Seyfarth Synopsis: Our mission here at Cal-Pecs is to illuminate how California employment law differs from the law that employers generally experience throughout America. In this back-to-basics piece, we provide some background and a brief catalog of stark contrasts.
In 1846, American settlers in Mexican Alta California staged the Bear Flag Revolt. They declared an independent republic, seeking freedom from Mexico. The rebels got lucky: the Mexican-American War soon intervened to dislodge the California territory from Mexican control. California, in 1850, became our thirty-first state.
The legacy of the Bear Flag Revolt continues: the state flag depicts a grizzly bear astride a patch of grass, above the logo “California Republic.” The underlying rebellious attitude has persisted as well. State politicians—especially since the 2016 election—have defiantly proclaimed California’s right to chart its own course on such vital matters as the environment, health care, immigration, and the right to use marijuana.
Perhaps nowhere is California’s independence more prominent than in the area of employment law. Federal labor law hit high tide in the 1930s, with the National Labor Relations Act and the Fair Labor Standards Act. The high tide returned in the 1960s—bringing us the Equal Pay Act, Title VII, and the Age Discrimination in Employment Act—and returned yet again in the 1990s, bringing us the Americans with Disabilities Act and the Family and Medical Leave Act.
In the Golden State, meanwhile, the waves of employment regulation have risen ever higher, even when federal regulations have ebbed. The chart below spots differences between federal and California law in key areas of interest to employers that operate both in California and in the rest of America. In each case, of course, the California version favors employees, plaintiffs, and unions, while never favoring the employer.
|Issue||U.S. Law & State Law Generally||California Law|
|What’s the minimum wage?||$7.25, and higher in a few states||$10.50, rising to $15 by July 2022|
|Must that wage be paid separately for all work, including unproductive tasks?||No. Employers generally can comply with an average wage that meets the minimum.||Yes. This result has surprised some employers that pay piece rate or commissions.|
|Must employers pay non-exempt piece-rate and commission workers separately for rest breaks?||No||Yes|
|Must employers pay non-exempt employees for required travel outside regular hours?||No||Yes|
|What overtime hours generally require premium pay?||Only hours worked in excess of 40 per week.||Weekly overtime plus daily overtime (over 8 hours per day) plus any time on seventh consecutive workday in a workweek.|
|Can employers use the “fluctuating workweek method” to compute overtime pay for salaried non-exempt employees?||Yes. The regular rate is salary divided by all hours worked, with a 0.5 multiplier for overtime hours.||No. The regular rate is deemed to be weekly salary divided by 40, and the overtime multiplier is 1.5, not 0.50.|
|Is doubletime ever required?||No||Yes, for hours exceeding 12 per day or 8 hours on a seventh consecutive workday.|
|Are there civil penalties for labor law violations?||Often no, and penalties that do apply are relatively modest.||Yes: for many Labor Code violations penalties are typically $100 per employee per pay period.|
|Can plaintiffs personally sue supervisors and co-workers under anti-harassment statutes?||No||Yes|
|Are middle managers, pharmacists, and nurses typically exempt from overtime rules?||Yes||No|
|Are employees entitled to reimbursement for routine business expenses?||No||Yes|
|What statuses do employment discrimination laws protect?||Race, color, religion, sex, national origin, age over 40, disability (and sexual orientation by some judicial readings of Title VII)||Those plus sexual orientation, gender identity, transgender status, political affiliation, marital status, breastfeeding, HIV status, requests for disability accommodation, etc.|
|Can employers invoke the “undue hardship defense” for religious accommodations simply by showing a cost > de minimis, and can they accommodate grooming and dress practices by transferring employees to a more remote location?||Yes and yes.||No and no. The “undue hardship” defense must meet the same tough test required in disability cases. And it is categorically unreasonable to accommodate a religious dress or grooming practice by moving the employee away from the public.|
|Can undocumented workers recover back pay on a claim for wrongful termination?||No||Yes; immigration status of a worker is irrelevant to any California remedy, except reinstatement of employment if prohibited by federal law.|
|Can an employer fire a worker who provided a false name, SSN or information about legal status to work?||Yes||No; an employer cannot discharge, discriminate, retaliate or take any adverse action against an employee who updates such information based on a lawful change.|
|What consequences do employers suffer for denying meal or rest breaks?||Breaks that are too short are counted as working time.||Failure to provide specified, timely breaks can result in up to two extra hours of premium pay per day.|
|Are “use it or lose it” vacation plans acceptable?||Yes, generally.||No|
|Is paid sick pay required?||No||Yes|
|Do farmworkers have the right to unionize, and do unions enjoy special protections with respect to their mass picketing?||No and no.||Yes and yes. California’s Agricultural Labor Relations Act protects farmworkers, and its Moscone Act limits judicial power to prohibit mass picketing.|
As this limited sample of comparisons might suggest, an employer used to doing business elsewhere can find California employment law a real bear. For more detailed treatment, see the 2017 edition of our Cal-Peculiarities: How California Employment Law is Different.