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EMPLOYMENT LAW MIDTERM STUDY GUIDEDIR, IWC, DLSE, DOL, EEOC, (Cal)DFEH.West Coast Hotel v Parish.the Industrial Welfare Commission (IWC) was established to regulate wages, hours, and working conditions. Under the Dept of Industrial Relationsit is: A commission made up of five members appointed by the Governor with the consent of the Senate that is responsible for setting the wages, hours of work, and working conditions of California employees. The Industrial Welfare Commission is within the Department of Industrial Relations. The Industrial Welfare Commission is also known as the "IWC”.The IWC is not currently operativeThe Division of Labor Standards and Enforcement (DLSE) currently enforces wage laws.California's wage and hour lawsCalifornia has two main sources of laws that govern the wages, hours and working conditions of California workers. The first is the California Labor Code. The second are what are referred to as "California Wage Orders." In California, the Industrial Welfare Commission (IWC) is responsible for setting overtime wages, hours and working conditions for workers. Labor Code Sections 1173, 1182, 1182.11, 1182,12, 1182.13.California has 18 Wage Orders. 16 of the California Wage Orders relate to specific industries and occupations. There is one general minimum wage order that applies to all California employers and employees (excluding public employees and outside salespersons). And there is one order implementing the Eight-Hour-Day Restoration and Workplace Flexibility Act of 1999. Since 17 of the wage orders relate to industries and occupations, some folks prefer to say there are 17 wage orders.The IWC's wage orders are to be accorded the same dignity as statutes. They are ‘presumptively valid’ legislative regulations of the employment relationship [citation], regulations that must be given ‘independent effect’ separate and apart from any statutory enactments … .” Brinker v. Superior Court (2012) 53 Cal.4th 1004, 1026.Wage orders take precedence over the common law to the extent they conflict. Martinez v. Combs (2010) 49 Cal.4th 35, 64–65; Troester v. Starbucks Corp., 5 Cal. 5th 829, 839 (2018).The whole purpose of the California Labor Code and California Wage Orders are remedial in nature. Meaning, they are to give rights to workers that California employers have historically abused.In furtherance of that purpose, the California Supreme Court liberally construes the Labor Code and wage orders to favor the protection of employees.As the Supreme Court stated in the Augustus case: “When construing the Labor Code and wage orders, we adopt the construction that best gives effect to the purpose of the Legislature and the IWC. Time and again, we have characterized that purpose as the protection of employees—particularly given the extent of legislative concern about working conditions, wages, and hours when the Legislature enacted key portions of the Labor Code. In furtherance of that purpose, we liberally construe the Labor Code and wage orders to favor the protection of employees.” Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257, 262; Troester v. Starbucks Corp., 5 Cal. 5th 829, 839 (2018).Patchwork of laws:Federal, state, and local;Apply differently to Gov sector, private, and by number of employees, and union representationEmerging standards:What was acceptable 25 years ago, may not be todaySources of law, include, but are not limited to:US Constitution (DP/EP)State constitutionsStatutesExecutive ordersE.g. EO 11246 (1965, just after CRA of 64)Affirmative action requirements for companies that contract with the federal govProhibits discrimination in employment based on race, color, religion, sex, sexual orientation, gender identity, or national origin.Requires affirmative action to ensure that equal opportunity is provided in all aspects of employment.Is constantly updatedAdministrative agenciesCourt decisions (judicially authored common law)Re Constitutional ProtectionsMost heavily w/ government work, but not exclusivelyFreedom of speech;Freedom of religion4th amendmentEqual protection Due processStatutory ProtectionsTitle VII of the Civil Rights Act 1964Link on WebsiteTitle VII?is a provision of the Civil Rights Act of 1964 which prohibits discrimination in virtually every employment circumstance on the basis of race, color, religion, gender, pregnancy, or national origin. In general, Title VII applies to employers with 15 or more employees.The National Labor Relations Act of 1935The National Labor Relations Act of 1935 (also known as the Wagner Act) is a foundational statute of United States labor law which guarantees the right of private sector employees to organize into trade unions, engage in collective bargaining, and take collective action such as strikes. The act was signed into law by President Franklin D. Roosevelt.Equal Pay Act 1963Guarantees equal pay for men and womenNot working very wellAmericans With Disabilities ActFamily Medical Leave ActEmployee Retirement Income Security Act 1974The Employee Retirement Income Security Act of 1974 (ERISA) is a federal law that sets minimum standards for most voluntarily established retirement and health plans in private industry to provide protection for individuals in these plans.The protective laws under ERISA only apply to non-government, private-industry employers that offer employer-sponsored health insurance coverage and certain other benefit plans to employees. ERISA does not require employers to offer any plans for either health insurance or retirement. ERISA only sets rules (minimum standards) for certain types of benefits that an employer chooses to offer to its employees.Administrative AgenciesAn agency authorized to enforce a law, and or establish rulesE.g.: Occupational and Safety Health Act established to Occupational Safety and Health Administration to flesh out the details and enforce the rulesCourts/ Common LawCourt recognized claims shape employment conflict via Tort and ContractTorts in Emp LawNegligenceDefamationInvasion of privacyInfliction of emotional distressWrongful discharge (offends public policy)At Will employmentIn the absence of a contract stating otherwise, employment relationship can be severed at any time, and for any reason not otherwise prohibited by lawMakes wrongful termination cases difficultContrast with Unionized ProtectionsMost require Just Cause for termination or disciplineEmployer SizeMeasures in dollars and/or number of employeesE.g. EO 11246 applies to contract with the gov of $10k or moreADA and Title VII apply to those with 15 or more employeesCA min wage differ based on 25 or more employeesFED family and Medical Leave Act applies to all employers with 50 or more ee’s; Yet, more than 80% of employers have fewer than 20 employees; in these cases, look to state lawsType of BusinessCertain businesses receive special attentionThose regulated by Dept of Trans have drug testing requirementsDangerous Industries are inspected sua sponteSOL:We will talk about some specifics later with CA law, but:The SOL laws are complicated, and vary all over the place, from 90 days to three years, as a rough ruleAlso, Harassment can be alleged over a period of time, with only one incident falling within the SOLLilly Ledbetter Fair Pay ActEach paycheck that is low b/c of discrimination is a separate violation that starts the SOL clock anewBringing a CaseWhile OSHA can act Sua Sponte, employees must contact them for an inspection on individual cases; inspector’s decision is given great deferenceUnfair Labor PracticeFED law: if NLRB refuses to bring a claim, no caseCA: Allows for “Private Attorney General” Actions; means: each person affected can bring a case.Exhausting Plaintiff’s Administrative RemediesIn detail laterGenerally: a long process before plaintiff can file in court.ADRMediation:EEOC claimsArbitrationCollective Bargaining and Unions However, a tool increasingly being used by employers not subject to aboveBinding arbitration frequently bars litigation, but not alwaysRemediesInclude, potentially:Attorney’s feesCourt ordersBack payFront payReinstatement/hiringLiquidated damagesCompensatory damagesPunitive damagesinjunctionsEMPLOYMENT RELATIONSHIP: FED STANDARDSContingent and Non-standard work:As opposed to full-time, year round employmentLooser relationship; lasts only until a project or piece is done; Continued employment is therefore contingentTemp Staffing servicesIncreasing roleAlphabet (the google holding co) use equal numbers of employees and outsourced workersIssue: who is responsible for what regulations; i.e. who is the employer?Determining StatusMatters for many reasons, e.g.:Taxes, withholdingEmployer must pay share of SS and Medicare;Must withhold income taxesAlso: workers comp; unemployment insuranceThis all costs money; and Ind Contractors cost employers lessAlso, many fewer regulations apply to IC’s, further reducing the cost to employerFair Labor Standards Act regs only apply to EmployeesOnly employees are counted for firm sizeEmployee?If not an IC, then probably yesMajor difference for Employer:Typically, employer is only responsible for the torts of employees, not IC’sIC analysis: “Economic Realities Test/ Common Law Test”Major issue: extent of control: the more the employer has control, the more likely the agent is an employeeCharacterization by/understanding of the partiesCustom of locality re supervision of workDegree of skillWho provided the toolsWhat is the period of employment: open ended = more likely emplWhat is the basis of compensation; pay by hours = more likely employee; pay by job = more likely ICNo single element is dispositive Principal Still Liable for IC when:Inherently dangerous activityNon-delegable acts (think Corp boad/officersKnowing selection of incompetent ICAdvice to EmployersRequire the following of IC’sSupply your own tools;Hire your own assistantsPay flat fee, as opposed to hourly or salaryDo not pay benefits to IC’sMake sure IC’s can work for othersTemp WorkersIssue: do they qualify for bene’sUnder Common Law Test:Employer not required to give bene’s, but if you do, all those who meet CLT must be paid bene’sMicrosoft paid $97 million to settleNow, they hire IC’s, and limit temps to one year K’sStudents and InternsFED: Nat’l Labor Rel’s Board currently says grad students are employees and must be treated as suchInterns: Free labor, or needed training?DOL and Courts are unsettledTo be safe:University should oversee the internship and provide creditInternship should provide general skillsBusiness should not be dependent on work of internClose supervisionBrief, fixed durationNot a trial period to hiring (reality….)VolunteersNo set rule:If remuneration (or reasonable expectation of) is significant, then notIf: inconsequential incidents of an otherwise gratuitous relationship, then yesPartners/Officers/Board MembersTypically not employeesHowever, title is not determinative of statusEEOC distinguishes partner as:Can the org fire the individual in normal courseAmount of control (less control, more likely partnerSupervision, extent ofDoes individual report to someone higherCan individual influence organizationIntent/understanding of partiesDoes individual share in profit/losses/liabilities Immigration StatusFED police: Undocumented have same rights to pursue legal claim; BUTMay have limited remediesUSSC: it would contradict immigration policy to award back pay; BUTIt would be unjust to allow employers to avoid unpaid wages; they must pay them.THREE: DISCRIMINATION OVERVIEWDefined: “The limitation or denial of employment opportunity based on or related to the protected class characteristics of a person.”Encompasses both:Actual prejudice, andThe effects of biasPervasive but hard to proveLook to: outcome data; but not good for individuals:Markedly different employment outcomes, for:Employment/unemployment rates;Groups concentrated in lower-level jobsPay disparities across/between groups; races, gender, national origin, disabilitiesIn any given case, arguing cause by these measures is impossible; they show existence in general, not in specificsAlso: Numbers of claims in Admin Agencies and CourtsFor the last decade, year in year out average is 93K EEOC claims for discriminationFed Court cases: aprox 20K/ yearMajority of cases find no discriminationAnd: Field Studies, Surveys show pervasive discrimination:ex:Responding to entry level job openings, researchers sent identical resumes with different names:White sounding (Kristen, Laurie) v. Black sounding (Lakisha, Tamika)White named applicants received 50% more call-backsSimilar results when applicants revealed a disabilityFED Laws to Combat:Title VII CRA of 1964Equal Pay ActAge Discrimination in Employment ActPregnancy Discrimination ActAmericans With Disabilities ActProtected ClassesConcept of immutabilityFed list:Race, color: Title VII CRASex: Title VII, CRA, Equal Pay ActNational Origin: Title VII, Immigration Reform and Control ActCitizenship – as to citizens and Legal AliensAge 40 and Older: Age Discrimination ActQualified Individual With a Disability: ADAPregnancy, Childbirth, related conditions: Military ServiceGenetic Information: Genetic Information Nondiscrimination Act)4Types of DiscriminationDisparate treatmentDiscriminatory intentIncludes Harassment – victimized based on protected class statusDisparate ImpactFacially neutral rule; impacts protected classDiscriminatory effect (height requirement and women)Against: Bona Fide Occupational Qualification (BFOQ)Failure to reasonably accommodateADA requires reasonable accommodation in two scenariosFor qualified disabled people who need such accommodations; andFor religious beliefsUnless: undue hardshipRetaliationActions taken against those who stand up for their rights or the rights of othersRECRUITMENTTwo sides of:Identifying candidatesAttracting candidates; i.e. publicizing the openingDiscrimination issues, andImmigration, Visa status/complianceAffirmative action plansBreach of contractFraudMethodsWant ads, agencies, word of mouthBest to use all; restricting methods exposes employer to liabilityProducing want adsTitle VII CRA ’64: ContentIt is unlawful to publish any notice related to employment indicating a preference, limitation, or discrimination based on race, color, religion, sex, national originNeutral wording is the key:Problematic wording:Waitress; Recent College GradBalanced against: reasonable suggestion to potentially interested groupsWhere postedIf circulation is targeting a group (a foreign language paper), employer ought to publish in other places as wellAffirmative ActionEncouraging women and minorities to apply does not violate neutrality/ discrimination;Is seen as addressing systemic problems that create imbalancePosting is not requiredBut, strongly advisedAgenciesAgencies are expressly prohibited by law from engaging in discriminationThey are not protected by claiming the employer requested itEmployers are banned from extracting protected class information from agenciesEEOC cases: Code wordsFLOOR 40: persons over 40TALK TO ADAM = male applicants preferredWord of Mouth/ NepotismPreferring/ Hiring Family MembersBanned in most government employmentMerit based is goalWord of mouth leads to Nepotism and DISPARATE IMPACT discriminationFed Ap Ct: Nepotism is not per se violative of Title VII….Nepotism and (word of mouth) hiring may discriminate as effectively as any intentionally discriminatory policyCould be seen as intentional as wellDay LaborersAll work place laws still applyEmployer is responsible for documentsTowns try to restrict, but constitutional limitations applyFree speech, Equal ProtectionProving Discrimination in RecruitmentStatistical Comparison of the applicant pool of a specific employer to the group of persons in the labor market who might have been applicants if:They had known of the opening; orBelieved their application would be treated fairlyNAACP v North Hudson Fire (Disparate Impact Case)Resident’s Only List, to take the exam – had to live in the areaCould move laterMust Show (Prima Facie Case)A (seemingly) neutral practice has the effect of limiting employment opportunities of a protected class, of which plaintiff is a memberDifference is too big to be chance? must then show: Job related business necessityPlaintiff can then show: feasible alternative with less discriminatory impact that employer did not/will not adoptPlaintiff proved PF; proved virtualy no probability it was chanceBusiness Necessity DefenseFaster response time, b/c more familiar with areaCourt: but, they don’t have to stay in the area after hiringThen, language (Spanish), and local prideCourt: Less discriminatory ways to achieve CA EMPLOYMENT LAW LECTURE ONE[CA Labor Code; CA Dept Of Industrial Relations; ]Industrial Welfare Commission Establishes Orders per grant of power via of Cal Labor CodeDept of Industrial RelationsIndustrial Welfare CommissionMinimum Wage, CA as of Jan 1, 2020: $13 26+ empl/$12 25-2021: 14/132022: 15/14Each county can require more: e.g. Palo Alto requires $15.40/hrCupertino: $15.35CA employers must also comply with Federal Minimum Wage LawsFederal: FLSA (Fair Labor Standards Act) $7.25; for tipped employees is $2.13/hrHowever: CA’s min wage will always be higher; andCA: cannot pay tipped employees below the state min wage: Labor Code Section 351TipsCA law: All gratuities or tips are the sole property of the employee;Employers cannot deduct from them, including credit card processing feesTip pooling:CA law permits, and employer can require itIs:Collecting all or part into single pool, distributed based on predetermined set of factorsMay include employees who directly and indirectly serve customersOwners, managers, and supervisors may not participate in tip pools. TraineesCan pay trainees only 85% of min wage for first 160 hoursMust have no previous related experienceApprentices IWC is authorized to set sub min wage rate for Apprentices per Cal Labor Code §1192Learners/Student Learners/Student Workers:Non-trainee learners must be paid min wageWork week:Any seven consecutive 24 hour periods, that begin with the same calendar day each week. CA Labor Code § 500(b)Meals and BreaksMust provide a meal period of 30 minutes when emp has worked more than 5 consecutive hours: CA dept of Industrial Relations: Meal Periods: CA Labor Code Section 512Unless emp is relieved of all duties, and has the option to leave the premises, meal period must be counted as hours worked, paid at regular rateOn-Duty meal period ExceptionAllowed when nature of work prevents employee from being relieved of all duty, ANDAgreed to in writing between Eor and Eee Cal Lab Code § 512RESTNet 10 minutes rest period for every four hours worked, paidCA Dept Of Industrial Relations: Rest PeriodsRest period counts as time worked; must be paidCA EMPLOYMENT LAW LECTURE TWOExempt and Non-Exempt Employees: Exemption in General:Best is to be salary, non-exempt; most of you will be salary, non-exempt. Per CA Labor Code §515 An exempt employee is someone whose job is not subject to one or more sets of wage and hour laws. In most cases, there are three simple requirements to determine whether a worker is an exempt employee under California law: Minimum Salary. The employee must be paid a salary that is at least twice the state minimum wage for full-time employment. White Collar Duties. The employee’s primary duties must consist of administrative, executive, or professional tasks. Independent Judgment. The employee’s job duties must involve the use of discretion and independent judgmentWaiting Time/Standby TimeCA law requires that waiting time count as hours worked, if:Employees are unable to use the time for their own purposesBut, the wage rate can be lower than for actual working timeOn Call time;Paid only if employees are required to be on work premisesRate can be lessTravel TimeMin wage laws require that employees are paid for travel time; Includes out of town travel, one day, or overnight;But; not paid for personal time while traveling, including:Sleep timeMealsSight seeingBUT: employee only has to be paid from the time she arrives at the “travel center”, assuming travel center is about the same distance from home to work placeAlso: time from central reporting station to work site must be paidMay pay less for travel time.Meeting, Lecture and training time:Must be paid time, unless all four below are met:Attendance occurs outside reg work hoursAttendance is voluntaryThe M,L,T, is NOT directly related to job, andNo productive work is performed at the MLTShow-up/ Reporting TimeMust pay reg rate for half day, min two hoursEmployees who show-up but are not permitted to work; orThose who work less than half the scheduled shiftUnless:Threat to employees or propertyPolice actionPublic utilities shut-downAct of godSpecific ExemptionsExecutive exemption:Performs management dutiesDirects at least two underlings Has authority to hire and fireAdministrative ExemptionNon-manual work related to managementPerforms the administrative work of:Educational establishmentDirectly assisting an proprietor Only under general supervisionProfessional ExemptionLicensed/certifiedLawMedicineDentistryArchitectureEngineeringAccountingTeachingOR:Performing tasks that requires specialized intellectual study – more than general academia; orWork is original and creative as artistic endeavorOutside Sales ExemptionApplies to:18 y/o +More than half time is away from employer’s place of businessComputer Employee ExemptionApplies if:If creative; orDoing that which is highly skilledAlso ExemptFamily members of the employerThose in national service programs: e.g. AmeriCorps CA LEAVE LAWSBereavement LeaveTaken upon death of a loved oneCA law does not require employers to provide Bereavement LeaveHoliday Leave (not vacation leave)CA State Holidays1.1MLK Day: 3d Monday in JanLincoln Day 2.12Washington Day 3d Monday in FebCesar Chavez DayGood Friday (floating)Memorial Day7.4Labor Day 1st Monday in SepAdmission Day 9.9Columbus Day 2nd Monday in OctVeterans Day 11.11Thanksgiving Day 4th Thurs in NovChristmas Day 12.25Sundays go to Monday; Saturdays to FridayPrivate EmployersCA law does not require private employers to provide paid or undpaid holiday leaveA private employer can require employees to work holidaysNo automatic overtime for holidaysPublic EmployersState employees get:1.1; MLK Day; Washington Day; Cesar Chavez Day; Memorial Day; 7.4; Labor Day; Veterans Day; Thanksgiving Day and Day after; ChristmasIf worked: straight time pay + 8 hours holiday creditJury Duty LeaveCA does not require that employee be paid for Jury Duty Leave; though, employee can use PTO over jury timeMay not penalize or discharge employee for jury leave; notice is requiredSick LeaveCA law requires paid sick leave; several overlapping laws.Sick Leave May also qualify under:State Disability InsurancePaid Family Leave ProgramsUnpaid throughCA Family Rights ActFamily and Medical Leave ActEligible Employees: i.e. CA paid sick leave law applies to:All employees, after 30 days employment, except:Those whose sick leave is covered by a collective bargaining agreementEmployees who provide in-home support services – (overlap of Fed law and CA law)Flight crews; they are covered by Fed law, but they must be offered at least the minimum CA timeCovered Employers: AllPaid Sick leave accrual:1 hour leave per 30 hours worked, starting with day oneBut: cannot use acquired sick leave until 90 days of employmentMust allow roll-over from one year to next, unless: employee given all sick leave time at beginning of yearEmployer may cap total accrued at 48 hours total, or 24 within a yearExempted employees (those who are not paid overtime) accrue at an assumed rate bases on 40 hours per weekPermitted uses for Paid Sick LeaveDiagnosis, care, treatment of self, or existing condition of family memberPreventive care of self or family memberFM = Child, parent, spouse, grandparent; grandchild, siblingFor those seeking protection from or treatment of Dom ViolenceUpon Separation from EmploymentEmployer is not required to pay employees for accrued sick leave at separation, regardless of reasonAlternative policiesEmployer is in compliance if it offers any combination of sick leave/PTO, as long as:Employee gets 24 hours paid leave each yearCarry-over and accrual standards are metPosting requirementAll the details of sick leave/PTO must be posted in a conspicuous placeRetaliationUnder CA Law, an employer will be presumed (rebuttable) to have violated the law if it denies employees the right to use sick leave, or takes any adverse action in response; ORAny adverse action within 30 days of an employee:Filing a complaint with CA dept of Industrial RelationsCooperating in an alleged violation of sick leaveVacation leaveCA law does not require employers to provide any vacation leave, paid or unpaid.But, if the employer does offer it, it is bound by KAlso: employers must pay accrued vacation time at separation, regardless of reasonVoting LeaveMust allow employees sufficient time to voteNot paid; two hour max1st AMENDMENT: SPEECH AND EMPLOYMENTState Actor: basis for constitutional violationsSpeech is a protected, fundamental right (content cannot be regulated or punished w/out compelling government interest).BUT: special rules apply to government employees Government employer may punish employee whenever the speech is made on the job, and pursuant to official dutiesIf not made pursuant to official duties, two tests applyTopic not of public concern:Employer has wide latitude to punish if speech was disruptive of the work environmentTopic of Public concern:Courts must balance employee’s rights as a citizen against government’s interest in efficient performance of public serviceDisclosure of associationsGov cannot force disclosure of all associations as test for hiringOnly narrow questions that are directly relevantDiscrimination exemptionAs to all: Religious organizations must be granted an exemption from discrimination suits The government may not interfere with the decision of a religious org to fire one of its ministersViolates both Free Exercise (right to shape own views) and Establishment Clause (interfering with Ecclesiastical decisions)Unemployment Compensation ExemptionRequirement that employee be involuntarily unemployed cannot apply when worker quits over conflict with religious beliefs ................
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