CAL-OSHA & CALIFORNIA LABOR LAWS ARE NOW AN EMPLOYER’S NIGHTMARE!

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Labor Laws & Cal-Osha Regulations
Cal-OSHA Field Enforcement Procedures Have Changed Resulting In Mandatory Compliance For All Employers Regardless Of The Number Of Employees.

Cal-OSHA Fines will Increase By 80% effective 2016 (Federal Osha has raised their rates and is demanding Cal-OSHA to raise theirs)

Now, if you only have one employee, you must document in writing that your Safety Program addresses the eight Cal-OSHA requirements and that you are doing them.

Failing to perform the duties that your Safety Program says you will do may cause your company to be assessed for a willful violation and a $25,000 fine.

We make compliance easy! Contact CES Today and find out how we can help you get compliant with the newest Labor Laws and Cal-Osha Regulations.

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Labor Laws California:

What employers need to understand about employee rights.

Many employers may well ask the question, why is an article that features employees’ rights  being featured on a website that defends the rights of employers.

To use an old sports analogy, the best offense is a good defense.

As an employer, if you have a good understanding of the California  Labor Laws you will be less likely to violate them.  Attorneys that bring employee lawsuits are very familiar with the rights of employees.  So when one ponders this, it just makes good sense to know the right of employees, so that you can protect your business.

Introduction:

To an employee, the position that they have with the company is how they are going to be able to live. An employer provides employees with all of the things that are necessary for the employee to exist.  It pays the rent, makes the car payment.  The employee’s job pays the utilities and puts food on the table as well as provides a vehicle for the family to save money for retirement and take vacations.

Many employees are very dedicated to their jobs; they work hard to make ensure that the company meets all company deadlines.  A good employee will work overtime when asked, and a good employee will also show up on time regularly.

Should an employee lose, their job devastation could be the result especially with so much riding on the employee’s job. While it is fair for employers to have certain expectations of their employees, employers must also be aware that employees have rights and that the employer, if he is wise, will endeavor to accommodate those rights.

Let’s take a minute and explore some to the employee rights that employers must be aware of that is unless you want to wind up on the wrong end of an employee lawsuit.

Employees and inspecting their personal file

All employees in California have the right to review their file any time that they want while working for the company.  Upon leaving the company, there is still a window of time that employees can review their file.

Once the employee leaves the employ of the company a written request will give the employer notification that you want to review and within approximately 21 days the employer must make them available for you to review.

 Labor Laws California: Minimum Wage

In most cases by far employers must pay each employee at the minimum wage.

California Labor Laws:  Non-compete and or arbitration agreements

For the most parts, a non-compete agreement is not worth the paper that it is written on.  For example, if an employee leaves company A and goes to work for company B and company B is a competitor of company A, there is not much company can do about that situation.

However, that does not mean the employee is home free either.  There are things like trades secrets, company customer’s lists and other such information that may not be shared or disclosed.

While arbitration agreements are valid in California the wisdom of having one as far as the employers are kind of like the sea coming going out to tide and then coming back in.  The arbitration agreement must be fair and equitable to all parties.  If an employer sets up the arbitration agreement wrong than it could become invalid and overruled.

 Rest and Meal Periods

Employees are entitled to take regular breaks.  These include for an eight-hour shift two ten minute breaks, and one 30 minutes uninterrupted meal period.

 Can my employers give an employee a bad reference?

The simple answer to this question is yes.  At California Employers Services we encourage our members to say as little as possible.  Even when telling the general truth things could be spoken out of context and so, for this reason, we do not encourage employers to give a negative review of an ex-employee.

We encourage employers to answer the dates of employment. And if you are going to say anything and the employer is asked the question would you hire this employee again a simple yes or no will do.

Sexual Harassment in the workplace and employees Rights

Sexual Harassment is illegal. Not only is it illegal but it is happening more than most people want to admit. Many times sexual harassment is expressed in some form of undesirable sexual conduct that comes from another employee in the company. Many times it is a supervisor or management person, or it can also be a vender.  It does not matter the company is responsible to protect the rights of the company’s employees and keep them free from any form of Sexual Harassment.  Sexual Harassment can take the following forms number one pressure for sexual favors, number two sexual comments or sexual harassment can come in the form of email, or inappropriate jokes, or even having sexually explicit pictures hung where others can see them. The courts recognize and have established that there are two kinds of sexual harassment: one is quid pro quo and hostile work environment. If your advancement is deprived of, or if you are denied any other form of work benefits because you have rejected your supervisor’s sexual demands you could be the victim of quid pro quo harassment.

In a hostile work environment case, the sexually based behavior around you must be unwelcome and so prevalent that it alters the work environment, even if you are not the real mark of the conduct.

The Questions now arise what should I do if I find myself in this situation?

Number one document everything that you can. Keep a record or a journal that would include the who what when and where along with both the date and the time of the action.
Don’t be passive, make sure you tell your harasser that these actions are not welcome. Along with that be firm and tell him or her that this must stop, or you will report them.
Make sure you know what your company’s policy is on reporting an incident of this nature, and usually you will find that in the company’s employee handbook.
Once you have followed the company procedure be prepared to report it to the Department of Fair Housing and Employment should you management team not do anything to help stop the unwanted conduct.
California Labor Laws: Overtime

Overtime, when an employee works over 8 hours in a day or 40 hours in a week, California Labor Laws demand the employee be paid overtime.

Does California Labor Laws Have Restrictions on Job Interviews and Questions?

Ah, the old job interview question. What can employers ask as they interview for the job vs. what they can’t ask?  Right off the bat, let’s get to some things that you can’t ask.

  • You cannot ask a job applicant their age.
  • You cannot ask a job applicant if they have ever been disabled
  • You cannot ask any questions concerning Sexual orientation.
  • You cannot ask about the applicant’s religious association.
  • You also cannot ask if the applicant has ever been arrested
  • Now let’s talk about some of the things that you can ask.

You may ask is there any reason the applicant would not be able to perform the work as described in the interview.
You can ask if the applicant has any further trials arising from any previous arrests.
California Employers Services provide our members with a complete list of questions that can be asked during a job interview.  One of the best practices is to ask the employee what do they think their strongest points and then after talking with them give them a senior and see how they would handle it.

Labor Laws California and  Drug Testing in the Workplace

Employers have the right to drug test all applicants, provided the offer of employment has been offered should the applicant’s drug test come back clean. Things get a little more difficult if you are already employed. If you are a current employee, your employer typically must have some legal or significant interest in necessitating drug testing, such as a reasonable cause to make the employer think that you are using drugs. If your job is considered to be safety sensitive, such as a job driving a passenger bus, your employer has more rights to drug test you, and even without giving you notice.

Employee Discipline

Every employee has the right to be certain that they will be treated “fairly” in the workplace. In California, employers are permitted to discipline employees who could take the following forms (writing or verbal warnings which could result in suspension or demotion.) or fire their employees at will.  At-will employment means that either party either the employer or the employee can terminate the relationship at will with or without cause or notice. Being an at-will employer does not give you the right to discriminate.  You have no right, and it is illegal to fire someone because of race, age, or religious affiliations, or gender.

The at-will policy can also be violated by implied contracts.  Should an employer make a verbal policy that an employee will only be terminated for a good cause, you have just violated your at-will status.  If your employer tells you that the company treats all employees as family, and all employees can work here as long as they want, or words to that effect or even actions can be considered to be an implied contract.

The only real way to see if the at-will status of a company is to end up in court so it is better that if you are an at-will employer make sure you do not promise employment for any length time.  Also, when you terminate an employee make sure that they are not a protected class of employee as we already mentioned.

Discrimination in the Workplace

California Labor Law Requires That Employers must treat all employees fairly.  Employers may not fire or discipline an employee based upon,

  • race
  • sex
  • color
  • National origin
  • Age
  • Religion
  • Disability
  • Marital Status,
  • Medical Condition
  • sexual Orientation
  • Gender Identity

What this means is that your employer cannot fire you just because you are women, or a man, or because you may be old.  Many times when an employee becomes pregnant, the employer will want to dismiss her instead of reasonably accommodating her.  All of the above would be in addition to any local laws that may cover some other forms of discrimination.

All employees and employers need to understand that employees have the right to report anything that they may feel discrimination.  The law is clear employers are not to retaliate should an employee report them.  Retaliation is against the law and employers who practice it can be sued.

What Does California Labor Laws Say About  Independent Contractors?

Employment laws do not apply to independent contractors, and the main reason is that they are not employees.  Independent contractors are by definition independent.  That means they work their own hours set their own prices.

They also usually have more than one source of employment.  They may even be employers themselves.  However, employers who hire independent contractors need to be sure that they are in fact independent.  If they do not meet the above conditions, then they are not independent, but rather they are employees, and then the laws concerning employees and employee rights do apply.

 Labor Laws California and Safety in the workplace

All employees in the state of California have the right to work in an environment that is as safe as possible.  If there are unsafe hazards or certain chemicals that may be a harmful to your health, your employer must inform you.  Also, to that Cal-OSHA requires all employers to have an Illness and Injury Prevention Program.  Some of the requirements of that program are mentioned below.

  • Every employer must have the safety officer named in the program
  • Hazard Inspections must be done periodically
  • All employers must conduct regular safety training
  • All workplace hazards must be abated and documentation kept of that abatement.
  • Employees must have a way to report all unsafe work conditions to employer or safety officer
  • Should any company be in violation of any of the above, the employee has a right to report the employer to the enforcement department of Cal-Osha.  When the enforcement team comes out, they have the right and duty to access any and all fines.

Cal-OSHA will be increasing their fines by 80%, so this is something that employers don’t want to play with or ignore.  We encourage all of our members to think safe and be safe.  That way the potential for those high fines no longer exist.

 Time off from work to take care of my child, or my husband or myself for a medical condition that is serious?

In many cases, yes. According to the Federal Family Medical Leave Act (FMLA), you could be entitled to take as much as 12 weeks of unpaid leave without risking your job security if you meet the following criteria:

You have a serious health condition, need to care for a family member with a serious medical condition, cannot work due to pregnancy or childbirth-related condition, or have a new child in the family.
You have worked for the same employer for a total of one year and have worked at least 1,250 hours during the immediately preceding year.
You work for an employer who employs at least 50 workers within a 75-mile radius.
The California Family Rights Act (CFRA) offers like employee rights. And if a pregnancy or childbirth-related condition causes you to be unable to work, you may be allowed up to an additional four months of disability leave under California’s Pregnancy Disability Leave Act.

Before requesting an FMLA/CFRA leave, acquaint yourself with your legal rights and responsibilities. For example, some leaves can be used consecutively or, if medically necessary, intermittently (even a portion of a day at a time) throughout the year. Knowing in advance of requesting your leave will help you to get the most out of your leave.  Employees who are requesting these types of leave must, as a rule, give their employer 30 days’ notice.

Employers do have the right to ask for a doctor’s note.  While your job is normally safe, that is not always the case since the employer does have the right to delete that position from the company.

What about disability and reasonable accommodation?

Yes, it is possible, it is going to depend on the number of employees that the company you work for employs.  If your company employees five or more employee then yes.  The next thing to consider is your ability to perform your job without the need for any reasonable accommodations.

Under California labor law, employers are mandated to accommodate the employee’s disability if the employee is physically disabled or the employee is mentally impaired to a substantial degree. Reasonable accommodation might involve adapting your work schedule to accommodate you, or it could mean the modification of certain equipment thus improving the availability of your work area to you.

For the law to require reasonable accommodation, however, the workplace modification must not pose an undue hardship on the employer.

California Labor Laws And Employee Paycheck Deductions

Below is a list of the deductions that employers can take out of an employee’s check.

  • Losses initiated by the employee’s dishonesty, or the employee’s willful misconduct or gross negligence
  • Particular deductions that you formerly furnished written approval to the employer to make.
  • Food and lodging that has been established with an agreement are also funds the employers may deduct from employees paychecks.  It should be noted that employers may offset the minimum wage by providing food or lodging.

With that being said employers cannot require employees to pay for food or lodging through your job.

Also, wages could be deducted for food and lodging that, are part of your salary. And, under certain situations, an employer can offset minimum wage payments by providing you with food and housing. Your employer cannot, however, necessitate you to pay for meals or housing through your job. And if you have to purchase tools or a special uniform for your job, your employer typically has to compensate you.

Here are a couple of other points concerning deductions from paychecks.  If you have to purchase a special tool or uniform your employer must reimburse you for those items.

Finally, if you owe your employer money from an advance on your pay or if your employee provided you with some kind of loan, the employer make not take the remainder of that balance from your final paycheck should your employment with the company come to an end.  However, if you are on a payment agreement for the loan or pay advance, the employer may deduct that month’s payment from your final check.

Overtime, Rest Periods, and Meal Periods, and Vacations

According to California Labor Laws, Employers must pay overtime when an employee works over 8 hours in a workday, or over 40 hours in a work week.

The rate of overtime is 11/2 times the normal rate of pay.  If an employee works 12 or more hours in a day, the first 8 hours are paid at the regular rate of pay.  Hours over 8 to 12 are paid at 11/2 times, and hours 12 and beyond are paid at the rate of twice the regular rate of pay.  If an employee works seven days in a week, the first 8 hours are at 1/12 and any hours over 8 are paid at twice the regular rate of pay.

Since the Brinker case, there has been some clarity on meal periods.  All employees must have an opportunity to take a meal break if the employee works over 6 hours in a day.  The meal break should be taken somewhere between the 5th hour of the day, but must be taken by the sixth hour of the workday.

Employees can take their meal periods anytime during the day.  In other words, if the employee wants to take his/her meal period after 2 hours of work they may do so.  Since the Brink decision employees also have the right to choose to work through their lunch at the employee’s discretion.  However, wise employers will not allow their employees to make a habit of this, or it could come back and bite the employer.

Each employee is allowed two ten minute breaks, one in the early part of the shift and the other break ideally should be taken after lunch.  The employee does not have to clock out for the ten minutes breaks, but it would not be a bad policy to have them clock out, so the employer has documentation that the employee does get and take their breaks.

In California Vacations are not an employee right but rather a benefit that is totally up to the employer.  If the employer does provide vacations, it is up the employer to determine how much vacation employees will get.  But if the employer decides to give vacations then he must give them to all employees.  If one employee in a department gets vacations, then all employees in that department must get a vacation.

Employees Getting Injured On The Job And Compensation

In most cases the answer would be yes as long as your injury is or was job-related.  If your injury is not job-related, then you still may qualify for State Disability Insurance.

When an employee gets injured on the job.

All employers in the state of California must purchase workers compensation insurance.  When it comes to on the job injuries, this is pretty much the employees only source of benefits.

However, if you are hurt due to your negligence, because you violated a company safety rule your benefits could be reduced.

As you can see Labor Laws California are not something to play with.  And today the fines and potential for lawsuits are just not worth the risk.  As I am constantly telling employers today is just not the time to be out of compliance with the California Labor Laws.

While it is still true that the odds are against you getting caught those odds are decreasing daily and in addition to that the fine from Cal-Osha and the defense cost from an employee lawsuit could cost an employer over $70,000.00 on both sides, that comes to a $140,000.00 should you get caught in a perfect storm.

Today employers need to make sure that their employee handbook is current, and that they have a good safety program.  If they have employees that are working in temperatures of 90-degree heat or more, they should have an effective safety program in place.

Not only should they have all of these but they need to be doing them.  Cal-OSHA would like to see employers have a safety consultant.  And they say this because they know that most employers are not in compliance to begin with. Should you have any questions, we are here for you and as we always say the only dumb question is the one that does not get asked.

Labor Laws California: CES Today