories and can lead to unlawful discrimination

Front 225

Pregnancy Disability Law PDL

Back 225

164 CA law has separate statutory schemes for PDL and medical/ family leave. CA laws were enacted at different times both prior to FMLA.

Employers with 5+EEs are covered by PDL provisions of CA law. PDL leave is part of FEHA and has the same coverage requirements. No length of service requirements.

Front 226

Pretext

Back 226

44 Pretext may be demonstrated by showing that "the proffered reason had no basis, in fact the proffered reason did NOT actually motivate the discharge, or the proffered reason was insufficient to motivate discharge." Pretext- something to conceal a true purpose or object

If an EE can provide evidence to state a prima facie case, the burden shifts to the Employer to articulate legitimate, non-discriminatory reasons for the employment decision.

If the employer is able to do this, THEN the burden shifts back to the EE to show that the Employers reasons are merely pretext MASKING an inappropriate discriminatory decision. EE demonstrates Employer's PRETEXT-

Front 227

Prima Facie

Back 227

44, 64, 89, 106
When successful establishing Prima Facie, burden of proof shifts
Prima Facie examples-
Discrimination- EE produces evidence of discrimination
Absence of Minor permits- lack of permits indicates guilt

Front 228

Privacy concern (workers comp)

Back 228

185 Form 300 reporting to DOSH and Division of Labor Statistics & Research Privacy Concern
If EE requests "privacy" enter "Privacy Case" in space reserved for name of EE
Privacy Concern cases are defined as an I&I to an intimate part of the body part, reproductive system, resulting from sexual assault, mental illness, HIV, hepatitis, TB, needlestick injurities/ blood contamination,

Front 229

Privacy

Back 229

87 CA Laws cover broad area of privacy concerns;
1. Pre-screen and background checks
2. Testing; polygraph, medical, drug, intell.
3. Investigations & surveillance during employment for misconduct
4. Personal information; SS#, ehalt info
5. Lifestyle regulations

Front 230

Private Attorneys General Act PAGA

Back 230

28, 87, 95 PAGA is a litigation reform; it did not create any new substantive rights for EE but it provided new opportunities for them to bring lawsuits in CA courts based on a large number of substantive rights that already existed under CA law.

Protected activities and personal rights are protected by FEHA and violations may now be brought directly to court through PAGA after certain standing & procedural requirements are fulfilled.

Before PAGA, many of the rights found in CA Labor Code provisions have test indicating that only the Labor Commissioner or some other govt agency may bring lawsuits to enforce them.

PAGA's primary purpose is to let EEs bring their own direct legal actions to enforce such rights. The new kind of lawsuit is referred to a PAGA Claim

Front 231

Probable cause

Back 231

43 Complaints filed with FEHA are investigated and the DFEH will render a decision as to whether there is probable cause

Front 232

Procedurally unconscionable

Back 232

50 Part of the mandate arbitration standards
1. procedurally unconscionable- an arbitration agreement required as a condition of employment is automatically considered procedurally
2. substantively unconscionable- the agreement must be fair for both parties

Front 233

Professional exemption

Back 233

5 Requires a license or certification by the state of CA. Often in law, medicine, dentistry, accounting, teaching, engineering, Requires advanced learning, exercise discretion & independent judgement. Earns salary 2x minimum wage / 40 hrs

Front 234

Prohibited wage deductions

Back 234

23 Barnhill vs Robert Saunders & City of Oakland vs Hassey
Employer can not reduce EE's paycheck by the amount of unpaid loan or repay for training costs.

Employer not entitled to reduce OR withhold EE's final paycheck even though an agreement in place.

Front 235

Proposition 65

Back 235

223 Proposition 65 requires compliance in the workplace. The standard imposes additional obligations on manufacturers who create MSDS and broader requirements for S&H training

Front 236

Public policy

Back 236

83 CA Law requires that the public policy be "substantial or fundamental" policy that is reflected in some "well established" formal affirmative expression of law, such as constitutional or statutory source.

General notions of justice or fair play do not constitute public policy.Advocacy groups "often attempt to educate the general public as well as public policy makers about the nature of problems, what legislation is needed to address problems, and the funding required to provide services or conduct research.

Front 237

Record keeping

Back 237

19 Keep accurate time records detailing
Exempt hourly EEs
start/ stop work period
meal period
split shift
total hours worked per day
applicable rates of pay
total hours worked in pay period
total wages paid each payroll period
name of EEs
addresses
occupations/ job titles
SS#s
DOB for minors

Front 238

Record retention

Back 238

130
Pre-hire 2yrs
New hire 3yrs
Payroll 6yrs
Training records 1yr
Benefits 6yrs/ Indefinitely

Front 239

Reeves v Hanlon

Back 239

78 Court clarified "if either defecting EE or competitor uses unfair or deceptive means to effectuate new employment/ guilty of concomitant, the injured has cause of action"
Wrongful conduct consisted of an intentional campaign to disrupt the business of the former employer including
1. resigning w/out notice
2. misappropriating trade secrets
3. destroying computer files

Front 240

Registered Domestic Partners

Back 240

30, 43 Same sex couple & opposite sex couples in which at least one is over 62yrs can be enlisted on the appropriate registry w/ the Secretary of State as registered domestic partners and get same rights as spouses.

Front 241

Reimbursement of expenses

Back 241

10 Reimbursement of expenses is not included when calculating regular rate of pay

Front 242

Religious accommodation

Back 242

47 FEHA includes religious creed in list of protected categories so reasonable accommodation to support beliefs and observances is expected unless it creates undue hardship.

Job modification to change schedules to permit observances, certain dress/ grooming, pray at work in private area

Front 243

Relocation CA WARN definition

Back 243

116 Worker Adjustment & Retraining Notification
Relocation Def: Moving all or substantially all industrial or commercial business operations over 100 miles from original location

Front 244

Repetitive motion injury RMI

Back 244

222 If RMI triggers CA ergonomic standard as a result of performing an identical task that is work related w/in last 12 months, Employer must write a program covering the following:
1.Work Site Evaluation
2. Control of exposures that have cause RMI
3. Training employees; Topics cover Employer's ergo program, exposures associated with RMI, Symptoms and consequences, Importance of reporting symptoms, Methods to minimize RMI

Front 245

Report of independent contractor

Back 245

67 DE 542 if
1. Contract exceeds $600
2. Company files IRS 1099 Misc
3. IC is a sole proprietor

Front 246

Reporting to work/ Show up pay

Back 246

12 Per Wage Order 1-16 if EE shows up for work at starting time and Copany doesn't have work for EE, Company must pay the EE 1/2 of the EE's regularly scheduled hours- no less than 2hrs, no more than 4hrs. EE entitled to pay even if Employer tells him to report again later the same day.

If Employer requires EE to report a 2nd time/ same day, EE must get regular work hour pay + pay due for earlier reporting

Exceptions:
1. Act of God
2. Utility failure
3. EE on standby so 2hr pay not requuired
4. Local or State govt order to cease operations

Front 247

Respondeat superior

Back 247

90 Legal term meaning an organization can be held liable for damages caused by it's employees. Employers have a legitimate interest for introducing upon EE privacy based on Employer's right to protect itself and the third parties that might be harmed by EE

Front 248

Rest periods

Back 248

15 All non-exempt EEs entitle to 10 minute break every 4 hours. Rest period must be counted as work and not deducted from wages. If Employer fails to provide rest period, Company must pay 1hr pay at regular rate for each work day that the rest period isn't provided

Front 249

Retaliation

Back 249

45, 106

Front 250

Right of control

Back 250

68 Whether exercised or not, is the most important factor in determining the relationship EE vs UI. The right to discharge a work at will and without cause is strong evidence of the right of direction and control.

Front 251

Right to earn a living

Back 251

72 California Business & Professions Code 16600
Section 16600 strongly favors the mobility of labor ie the right to earn a living

Front 252

Right to sue letter

Back 252

43 When an EE believes they have experienced employment discrimination, they may file a complaint with the DFEHA w/in 1 yr of event and obtain a "right to sue" letter that allows them to proceed to court. (They also can choose to have the DFEHA investigate before going to court)

Front 253

Rounding time

Back 253

11 Rounding to the nearest 5, 10 (one tenth of hour), or 15 (quarter hour)

Front 254

Safe Drinking & Toxic Enforcement Initiative

Back 254

237 aka Prop 65 prohibits businesses from discharging toxic chemicals into sources of drinking water and requires them to give a clear warning with regard to chemicals listed by the state as causing cancer or reproductive harm

Front 255

Safety & health training

Back 255

231 One of the most important elements of IIPP, allows EEs to learn their jobs properly, brings new ideas into the workplace, reinforces existing practices, critical to implement safety procedures. Temp and contractors who will be performing work should have training before starting assignment.

Outside safety training consultants, WC insurance providers, brokers and certain equipment vendor reps may also provide assistance.

Front 256

SB 541

Back 256

94 SB541 and AB211 are new medical privacy laws which regulate medical providers and their EEs access to patient info. Holds EEs liable for unlawful access or use of med info with fines up to $250,000, potential civil action and licensing board sanctions.

Front 257

School activities leave

Back 257

172 School Activities Leave 25+EEs provides up to 40hrs PTO not exceeding 8 hrs per month to visit their child's school or day care. EEs are to provide reasonable notice of the planned absence and are to use accrued vacation , personal leave etc

Front 258

Section 1088.8

Back 258

67 Per Unemployment Insurance Code Section 1088.8 the EE is entering into a contract with the IC for payments that in the aggregate equal or exceed $600 in any year.

Front 259

Section 16600

Back 259

73 Strongly favors the mobility of labor "right to earn a living"
"every contract which restrains anyone from engaging in a lawful profession/ business of any kind is void"

Non-compete, Non-solicit, Anti-raiding, Non-disclosure are unenforceable under 16600

Exceptions- 3 Statutory & 1 Common Law
1. Sale of business goodwill exception
2. Dissolution of partnership exception
3. Dissolution of LLC exception
4. Common law exception to protect trade secrets

Front 260

Section 17200

Back 260

73 Unfair Competition - Defines unfair competition as "any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising"

Front 261

Section 515.5

Back 261

7 Division of Labor Statistics & Research is required by 515.5 to adjust the hourly base rate of pay for computer software EEs

Front 262

Serious health conditions CFRA

Back 262

155 2009 FMLA defines: a period of incapacity of more than three consecutive full calendar days and any subsequent treatment or period of incapacity relating to the same condition that also involves
1. treatment 2 or more times w/in 30 days of the first day of incapacity
2. treatment by a health care provider on at least one occasion that results in a regimen of continuing treatment under supervision of a HC provider. Treatment must occur within 7 days of first day of incapacity

Front 263

Service provider

Back 263

67 Service provider is the IC

Front 264

Service recipient

Back 264

68 Service recipient is the business that is contracting the service from the IC

Front 265

Sexual assault victim time off

Back 265

170 CA Employer regardless of size must grant unpaid time off for EE or EE's family to attend judicial proceedings related to the crime. EE must provide advance notice and copy of the notice of each scheduled proceeding. Must keep records confidential, informing on a need to know basis.

Front 266

Sexual harassment training

Back 266

47 When the DHEH investigates any harassment charge, they will require the Employer to show the sexual harassment training provided by the employer to it's supervisors, particularly if the Company has 50+EEs which requires AB1825

Front 267

Sheepherders

Back 267

8 Minimum wage $1200/ month as well as monthly meals and lodging benefits required to be paid

Front 268

Sick leave- San Francisco

Back 268

177 San Francisco requires all companies provide sick leave to their employees but CA Law does not require it

Front 269

Six Flags v. WCAB

Back 269

196

Front 270

Social security number

Back 270

21, 67, 243
As of Jan 2008 Only the last 4 digits of an EE's social security number or EIN may be shown on statement

Front 271

Split shift pay

Back 271

11 Occurs when a Company assigns an EE 2 distinct work times in 1 day. When there is an unpaid interruption of 1+hrs in workday, EE must be paid an additional 1hr of pay at minimum wage unless EE resides at the place of employment.

Split shift pay does NOT become part of the calculation of OT as it is not a pyment for time worked

Front 272

State Compensation Insurance Fund

Back 272

182 WC insurance is provided through either private insurers or by the State of Compensation Insurance Fund (SCIF) Premiums are calculated according to EE classification system and rates are assigned to each EE classification based on a system developed by the WC Insurance Rating Bureau WCIRB

Front 273

State contractors anti-discrimination requirements

Back 273

111 Company's that have CA state contracts must comply w/ legal requirements to continue contract including:

Government Code Section11135 Says no individual may unlawfully be denied full and equal benefits under any program operated by the state/ state agency.

Government Code Section 12990 Employer must submit an anti-discrimination program for approval/ certification and report compliance

Front 274

State Disability Income SDI

Back 274

175 Partial wage replacement program for workers experience short term wage loss for non-work related I&I or PDL. 7 day eligibility period, weekly benefits are 55% of earnings up to max amt.

For claims beginning on or after January 1, 2010, weekly benefits range from $50 to a maximum of $987. To qualify for the maximum weekly benefit amount ($987) an individual must earn at least $23,305.46 in a calendar quarter during the base period.

Front 275

Substance abuse treatment program

Back 275

93 Labor Code Section 1025 requires Employers 25+EE must accommodate EEs who wish to participate in substance abuse treatment unless accommodation provides hardship. EE right to use vacation time, no PTO, safeguard privacy, not subject to drug tests after treatment bc could be viewed retaliatory

Front 276

Substantively unconscionable

Back 276

50 Unconscionable means unscrupulous
Substantively unsconsionable is one of 2 conditions for the Armendariz mandatory arbitration standards. Means that if substantively unconscionable, than it is not fair to both parties and does NOT meet the mandatory arbitration standard

Front 277

Supervisor liability for discrimination

Back 277

45 CA Supreme Court has held that supervisors cannot be held individually liable under FEHA for discrimination based on commonly necessary personnel management actions; hiring/ firing/ promotion/ demotion/ performance eval etc

Front 278

Surveillance protection

Back 278

95 Organization can be charged w/ crime if making audio or video in bathrooms, locker, shower, lactation, rooms set aside to change clothes. Best practice to post & give notice of surveillance of non-private room and have an established business related necessity

Front 279

Sweat-free Code of Conduct

Back 279

112 Ensures that products and services not produced by sweatshop labor, forced labor, convict labor, indentured labor under penal sanction, abusive forms of child labor, exploitation of child labor

Contractors must declare under penalty of perjury they adhere to Sweatfree Code of Conduct per Dept Industrial Relations, Dept Justice,

Front 280

Tameny claims

Back 280

82 aka Wrongful termination- Referring to leading court decision

EEs bring a Tameny claim when they can show that they were terminated from employment in violation of some "duty implied in law on the part of the employer to conduct its affairs in compliance w/ public policy"

When EE is discharged for engaging in an activity protected under some identifiable public policy, EE might be able to sue Employer for wrongful discharge.

Front 281

TBG Ins. Services v Superior Court

Back 281

96 Court created a "recipe" for an electronic comm. policy and adopted a employer friendly view of electronic monitoring in the workplace.

Court ruled that EE shouldn't expect privacy on work owned computers where company had a clear e-policy notifying EEs of monitoring which EEs signed. Use of computers in workplace has constituted a "social norm'

Front 282

Termination CA WARN definition

Back 282

116 Closure of a facility that results in "cessation or substantial cessation of industrial or commercial operations"

Law not specific on 1. What qualifies as substantial cessation
2. Neither a time period or # of EEs
Potential RISKS regarding the definition of "termination"

Front 283

Tips restaurant

Back 283

6 Property of EE and not included as part of minimum wage

Front 284

Trade secrets definition

Back 284

75 A postemployment restriction that might be invalid under Section 16600 might be held enforceable if necessary to protect trade secrets.

Uniform Trade Secrets Act (UTSA) Trade Secret def: Information that drives independent economic value actual or potential that isn't generally known to the public AND the subject of effort to keep secret

Front 285

Training yr AB1825

Back 285

101 Company 50+EEs required to provide supervisors with 2hrs of AB1825 training every 2yrs. New supervisors must complete training within 1rst 6 months on the job.
Final regulations approved by FEHA clarify important features of compliance.

Training is portable and a new supervisor with training from a previous employer may be transferred to eliminate the requirement to provide training. Provide new super w/ Company anti-harassment policy and require new super to sign it within 6 months. Ensure retraining occurs no later than 2 yrs date of super's previous training. BEST practice to put new super through training regardless

Title VII- 15 EEs
FEHA- 1EE

Front 286

Transportation time

Back 286

14 When company provides mandatory transportation to EEs, EEs must be paid for travel time. Non-exempt may be paid a lower rate than usual pay.

Morillion v Royal Packing insisted EEs meet in designated location where company bus would transport EE to fields for the day's work.

Front 287

Travel time

Back 287

13 Travel time is compensable if EE is subject to the control of the organization- Travel required as part of the job must be compensated for

Front 288

UI base period

Back 288

65 Base Period Def: 12 months beginning some 15-17 months before claim filed. The most recent 3-5 months before the claim are omitted)
1. Earned a minimum of $1300 in highest quarter of base period
OR
2. Earned at least $900 in highest quarter & at least 1.25x the higher quarter

The maximum amount payable for regular UI claim:
26x claimants weekly benefit amount
OR
1/2 of the claimant's base-period wages

Claims begin the Sunday of the week the EE fiels the claim (vs date of becoming unemployed) Claim ends 52 weeks from claim beginning date.

Front 289

UI Code Section 1088.8

Back 289

68 Code recording requirements. It says the EE is "entering into a contact or contracts w/ the service provider (IC) for payments that in aggregate equial or exceed $600yr. Employer uses the DE542 form which needs to be completed w/in 20 days of making $600.

EDD may assess a penalty of $24-$490 for failure to report

Front 290

UI Code Section 675

Back 290

68 Definition of a UI Employer; "employing unit which for some portion of the day has wihtin the current calendar year/ preceding calendar year at least 1 EE paid a minimum of $100.

Front 291

Unfair competition

Back 291

58, 76 Business & Professions Code Section 17200 Unfair Competition "Any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.."

Misappropriation of trade secrets, violation of enforceable post-employment restrictions, conduct considered "independent wrongful act"

Front 292

Uniform fees

Back 292

23 If organization requires EE to wear a uniform to the place of employment, the organization must pay the cost of the uniform as well as the cost to maintain it

Front 293

Uniform Trade Secrets Act

Back 293

78 UTSA Civil Code 3426 protection applies to an organization's trade secrets regardless of whether there is some other nondisclosure, confidentiality, non-compete agreement. Provides powerful legal options to remedy misappropriations.

Misappropriation- acquisition/use of trade secret by improper means or disclosure. If misappropriated, can take legal actions with UTSA

Reverse engineering/ Independent derviation not considered improper means

Front 294

Uninsured Employers Benefits Trust Fund

Back 294

184 A unit of the Division of Workers Comp that may pay benefits to injured workers of an employer w/out insurance. UEBTF will seek reimbursement from uninsured employers including liens against the property

Front 295

Vacation benefits

Back 295

177 Vacation benefits can not be taken away, they are akin to earned wages and must be rolled over/ paid out upon termination.
Conley v PG&E allows Exempt EE to be docked 1/2 day Vacation/ PTO w/out impacting exemption status.

Suggested PTO cap of 1.75 rate but not enforced by DLSE

Front 296

Volunteer Civil Service Leave

Back 296

173 Fed & State law supports EEs to pursue various statutes exercising their personal rights to do so. Employers who take adverse action against EE; discharge, refuse to hire, discriminate because of membership in military considered retaliatory.

Front 297

Voting time off

Back 297

171 CA Elections Code provides all CA employers provide PTO to EEs up to 2hrs to vote in statewide elections- either beginning or end of shift. Must announce right 10days before election to EE. EE must notify Employer 2 days before election to schedule time

Front 298

Wage Orders

Back 298

2 17 Wage Orders govern wages, hours, and working conditions for various occupations, trades and industries maintained by IWC

Front 299

Wage statements

Back 299

21 Wage statement provided to all EEs at time of payment, recorded in ink, properly dated and show month, day & year. Employer keep copy of statement on file minimum 3yrs
Statement Includes:
1.Name Employer, address, legal entity
2. Name EE, SS#
3. Applicable hourly rate, corresponding hrs worked at each hrly rate
4. Gross wage earned
5. Total hrs worked by nonexempt EEs or base salary for exempt EE
6. # piece-rate units earned and piece rate
7. Any and all deductions
8. Net wages earned
9. Payroll period dates

Front 300

Wages defined

Back 300

6 "All amounts for labor performed by EEs of every description whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, method of calculation"

Front 301

Whistleblower protection

Back 301

122, 228 Protected from retaliation by their Employer for reporting to a Govt or Law Enforcement agency any information that they reasonably believe discloses a violation or noncompliance with Fed/State law or regulation OR unsafe working condition

Poster must be prominently displayed larger than size 14 font, include list of EE rights & responsbilities including telephone # for whistleblower hotline maintained by Office of the CA Attorney General

Front 302

CA Wireless Telephone Automobile Safety Act

Back 302

232 2006 Prohibits the use of cell phones in moving vehicles unless the driver is using a hands-free device.[1] In addition, drivers under the age of 18 are prohibited from using cellular phones while operating a motor vehicle, even if equipped with a hands-free device.[2]

Front 303

Work injury definition

Back 303

181 Worker needs to show that his/her employment causes the injury by causing them to w present at the place where the accident occurred. It also includes acts that are incidental to work or involve approaching/ leaving work.

Front 304

WC- "Privacy Case"

Back 304

185 Privacy Concern cases are defined as an I&I to an intimate body party, reproductive, sxual assault, mental illness, HIV, hepatitis, TB, needlestick, pathogens- Form 300 Log, use "Privacy Case"

Front 305

WC- apportionment

Back 305

197 Apportionment- distribution or allotment in proper shares/ liability
Physician reports regarding permanent disability must address apportionment & causation of injury. Physician makes a determination of the direct cause of the injury and what portion of that causation is directly related to or arises out of the course of employment vs other factors prior or subsequent the date of injury

Front 306

WC- right to medical information

Back 306

203 Employer's right to EE medical information is limited to the diagnosis of the mental or physical condition for which the WC is claimed and the treatment provided for the condition. And, necessary information for Employer to modify work if appropriate.

Front 307

WC- exclusive remedy

Back 307

184 EE remedies not exclusive to WC system for all workplace injuries; civil remedies may be pursued for injuries or dealth caused by
1. willful physical assault by Employer
2. defective product manufactured by Employer
3. Aggravation of injury caused by fraudulently concealing the existence of an injury or circumstances involved- In that case Employer has the burden of proof differentiating damage of original injury and subsequent aggravation
4. Injuries occurring outside the scope of employment, resulting from harassment or discrimination

Front 308

WC- failure to maintain insurance

Back 308

183
1. Employer can be placed under a "Stop Order" that prohibits use of EE labor and can be fined up to 10 days wages for EE's lost time due to stop order.
2. If EE injured during this time, Employer faces liability for benefits as if coverage had been in place
3. If EE files claim during this period, DIR may prohibit the Employer from operating until coverage is secured and levy a fine of up to $10,000
4. Employer presumed negligent and EE may sue the Employer for damages.
5. Uninsured Employers Benefits Trust Fund UEBTF may pay benefits to EE if Employer w/out insurance

Front 309

WC- fraud

Back 309

201 WC by Employers Includes
1. Willful failure to provide WC or pay for coverage which is a LC misdemeanor
2. Fraudulent activity which includes making false or fraudulent statements for the purpose of denying comp, underreporting payroll, misclassifying EE's job description, misrep business ownership to evade proper business modifications, denying WC benefits.
MAX Fine has been increased to $150,000 or 2x amount of Fraud, the greater of the two

Claimant Fraud-
1. Filing false claim for I&I that "happened at workplace"
2. Working while collecting disability beneifts
3. Denying the ability to perform functions when they can be done
4. Providing false/ incomplete statements about prior injuries

Front 310

WC- posters & notices

Back 310

184 Must be in plain site and contain on the poster the Employer Representative for WC issues, emergency #s, and claims admin.
Get posters from WC insurance carrier.

Employer must provide WC notice describing the rights and obligations of Employers and EEs to each new EE at the time of hire and at the end of the first pay period.

Employers who offer Health Care Organizations (HCO) for WC injuries must also provide a personal physician designation form which allows EE to designate in advance a personal physician to provide medical care for workplace injuries.

Front 311

WC- public employees

Back 311

180 Public EEs granted Leave of Absence with salary continuation vs temp disability payments for disability but not for more than 1yr or until retired on permanent disabiilty pension payments.

IE; Law enforcement sheriffs/DA/ detectives/ police etc & Fire fighters

Front 312

WC- reinstatement

Back 312

198 WC does not require reinstatement but other laws do. IE if EE discriminated against for filing WC claim, LCS 132 violation may occurs which may increase WC award by 50% up to $10,000 + fees

Must ask: Did the Employers action cause detriment to the EE?
Intent to discriminate not required.

Work I&I may qualify as a "serious health condition" as defined by FMLA/ CFRA and qualify so that the EE's WC may run concurrently with FMLA/ CRFA 12 week job reinstatement period provided the Employer has properly notified the EE and designated the time off accordingly.

Gelson's Market v WC AB- Employer not expected to keep position open indefinitely for EE on WC

Front 313

Workers Compensation Appeals Board WCAB

Back 313

183 WCAB reviews the Division of Workers Comp (DWC) administrative decisions and regulates the adjudication process by adopting rules of practice and procedure. It is separate & apart from the civil court system.

Front 314

Worker's Comp Insurance Rating Bureau

Back 314

182 WC Insurance rates are assigned to each EE classification based upon a system developed by the WCIRB. The insurance is provided by either the State Compensation Insurance Fund (SCIF) or private insurers.

Front 315

Workplace violence

Back 315

234 3 Types of Workplace Violence
Type I: Injury or death resulting from robbery or crime
Type II: Injury or death resulting from being a service provider caught in the line of duty IE police officer
Type III: Injury or death resulting from violent co-worker or someone associated to co-worker

Front 316

Workweek definition

Back 316

17 Labor commission Def: Sunday 12:01am through Saturday midnight

Alternate workweek may not require more than 10hrs/day and 40hrs/ week
OT for 10-12 hrs = 1.5x
OT for 12+hrs = 2x

Front 317

Wrongful termination

Back 317

81 A generally defined umbrella term that often means that the individual has been fired or laid off for illegal reasons. 3 basic forms of wrongful termination
1. violation of an express or implied contract
2. violation of an implied duty of good faith and fair dealing
3. violation of public policy

Constructive discharge is another term related to wrongful termination

Front 318

Yanowitz v L'Oreal

Back 318

105 An EE is not required to complain about a possible discriminatory practice in order to be protected from retaliation. Yanowitz was a successful, longterm EE with a great employment record who refused to fire a report because the EE wasn't "hot" enough. "Hot" considered discriminatory, the EE who refused to fire another based on that criteria was arguably opposing employment practices prohibited by FEHA and thus could state a retaliation claim even though Yanowitz never complained about it.

Front 319

Zone of danger for minors

Back 319

64 A list of prohibited occupations for minors and other hazards of danger that constitute a zone of danger determined by the Dept of Industrial Relations

Front 320

Salaried employee

Back 320

2x minimum wage and may not be reduced for poor performance.

Front 321

Alternate Workweek Adoption Procedure

Back 321

Set by IWC
1. Present written proposal designating reocurring work days & hrs
2. Can be a standard proposed scheduled or a menu of schedules
3. Schedule voted by secret ballot, 2/3 of votes by affected EEs of the work unit
4. Prior to secret ballot must have a meeting w/ affected EEs 14days before election
5. Present a written disclosure detailing the information at the meeting
6. If 5%+ speak alt lang. must provide translations
7. Must mail a copy to those who didn't attend the meeting
8. Election held at work site during regular hours
9. 30 days to report tally of vote, size of unit, nature of the biz of the new WW to DLSE
10. 30 days to adopt new WW

Front 322

CA OSHA penalties for non-compliance of Safety Orders

Back 322

General Violation- Up to $7000/violation
Serious Violation- Up to $25,000/violation
Willful/ repeat Violation- Up to $70,000/violation
Failure to abate- Up to $15,000/day
Failure to report serious injury or illness or death of EE Section 342 of Title 8 min. penalty $5000

Front 323

Alternative Workweek Repeal Actions

Back 323

1. Meeting 14 days before secret ballot
2. 2/3 of the affected EEs must vote at secret ballot election
3. 1/3 of affected EEs must repeal petition
4. Election must be held w/in 30 days of petition to repeal.
5. Cannot vote again within 12 months of election
6. If WW is repealed, has 60 days to adopt and comply

Front 324

Labor Code 206.5

Back 324

20 EEs cannot be required to validate a statement of hours as a condition of getting paid when employer knows that the statement of hours is false, Reinforces breaks and meals.

Front 325

Labor Code pay period & pay schedule

Back 325

20 Labor Code requires to pay 2x a month on predesignated days. Wages earned 1-15th paid no later than 26th. Wages earned 16-EOM paid no later than 10th
Other pay periods must be paid no later than 7 days of payroll period

Front 326

Failure to pay wage violation penalty

Back 326

Initial violation $100 per EE
2nd + violation $200 per EE + 25% of amount unlawfully held

Front 327

Wage Statement Data

Back 327

21
1. Name, address of company
2. Name of EE & SS# last 4 digits
3. Applicable hourly rates/ corresponding number of hours worked at each hourly rate
4. Gross wages
5. Total hours worked for nonexempt EE or base salary for exempt EE
6. Piece units if applicable
7. Any/all deductions
8. Net wages earned
9. Payroll period dates

Front 328

Wage statement violations penalty

Back 328

22 First violation $250 per EE
2nd+ violation $1000 per EE and right to engage PAGA
- Company found guilty of intentionally violating charged as misdemeanor fined up to $1000 and/ or 1yr jail
- EE suffering injury from result of Co. intentionally failing to comply can receive $50/ pay period + $100/ pay period subsequent + attorney's fees. Penalty not to exceed $4000

Front 329

Organization fails to make payment to benefits fund on behalf of EE violation

Back 329

23 Fine of $500-$1000 and any officer, fiduciary can be punished with up to 5yrs jail

Front 330

Exempt reason for absence; jury duty, military leave, furlough, discipline suspension

Back 330

Reduction in Leave Time: Only if no work is performed for ENTIRE week

Deduction from Salary: Only if no work performed for entire week & Employee exhausted other available leave

Front 331

When you can deduct from an Exempt Salary

Back 331

24 Vacation & Illness: Only if absence is full day & PTO exhausted

Military, Jury: Only if no work for a week & PTO exhausted

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What are the 7 units Division of Labor Standards Enforcement DLSE aka Labor Commission's Office

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1. Wage Claim Adjudication (enforce labor code 96 & 98)
2. Bureau of Field Enforcement BOFE
3. Retaliation Works Unit
4. Public Works Unit (public works construction wage rates)
5. Economic & Employment Enforcement Coalition EEEC- State/Fed collaboration targeting underground businesses
6. Licensing & Registration; farm, talent agents, supervisors of minors
7. Legal- both trial and appellate

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Difference between trial and appellate?

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Three tiers of court; Trial, Appellate, Supreme Court
Trial court is used to determine the facts
Appellate court restricted to examining whether the court below made the correct legal determinations, rather than hearing direct evidence

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Underground Economy targets

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EEEC watches garment manuf, janitorial, agriculture, car wash, construction, race track, restaurant

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CA WARN Requirements

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115 Commercial or Industrial facility w/ 75 PERSONS employed in the preceeding 12 months

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CA WARM Trigger Events

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1. Mass Layoff- 50+ EMPLOYEES vs persons (EE PT/FT who've been employed for 30days or longer during last 12 months) temp or perm separated from a position due to lack of funds or lack of work (not reduction in hours)

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Common Labor Code Violations triggering PAGA

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28 Failure to:
1. provide wages upon discharge
2. provide itemized wage statements
3. pay overtime
4. maintain proper employment records
5. pay minimum wage
6. indemnify an employee for expenses during job

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FEHA

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Fair Employment & Housing Act
5+ employees FT or PT
Discrimination, Retaliation-Supers not liable
Harassment (Need only 1 employee)- Super is liable

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FEHA Anti-harassment applies to companies with how many employees?

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Need only 1 employee
Supervisor had liable

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FEHA protected Classes?

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2 A- Age & Ancestry
2 C- Creed & Color
G- Gender
3 M- Mental disability & Medical condition & Marital status
N- National origin
P-Physical disability
2 R- Race & Religion
2 S- Sex & Sexual orientation

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FEHA Awards

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1. hiring
2. back pay
3. promotion
4. reinstatement
5. cease & desist orders
6. damages for emotional distress
7. reasonable attorney's fees & costs
8. expert witness fees
9. administrative fines & court ordered punitive damages

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ICRAA Inhouse Investigations

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Special rules apply when Employer obtains public record info.
1. Provide copy of public record report within 7 days unless right waived
2. If Employer takes adverse action, must provide copy of report regardless
3. Inhouse investigations of EE wrong-doing withheld until investigation is complete. Then report must be presented.

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ICRAA Report Regulations

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1. Limits consumer report inquiry regarding public records to 7-10yrs Except if Govt mandated
2. Criminal convictions go back 7yrs and can't be reported if a full pardon has been granted
3. Public record information can't be included unless source verified w/in 30days before report issued
4. Outstanding judgements for conviction excluded

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Disability Branch of the EDD's 3 insurance plans

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1. State plan- covers most CA EEs who pay into fund through tax deduction in paycheck
2. Voluntary fund- Private plans Employer may substitute but must be approved by Director of EDD.
3. Elective coverage- Employer/self employed must obtain consent and approval of majority of EEs in wrting before submitting form application.

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Voluntary SDI Plan

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-Plan approved by Director EDD
-Coverage as good as State plan w/ at least one provision better
- Majority of EEs must approve
- Employer pays assessment to EDD based on wages as well as a security deposit to state treasurer to cover payments under the plan.
-Voluntary plans must be underwritten by insurance co. or self-insured

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Paid Family Leave

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An extension of SDI
For claims beginning on or after January 1, 2010, weekly benefits range from $50 to a maximum of $987. To qualify for the maximum weekly benefit amount ($987) an individual must earn at least $23,305.46 in a calendar quarter during the base period.

An individual’s weekly benefit amount is approximately 55 percent of his or her earnings up to the maximum weekly benefit amount. He or she may receive up to six (6) weeks of Paid Family Leave (PFL) benefits during a 12-month period. The daily benefit amount is calculated by dividing an individual’s weekly benefit amount by seven. The maximum benefit amount is calculated by multiplying an individual’s weekly benefit amount by six (6) or adding the total wages subject to SDI tax paid in an individual’s base period, whichever is less. Exceptions are as follows:

For employers and self-employed individuals who elect SDI coverage, the maximum benefit amount is six (6) times the weekly rate.

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Difference between SDI and PFL?

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SDI can last up to 52 weeks
PFL can last up to 6 weels

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State Disability Insurance conditions

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For claims beginning on or after January 1, 2010, weekly benefits range from $50 to a maximum of $987. To qualify for the maximum weekly benefit amount ($987) an individual must earn at least $23,305.46 in a calendar quarter during the base period.

The EDD, with Bank of America, will provide eligible individuals with an EDD Debit Card that is valid for three years from the date of issue. Once the card is received, all authorized benefit payments will then be deposited to the EDD Debit Card account. The same EDD Debit Card will be used to deliver both State Disability and Unemployment Insurance payments. A check payment may be received until the EDD Debit Card is issued. No action is required to receive the EDD Debit Card.

An individual’s weekly benefit amount is approximately 55 percent of his or her earnings up to the maximum weekly benefit amount. He or she may receive up to 52 weeks worth of Disability Insurance (DI) benefits. The daily benefit amount is calculated by dividing an individual’s weekly benefit amount by seven. The maximum benefit amount is calculated by multiplying an individual’s weekly benefit amount by 52 or adding the total wages subject to State Disability Insurance (SDI) tax paid in an individual’s base period, whichever is less. Exceptions are as follows:

For employers and self-employed individuals who elect SDI coverage, the maximum benefit amount is 39 times the weekly rate or the total wage credits in the base period, whichever is less. The minimum weekly benefit amount is $51 for Disability Insurance Elective Coverage participants.
For residents in a state-approved alcoholic recovery home or drug-free residential facility, the maximum payable period is 90 days. (However, disabilities related to or caused by acute or chronic alcoholism or drug abuse which are being medically treated do not have this limitation.)

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Database Protection Act 2003

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244 Requires any person/ company doing business in CA to disclose any security breaches of electronically stored information to each affected person whose information may have been breached of the security system.

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Personal Information Definition

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244 SS#, DL#, medical or credit card number & login/ password/ PIN

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Breach of Security system

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Unauthorized acquisition of computerized data that compromises the security, confidentiality and integrity of personal information maintained by a person, agency or business