1

INDEX

A Abortion

healthcare workers, rights regarding, 275 unlawful questions, not to be asked by employers, regarding, 22

ACA (Affordable Care Act of 2010) COBRA, and health benefit exchanges, 115 Covered California (California Health Benefit Exchange)

Affordable Care Act (ACA) and, 113, 115 fingerprint requirements under, 24, 39, 62 navigators, health insurance, under, 116 SHOP Exchange, small business marketplace under, 115

discrimination and retaliation, protections under,115 employer mandate under, 113–115 health benefit exchanges and marketplaces under, 115 individual mandate under, 113 introduction to, 113 Medicaid/Medi-Cal under, 116 navigators for, 116 rights under, 270, 281 significant changes in medical coverage under, 116 tax credits and subsidies under, 115–116 unions and, 116

ADA (Americans with Disabilities Act) AIDS/HIV testing results and, 306 complaint, filing under, 192 discrimination under, 172, 174, 178 drug testing under, 43–45 reasonable accommodation, employer's duty under, 178-182 records retention under, 300 retaliation protections under, 188-189 serious health condition, as disability under, 143

ADEA (Age Discrimination in Employment Act) complaint, filing under, 192 defenses, employer, under, 25 discrimination under, 21, 25, 172, 174 records retention under, 300 retaliation protections under, 189

Administrative agencies, obtaining information from, 8 Administrative exemption to IWC orders, 74 Administrative order, disclosure of healthcare records pursuant to, 310 ADR (Alternative dispute resolution) system, 218–219 Affordable Care Act (ACA) of 2010

COBRA, and health benefit exchanges, 115 Covered California, California's Health Benefit Exchange, 115 discrimination and retaliation, protections against, under,115 employer mandate under, 113–115

2

health benefit exchanges and marketplaces under, 115 individual mandate under, 113 introduction to, 113 Medicaid/Medi-Cal under, 116 navigators for, 116 rights under, 270, 281 significant changes in medical coverage under, 116 tax credits and subsidies under, 115–116 unions and, 116

Age Age Discrimination in Employment Act (ADEA). See Age Discrimination in Employment Act (ADEA) applicants, unlawful questions, 20–21 harassment based on, 185

Age Discrimination in Employment Act (ADEA) complaint, filing under, 192 defenses, employer, under, 25 discrimination under, 21, 25, 172, 174 records retention under, 300 retaliation protections under, 189

Agricultural employees Agricultural Labor Relations Act, 244 IWC Order covering, 67 lead hazard standard for, 206 meal periods for, 91–92 NLRA, exclusion from coverage, 243 overtime, 76 paycheck regulations, 98 personnel file, entitled to copy of, 295 pesticide restrictions, applicability to, 211 piece-rate work, 82 seventh workday, pay for, 87

Agricultural Labor Relations Act (ALRA), 244, 246 Agricultural Labor Relations Board (ALRB), 244, 246 AIDS/HIV

Comprehensive AIDS Resources Emergency (CARE)/HIPP Program, 118 healthcare records, special protection of, 38, 294, 299, 302, 305 Medi-Cal coverage for, 116 screening, discrimination based on, 28 testing, confidentiality of, 306

Alcohol treatment records, protection of, 305 ALRA (Agricultural Labor Relations Act), 244, 246 ALRB (Agricultural Labor Relations Board), 244, 246 Alternative dispute resolution (ADR) system, 218–219 Alternative workweek schedules, 76–77 Americans with Disabilities Act (ADA)

AIDS/HIV testing results and, 306 complaints, filing under, 192 discrimination under, 172, 174, 178-182 drug testing under, 43–45

3

reasonable accommodation, employer's duty under, 178-182 records, retention duration under, 300 retaliation protections under, 188-189 serious health condition, as disability under, 143

AmeriCorps, exemption from IWC orders, 67 Appeals

Berman hearing process, (Order, Decision, or Award (ODA)), 104–105 ERISA, 111–112 healthcare records, appeal from denial of access under HIPAA, 307 SDI, 129 Unemployment Insurance, 162 Veterans Administration (VA), pensions and disability, 165 Workers' Compensation Appeals Board (WCAB), 216, 218–219, 223, 224–225, 227, 233, 236–237

Appearance standards, 30 Applicants

bonds, requiring, 23, 28 commercial drivers, permitted questions, 25 copies of applications, 20 drug testing, 32, 42–45 English fluency requirement, 30 forced patronage, 29, 95 grooming, dress and appearance standards, 30 health Information and records, rights regarding

access to records, right to limit, 31 drug testing, 32 medical release, right to refuse to sign, 31

investment in business, requiring, 29 labor disputes, right to information about, 18–19, 29, 250 lie detector tests, requiring, 30 medical examination, right to unbiased, 30–31 military service, questions regarding, 25 obesity, disability under FEHA, 30 photographs, requiring, 29–30 polygraph tests, requiring, 30 relocation requirement, 29 residency requirement, public employers, 29 rights prior to application, 18–20 unlawful questions, not to be asked by employers, regarding

age, 20–21 ancestry, 21 arrests and arrest records, 23–24 associations, 24–25 bonds, cash, 23 child or family support, 24 color, 21 credit rating, 24 disability, 23 gender, 21–22 gender identity/expression, 21–22 immigration, 21

4

marital status, 22–23 memberships, 24–25 national origin, 21 nationality, 21 other, 25 police records, 23–24 politics, 24–25 pregnancy, 23 race, 21 religion, 23 sex, 21–22 sexual orientation, 22

Apprentices, minimum wage exception for some, 75 Arbitration

alternative dispute resolution (ADR) system and, 219 claims under, 106 collective bargaining agreements and, 105–106, 246, 251, 255–256 defined, 9, 12–13 non-union employees and, 106 union contractual agreement requiring, 9–13, 106 workers’ compensation, effect on, 219

Arrests, 23, 24, 38, 45, 50, 52, 56–57, 58–60, 62–63, 299 Asbestos

duty to protect workers from, 204–205 whistleblowers and, 285

Assignment of wages, 96, 269 Associations, unlawful questions of applicants, 24–25 Attorney’s fees

applicants, denial of right to information about labor disputes, 250 consumer credit reports

inspection, failure to allow, 53 investigative agency files, misuse of, 50 misuse of, 48 notice, failure to give, 51–52

discharge or discipline, 266 employment agencies, from, 18 employment counseling services, from, 19 healthcare record violations, 303, 305–306 insurance files, misuse of, 56 job listing services, from, 19 local government, failure to allow inspection of individual's files, 55 nurses’ registries, from, 20 personnel file violations, 295 photographs, misuse by employers, 30 police records

attempting to have employee obtain, 58 expunged records, misuse of, 58 unlawful access or disclosure of, 57

records, obtained without consent of employee, 38

5

reimbursement for legal expenses, 97 wage claims, unsuccessful and, 103 whistleblower violations, 284 Workers' Compensation, strictly regulated, 220

At-will employment factors that may Indicate, 257 factors not indicating, 257 overview of, 254–255

B Babysitters

Domestic Worker Bill of Rights, exception from, 70 IWC orders, exemption from, 67 workers’ compensation, exclusion from coverage, 217–218

Baking industry, meal periods, 92 Banking institutions, access to police records by, 63 Bankruptcy Act, 28 Bankruptcy, discrimination based on, 24, 27–28, 53 Banks, access to police records by, 63 Benefits

ACA (Affordable Care Act of 2010) COBRA, and health benefit exchanges, 115 Covered California, California's Health Benefit Exchange, 115 discrimination and retaliation, protections against, under,115 employer mandate under, 113–115 health benefit exchanges and marketplaces under, 115 individual mandate under, 113 introduction to, 113 Medicaid/Medi-Cal under, 116 navigators for, 116 rights under, 270, 281 significant changes in medical coverage under, 116 tax credits and subsidies under, 115–116 unions and, 116

bone marrow/organ donation leave, 164 California Public Employees' Pension Reform Act of 2013 (PEPRA), 112–113 California Secure Choice Retirement Savings Plan, 165 COBRA (Consolidated Omnibus Budget Reconciliation Act of 1985), 111, 115,117–118, 147 employer healthcare plans

coverage after termination or loss of dependent status (COBRA), continuation of, 111, 115,117–119, 147 pre-existing conditions, coverage of, 117 procedures for enforcing terms of a health insurance plan, health maintenance organization (HMO), 117 traditional health benefits under, 117

ERISA (Employee Retirement Income Security Act of 1974) employer's responsibilities under, 111–112, 117 pension benefits under, 111 plans, funding under, 111 plans, minimum standards under, 111 records, retention duration under, 301

6

retaliation claims under, 284 severance pay, claims under, 106 trust funds under, 77, 90 vacation leave, payment of accrued upon separation, under, 119 welfare benefits under, 111 workers’ compensation exemption, 111

family leave, See Family leave healthcare plans. See Healthcare plans kin care, 120–121, 124, 153 overview of, 110–111 Patient Protection and Affordable Care Act (ACA) of 2010. See Affordable Care Act (ACA) of 2010 PEPRA (California Public Employees' Pension Reform Act of 2013), 112–113 pregnancy disability leave. See Pregnancy disability leave school or licensed child care visits,164 SDI. See State Disability Insurance (SDI) sick leave and kin care. See Sick leave and kin care State Disability Insurance (SDI). See State Disability Insurance (SDI) Unemployment Insurance (UI). See Unemployment Insurance (UI) vacation leave. See Vacation leave veterans benefits

disability and, 165 fee and tax waivers and, 167 FMLA and, 134–135, 137, 144 health and related, 166–167 hiring preference, 25 homeless, special protections, 95–96 other assistance, 167 pensions and, 165 resources for, 165 service-connected disability and, 166 Veterans' Employment and Training Service (VETS), 194, 284 Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA) of 1974, 173, 174, 193

workers’ compensation (See Workers’ compensation) Berman hearings, 104–107 Blocking information upon identity theft, 47 Bona fide occupational qualification (BFOQ) defense, 21, 23, 25–27, 30, 191–192 Bonding leave, 129, 131, 136, 139, 150–151, 154–156 Bonds

applicants, requiring from, 23, 28 cash, as deposit for employer provided goods, 94, 96 employees, requiring from, 28, 94, 96 employer’s duty to pay, 23, 28 Federal Bonding Program (FBP), 28 fidelity, 28 refusal of bond, 28 U.S., voluntary deductions, 95

Bonuses calculation of, 87 general rules regarding, 87 separation from employment, following, 87

7

Unemployment Insurance, effect on, 163 Brown Act. See Meyers-Milias-Brown Act (MMBA) Bureau of Field Enforcement (BOFE), 104 Business necessity, as defense against discrimination claims, 25–27, 177, 184, 191–192

C Cal-COBRA, 118–119 California Constitution

discharge or discipline, public employees and, 263–264, 270–271 discrimination and, 170 drug test requirements under, 44 picketing and, 247–248 privacy, right to under, 294, 298 "protected rights" under, 269–270 residence requirement, limits on, for public employees under, 29 whistleblower rights, public employees and, 279

California Depart. of Fair Employment and Housing (DFEH). See Depart. of Fair Employment and Housing (DFEH) California Drug-Free Workplace Act of 1990, 42 California False Claims Act, 284 California Family Rights Act (CFRA). See Family leave California’s Health Benefit Exchange (Covered California)

Affordable Care Act (ACA) and, 113, 115 fingerprint requirements under, 24, 39, 62 navigators, health insurance, under, 116 SHOP Exchange, small business marketplace under, 115

California Highway Patrol, 68 California Invasion of Privacy Act, 40 California Office of Privacy Protection, 313 California Pregnancy Disability Leave Act (PDL). See Family leave California Public Employee Relations (CPER), "Pocket Guides", 54, 245, 265 California Public Employees' Pension Reform Act of 2013 (PEPRA), 112–113 California Public Records Act, 54 California Secure Choice Retirement Savings Plan, 165 California State University

discharge or discipline of employees, 263 Higher Education Employer-Employee Relations Act (HEERA), labor relations in, 244 personnel files, right to inspect, 296–298 Pregnancy Disability Leave (PDL) Act, rights of female employees of, 149 retaliation claims, 281, 283 Workers' Compensation, work-related criminal act of violence exception for employees of, 229

California Training Benefits (CTB) program , 163–164 California Whistleblower Protection Act, 282 California Work Opportunity and Responsibility to Kids Program (CalWORKS), 163, 273 Cal-OSHA

discharge or discrimination unlawful, for assisting, 199 harmful substances exposure, duty to record and monitor under, 202–203 health and safety, employer's duty to safeguard under, 198 injuries and illnesses, duty to keep records under, 201, 202 Injury and Illness Prevention Program (IIPP), requirements under, 201 overview of, 197–198 retaliation, prohibited under, 198–199

8

safety, health and sanitation violations, claims for, 198–199, 213 tools and uniforms, 98 unsafe conditions, refusal to work in, 199

CalWORKS (California Work Opportunity and Responsibility to Kids Program, 163, 273 CARE (Comprehensive AIDS Resources Emergency/HIPP Program, 118 Cash, payment of wages by, 100, 101–102 Certification

convictions, effect of, on jobs that require, 59, 61, 63 medical

leave, family and, 141, 142–147 PDL Act, requirements under, 150 residential facilities for developmentally disabled, 61 SDI, 126, 128

U visa, victim of crime, 35 CFRA(California Family Rights Act). See Family leave Changing rooms, 42, 206, 209 Charges. See specific agency or topic Charitable functions, time spent during, 85 Child abuse, whistleblowers and, 277, 288 Child daycare employees, special whistleblower protections, 286 Child support, unlawful questions of applicants, 22 Civic functions, time spent during, 85 Civil rights. See Discrimination Civil Rights Act of 1866, 174 Civil Rights Act of 1871, 174 Civil Rights Act of 1964. See Title VII Civil Service Reform Act of 1978, 241, 243–244 Civil service protections against discharge or discipline, 256, 258, 262–263, 264–265 Claims

Labor Commissioner. See Labor Commissioner, claims with preparing to document for, 9–10 undocumented immigrant workers, earned wages and, 15 where to pursue

arbitration and, 12 courts and, 11–12 criminal prosecution and, 12 documentation for, 9–10 enforcement agencies, 11 "independent contractors" , employees wrongly classified, and, 14 Labor Commissioner, 10–11 time limits for, 12 union contracts, special rules for wage and hour, 12–13 union grievance procedure for, 10

Coast Guard, 289 COBRA (Consolidated Omnibus Budget Reconciliation Act of 1985), 111, 115, 117–118, 147 Collective bargaining agreements

Affordable Care Act (ACA) and, 116 arbitration under, 11, 12, 106, 256 benefits, employer's duty to fund under, 112 compensatory time off (CTO or "comp time" ) and, 78

9

confronting employers under, 9 deductions from wages under, 93–94, 95, 96 discharge or discipline under, 255–257, 259 family leave and, 156 fixed-term contracts under, 258 grievance procedure under, 10, 85, 254 IWC orders, applicability of to employees covered by, 70 just cause or good cause requirement, included In, 255–257 labor commissioner claims under, 10–11, 105 minimum wage and, 75, 85, 105 overtime exception, 77 pensions under, 112 performance evaluations, access to under, 54 prevailing wages on public works projects and, 81 public employment and, 258, 262–263 retaliation and, 281 SDI, integrating benefits and, 130 sick leave pay under, 90, 120, 123, 130 special rules for wage and hour claims under, 12–13 state employees, letters of reprimand and, 54 strikes in violation of, 249–250 union grievance procedure under, 9, 10 vacation time for employees covered by, 90, 119, 262 wage and hour claims under, 11, 12–13 wage claims covered by excluded from Labor Commissioner jurisdiction, 105–106 whistleblowers and, 283

Collective bargaining rights, 246 Colleges and universities. See California State University; University of California Commercial drivers, permitted questions, 25 Commercial employees, use of detectives in discharge or discipline, 267–268 Commercial vehicles, whistleblowers and, 288 Commissions

IWC overtime orders, commission sales exemption, 69 minimum wage and, 82 overview of, 86 "regular rate of pay", calculation includes, 77–78 separation from employment, following, 86–87

Community care facilities, access to police records by, 59 Community Care Licensing Division, 61 Community colleges

discharge or discipline of employees, 263, 285 Education Employment Relations Act (EERA), governs labor relations at, 244 personnel files, right to inspect, 294, 296

Compensation. See Wages Compensatory time off ("comp time" or CTO) in lieu of overtime

private sector employees, 78–79 public sector employees, 79

Complaints. See specific agency or topic Comprehensive AIDS Resources Emergency (CARE)/HIPP Program, 118 Computer Fraud and Abuse Act, 42

10

Computer professional exemption to IWC orders, 72 Concerted activity

confronting employers as, 9 information, regarding, 8 right to engage in, 245–246 whistleblowers and, 278

Concluding tasks, time spent during, 84 Confidential information

Covered California (California Health Benefits Exchange) and, 24 credit rating, questions about, and, 24 employers, limit to access to, 299 healthcare Information, protected, 306–311 investigations by employers, 39 whistleblowers and, 279

Confronting the employer anti-retaliation laws when, 9 claim, preparing to document before, 9–10 collective bargaining agreements, under, 9 concerted activity when, 9 help, importance of getting before, 9 rights, preservation of before, 10

Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), 111, 115, 117–118, 147 Constructive discharge, 160, 254 Consumer Affairs Department, complaints to, 39 Consumer Credit Protection Act, 284 Consumer credit reports

consumers, rights of, 45–50 employees, rights of, 50–53 Fair Credit Reporting Act (FCRA), 46, 48, 51, 53, 266 files, right to view, 46–47 identity theft, rights regarding

blocking information, 47 security alerts, 47 security freezes, 47–48

inaccurate information, right to correct, 48–49 inspection, right to, 53 investigative consumer reports

inspection, right of, 53 investigations conducted without use of investigative consumer reporting agency, 52 notice, right to, 51–52 obsolete information, right to remove, 50 overview of, 45–46 prohibited information, right to remove, 50

notice, right to consumer credit reports, 51 investigative consumer reports, 51–52 negative employment outcome, 53

obsolete information, right to remove consumer credit reporting agencies, 49

11

investigative consumer reporting agencies, 50 overview of, 45–46 reporting agencies, duties of, 46–50

Corruption, whistleblowers and, 290 Court costs

applicants, denial of right to inform about labor disputes, 250 consumer reports, investigative, violations of right to written notice, 52, 266 credit reports

violations of identity theft "security freeze", 48 violations of right to notice, 51

discharge or discipline, 266 employment files, violations of right to inspect, 295, genetic testing, violations of confidentiality of results, 306 health records, violations of, 307 insurance files, violations of right to see, copy, and correct, 56 legal expenses, reimbursement for, 97 local government files, violations of right to inspect and copy, 55 photos of employees, misuse of, 30 police records, arrests and convictions, violations of, 57, 58 Private Attorneys General Act (PAGA), Labor Code violations and, 284 wage statements, employer's failure to provide, 101 whistleblowers and, 284

Court order, disclosure of healthcare records pursuant to, 310 Covered California (California Health Benefit Exchange)

Affordable Care Act (ACA) and, 113, 115 fingerprint requirements under, 24, 39, 62 navigators, health insurance, under, 116 SHOP Exchange, small business marketplace under, 115

CPER (California Public Employee Relations), "Pocket Guides", 54, 245, 265 Credit rating, unlawful questions of applicants, 24 Credit reports. See Consumer credit reports Criminal investigations and records. See Police records Criminal offenses

asbestos exposure violations, 205 discharge or discipline, use of detectives, regarding, 267 election officers, discharge or discipline for serving as, 273 employment agencies, by, 18 employment counseling services, by, 19 ex-felon or parolee status, disclosure of, 59 expunged records, rights regarding, 58 false charges of, as retaliation, 190 forced patronage, requiring from applicants, 29 forced patronage, requiring from employees, 95 identity theft, 311–313 illegal activity, right to refuse to participate in, 279 insurance files, regarding, 56 investment in business, requiring from applicants, 29 job listing services, by, 19 nurses’ registries, by, 19–20 personnel file violations, 295–296, 299 photographs of applicants, regarding, 29–30

12

police records, regarding. See also Police records attempting to have employee obtain, 57–58 disclosure of, 57–58 employers, limits on access to, 56–57 employers, those with access to certain, 59–63 ex-felon or parolee status, disclosure of, 59 legal terms, definitions regarding, 57 public utility employees with access to residences, disclosure of, 62

prosecutions for, 12 public office, discharge or discipline for seeking or holding, 272 relocation requirement, regarding, 29 SDI and, 126 trespass, union representatives, 246 voting, discharge or discipline for, 272 wage theft, 102–103

whistleblower violations, 279–280, 284, 285–290 Criminal prosecution of employer, making a claim for, 12 CTB (California Training Benefits) program, 163–164 Customer preference, discrimination based on, 27

D Damages

applicants, denial of right to information about labor disputes, 250 consumer credit reports, regarding

inspection, failure to allow, 53 notice, failure to give, 51 obsolete credit information, failure to remove, 50 prohibited credit information, failure to remove, 50

disability, employer's duty of reasonable accommodation and , 182 discharge or discipline, regarding, 266, 274 employment agencies, from, 18 employment counseling services, from, 19 family leave violations, for

CFRA, under, 148–149 FMLA, under, 148

fingerprints of applicants, regarding, 38–39 healthcare record violations, for, 305–306 job listing services, by, 19 nurses’ registries, by, 20 personnel file violations, for, 295, 299, 305–306 photographs of applicants, regarding, 38–39 police records, regarding

attempting to have employee obtain, 57–58 disclosure of, 57–58 expunged records, misuse of, 58

prevailing wage violations, for, 82 retaliation and, 190, 278 secretly recorded conversations, for, 41 security alerts, for failure to place, 47

13

security freeze violations, for, 48 University of California, retaliation and, 282 voting, discharge or discipline for, 272 whistleblower violations, for, 284–285, 290 wiretapping, for, 41

Daycare facilities, access to police records by, 60 "DE 2501" form, application for SDI, 127 Death benefits, survivor's, 232 Deductions from wages

Affordable Care Act (ACA), individual mandate and, 113 applications, job, 94–95 assignment of wages, 95, 96 bonds, 96 collective bargaining agreements, under, 95 fines and penalties, 94 forced patronage, 95 garnishments, 95 kickbacks, 95 lawful, 95–96 loan repayment, 94 loss, breakage or shortage, 94 medical examinations, 94–95 overpayment of wages, 94 records, retention of, 300–301 required payments, 93–95 SDI contributions, 95, 125 Social Security, 95 tax liens, 95 tools or uniforms, failure to return, 94 unauthorized, 11 unlawful, 93–95 wage overpayments, 94 wage statements, 100, 295 worker’s compensation costs, 95

Defamation as discipline, 274 Department of Fair Employment and Housing (DFEH)

applicants, information regarding unlawful questions, 20–23 certification for U visa, 35 complaints with

applicants, by, 11, 20–23, 27 discharge , 258, 261 discrimination, 170, 174, 192–193 family leave violations, for, 148 harassment, for, 186, 192–193, 275 hiring, for discrimination in, 27 nursing mothers, by, 152 overview of, 11, 170, 192–193 pregnancy disability leave, 130, 152 whistleblowers, retaliation claims by, 281, 282, 284

14

disability discrimination, obtaining information on, 178 family leave, obtaining information on, 130, 148 investigations, 195 U visa, obtaining certification, 35

Department of Labor, United States (DOL) COBRA issues, 119 Employee Benefits Security Administration, 119 Employment and Training Administration, 28 ERISA claims, 112 family leave violations, complaints regarding, 148 federal contractors, discrimination by, 194 health and safety complaints, retaliation for, 213 retaliation claims with, 213, 281 Service Contracts Act, violations of, 274 USERRA and, 118 Wage and Hour Division, complaints to (See Wage and Hour Division, complaints to) wage releases or waivers, 102 whistleblowers, claims by

overview of, 281 retaliation claims to, 281–284, 288, 290

Detectives, use of in discharge or discipline commercial, retail or service employees, 267–268 public utility employees, 266–267

Developmentally disabled persons healthcare records, protection of, 305 residential facilities, access to police records by, 59, 61 whistleblower rights and, 287

DIR (Industrial Relations, California Department of). See Industrial Relations (DIR), California Department of Disability discrimination

Americans with Disabilities Act (ADA) and, 172 conditions considered disabilities, 178–180 hiring rights and, 23 limits on major life activity, 180 mental disability, 179–180 obtaining information on, 178, 180 overview of, 178 physical disability, 179 pregnancy and, 23 prohibited actions, 180 qualification for position, 180 reasonable accommodation, employer's duty to provide, 178–182 Rehabilitation Act of 1973, under, 173 undue hardship, 181

Disabled persons applicants, unlawful questions, 23 conditions considered disabilities, 178–180 discrimination against (See Disability discrimination) drug testing and, 44–45 harassment, 185 residential facilities for developmentally disabled, access to police records by, 63

15

Discharge and disciplinary action abortion rights of healthcare workers, violation of, 275 at-will employment and,

factors indicating, 257 factors not indicating, 257 overview of, 254–255

civil service protections, 264–265 collective bargaining agreements, under, 264 Constitutional protections, 263–264 constructive discharge, 254 defamation as discipline, 274 defined, 254 detectives, use of

commercial, retail or service employees, 267–268 public utility employees, 266–267

employees and union rights, regarding caution when signing documents, 260 detective, rights when employer uses, 266–268 immediate actions, 259–260 investigation, special rights if termination is based on an, 265–266 meeting with employers, 259–260 personnel file, right to review, 266 prior to discharge or discipline, 259 property, disposition of, 260 public employees, special laws for, 262–265 seeking assistance, 259 TAA (Trade Adjustment Assistance Program), 268 vacation, right to accrued, 262 wages, right to prompt receipt of, 261–262 WARN (Worker Adjustment and Retraining Notification Act), 268

exhaustion of administrative remedies, 260–261 federal civil service employees and, 265 fraud as discipline, 274 healthcare issues and, 260 humiliation as discipline, 274 investigations by employers, based on

inspection of personnel records, right of, 266 notice of investigation, right to, 265–266 rights regarding, 265–266

involuntary break in employment, 254 just cause or good cause requirement for

collective bargaining agreements as source of, 255–256 express contracts as source of, 256–257 fixed-term contracts as source of, 257–258 implied contracts as source of, 256–257 overview of, 255

Labor Commissioner, claims with abuse reports and, 287–288 child daycare workers and, 286 environmental law violations and, 288

16

healthcare workers and, 286 investigations by employers, based on, 266 land and sea transportation law violations and, 288 long-term care workers and, 287 personnel file, right to review, 262, 295 prisons and institutions workers and, 287 prompt receipt of wages, right to, 261 Unemployment Insurance laws and, 287 vacation time, right to accrued, 262 whistleblowers, unlawful retaliation and, 281–284

military service, for, 269 mitigation of damages, 274 overview of, 253–254 pension issues, 260 protected rights, for exercise of

election officers, serving as, 273 free speech, 271 public employees, 270–271 public office, seeking or holding, 272–273 violations of law, reporting or opposing, 271 voting, 271 –272

public employees civil service employees, 262, 264, 265 collective bargain rights, 264 Constitutional protections and, 263–264 educational employees, 263 exercise of protected rights, for, 270–271 overview of, 258, 262 probationary, 257, 265, 270–271 special laws for, 262–265

public policy, in violation of, 258–259 rights of employees, 259–268 Unemployment Insurance issues, 287 unlawful employer actions, short of unlawful discharge or discipline

abortion-related rights of healthcare workers, violation of, 275 harassment, based on personal characteristics, 274–275 humiliation, violence, fraud, or defamation, 274 retaliatory immigration-related actions, 275

unlawful grounds for benefit protections, exercise of, (See Benefits) discrimination and, (See Discrimination and harassment) hiring, exercise of rights during, (See Hiring rights) investigations, exercise of rights concerning, (See Investigations) legal or constitutional rights, exercise of, 269–273 military service and, 269 police reports, (See Police records) public employees and, 270–271 qualified workers under Service Contracts Act, non displacement of, 274 right to organize, exercise of, (See Organizing)

17

safety and health protections, exercise of, (See Safety, health, and sanitation) wage and hour rights, exercise of, (See Wages and hours) whistleblower protections, exercise of, (See Whistleblowers) workers' compensation rights, exercise of, (See Workers' compensation) workfare worker, displacement by, 273

vacation time, right to accrued, 262 violence as discipline, 274 wages, right to prompt receipt of, 261–262 workfare employees, replacement by, 273 wrongful discharge, 15, 35, 253–254, 258–259, 274, 283, 306

Discipline. See Discharge and disciplinary action Discrimination and harassment

ADA, under (See Americans with Disabilities Act (ADA)) ADEA (Age Discrimination in Employment Act), under (See Age Discrimination in Employment Act (ADEA)) AIDS/HIV screening, based on, 28 bankruptcy, based on, 27–28 bona fide occupational qualification (BFOQ) defense, 21, 23, 25–27, 30, 191–192 business necessity defense, 25–27, 177, 184, 191–192 CFRA (California Family Rights Act), under, 148–149 Civil Rights Act of 1866, under, 174 Civil Rights Act of 1871, under, 174 complaints or charges

DFEH, with (See Department of Fair Employment and Housing (DFEH)) EEOC, with (See Equal Employment Opportunity Commission, United States (EEOC)) exhausting administrative remedies, 192 government employers, against, 193–194 lawsuit and, 194–195 OFCCP, with, 194 process of filing, 193 right to sue letters, 193 time limits, 193 VETS, with, 194

Constitutional provisions prohibiting California Constitution, 170 "strict scrutiny" test under, 170 United States Constitution, 170

customer preferences, based on, 27 defenses, employer's, 191–192 disability and religion disability, employer's duty to provide reasonable accommodations, 178–182

religion, employer's duty to provide reasonable accommodations, 182–183 disabled persons, against (See Disability discrimination) disparate impact discrimination, 26, 174, 177 disparate treatment discrimination, 174, 176–177, 280 EPA (Equal Pay Act of 1963), under, 172 exceptions to legal coverage against, and defenses to claims of

employer defenses to discrimination claims, 191–192 exceptions to coverage under discrimination laws, 191

Executive Order 11246, under, 172–173, 174, 193

18

family leave and, 171 federal contractors, by, 172 FEHA, under (See Fair Employment and Housing Act (FEHA)) gender, based on (See Gender discrimination) general overview of illegal discrimination

disparate treatment discrimination, 174, 176–177 disparate/adverse impact discrimination, 177 pattern-and-practice discrimination, 177

harassment and hostile work environment (See Harassment and hostile work environment) independent contractors and, 184, 185, 191 intentional discrimination, 177 investigations, preparing for, 195 laws prohibiting

California, 171–172 enforcement of, Federal, 172–174 overview of, 170–171 table of, 174–175

military service and, 171, 173, 174, 191, 193, 194 Native Americans, exceptions, 173 overview of, 169–170 pattern-and-practice discrimination, 177 pregnancy, based on, 152,184–185 Rehabilitation Act of 1973, under, 173–174, 191, 193 religion, based on, 178, 182–183 religious organizations, exceptions, 191 retaliation

enforcement, 190 laws regarding, 188–189 proving, 189

sex, based on unequal pay and, 184 pregnancy discrimination, 184–185

significant risk of injury or disease, based on, 27 table of laws, 174–175 Title VII, under (See Title VII) VEVRAA, under, 173, 174, 193

Disease, discrimination based on significant risk of, 27 Disparate impact discrimination, 26, 174, 177 Disparate treatment discrimination, 174, 176–177 Diversion programs, 23, 38, 57 Division of Labor Standards Enforcement (DLSE). See Labor Standards Enforcement (DLSE), California Division of Division of Occupational Safety and Health, California (DOSH)

overview of, 197–198 safety, health and sanitation violations, claims for, 198–212, 213 tools and uniforms, 97–98

Documenting claims, 9–10 DOL (Department of Labor, United States)

COBRA issues, 119 Employee Benefits Security Administration, 119

19

Employment and Training Administration, 28 ERISA claims, 112 family leave violations, complaints regarding, 148 USERRA and, 118 Wage and Hour Division, complaints to (See Wage and Hour Division, complaints to) wage releases or waivers, 102 whistleblowers, claims by

overview of, 281, 284 retaliation claims, 281, 282, 284, 288, 290

Domestic worker Bill of Rights for, 70 IWC Orders, 69–70 minimum wage, 70, 76 NLRA, exclusion from coverage, 243 overtime pay, 70, 76 paycheck regulations, 98 SDI coverage, 126 Unemployment Insurance exclusion, 156 workers’ compensation, exclusion from coverage, 217

Domestic Worker Bill of Rights, 70 Domestic partners, 22, 121, 124, 133, 134, 138, 153–155, 159, 270 DOSH (Division of Occupational Safety and Health, California)

overview of, 197–198 safety, health and sanitation violations, claims for, 198–212, 213 tools and uniforms, 97–98

Dress standards, 30 Drinking water, duty to provide, 209–210 Drug testing

ADA (Americans with Disabilities Act) and, 44–45 applicants and , 32, 43–44 California Drug-Free Workplace Act of 1990, regarding, 42 Fourth Amendment and, 44 methods of, 43 overview of, 42–43 rules regarding, 43–45 searches and seizures, as, 44

Drug treatment records, protection of, 303 Duty of fair representation, Union's, 244, 251

E Economic strikes, 249 EDD (Employment Development Department, California)

bonds and, 28 Paid Family Leave and, 154 SDI (See State Disability Insurance (SDI)) Unemployment Insurance (See Unemployment Insurance (UI)) veterans, educational and career assistance and, 167 whistleblowers and, 287 workers’ compensation claim forms, 232–233 workers’ compensation violations, 229

20

Education employees discharge or discipline, special laws for, 263 family leave, 138 personnel files, right to inspect, 262, 266, 296 whistleblower protections, 285

Educational Employment Relations Act (EERA), 244, 245, 248, 251 EEOC (Equal Employment Opportunity Commission, United States)

charges with applicants, by, 20–24, 27–28, 45 disability discrimination, for, 180 discharge or discipline, federal civil service employees, regarding, 265 discrimination, for, 189–190, 265 drug testing, regarding, 45 equal pay violations, for, 86 filing, 192–193 harassment, for, 186, 188, 189–190 hiring, for discrimination in, 27–28 investigations of, 195 overview of, 192–193 retaliation, for, 189–190, 284 whistleblowers, retaliation claims by, 284

investigations by, 195 obtaining information from, 173–174

EERA (Educational Employment Relations Act), 244, 245, 248, 251 Elderly persons

abuse, whistleblowers and, 286, 287–288 domestic workers and, 69–70, 126 residential facilities, access to police records by, 60–61

Election officers, discharge or discipline for serving as, 253, 273 Electronic invasion of privacy

California law, 40 federal law, 41

Electronic surveillance, 40 Email surveillance, 41 Employee Benefits Security Administration, 119, 284 Employee Polygraph Protection Act, 39 Employee Retirement Income Security Act of 1974 (ERISA)

employer's responsibilities under, 111–112, 117 pension benefits under, 111 plans, funding under, 111 plans, minimum standards under, 111 records retention under, 301 retaliation claims under, 284 severance pay, claims under, 106 trust funds under, 77, 90 vacation leave, payment of accrued upon separation, under, 119 welfare benefits under, 111 workers’ compensation exemption, 111

Employer healthcare plans. See Healthcare plans Employment agencies, rights regarding, 18

21

Employment and Training Administration, Federal Bonding Program, 28 Employment counseling services, rights regarding, 19 Employment Development Department (EDD)

bonds and, 28 Paid Family Leave and, 154 SDI (See State Disability Insurance (SDI)) Unemployment Insurance (See Unemployment Insurance (UI)) veterans, educational and career assistance and, 167 whistleblowers and, 287 workers’ compensation claim forms from, 232–233 workers’ compensation violations and, 229

Employment Training Panel, 163 Enforcement agencies. See specific agency English fluency requirement, 30 Entertainment industry

meal periods, 92 paycheck regulations, 99

Environmental protection, whistleblowers and, 288 Environmental Protection Agency, United States (EPA), 202, 207 EPA (Equal Pay Act of 1963), sex discrimination under, 172, 174 Equal Employment Opportunity Commission, United States (EEOC)

charges with applicants, by, 20–24, 27–28, 45 disability discrimination, for, 180 discharge or discipline, federal civil service employees, regarding, 265 discrimination, for, 189–190, 265 drug testing, regarding, 45 equal pay violations, for, 86 filing, 192–193 harassment, for, 186, 188, 189–190 hiring, for discrimination in, 27–28 investigations of, 195 overview of, 192–193 retaliation, for, 189–190, 284 whistleblowers, retaliation claims by, 284

investigations by, 195 obtaining information from, 173–174

Equal Pay Act of 1963 (EPA), sex discrimination under, 172, 174 Equal pay for equal work, right to, 86 ERISA (Employee Retirement Income Security Act of 1974)

employer's responsibilities under, 111–112, 117 pension benefits under, 111 plans, funding under, 111 plans, minimum standards under, 111 records retention under, 301 retaliation claims under, 284 severance pay, claims under, 106 trust funds under, 77, 90 vacation leave, payment of accrued upon separation, under, 119 welfare benefits under, 111

22

workers’ compensation exemption, 111 Executive exemption to IWC orders, 73 Executive Order 11246, 172–173, 174, 193 Exercise of discretion and independent judgment exemption to IWC orders, 73 Exercising your rights

learning about workers rights, administrative agencies, obtaining information for, 8 Industrial Welfare Commission Orders (IWC), obtaining for, 8 Internet, obtaining information for, 8 law library, obtaining information for, 8 using this book for, 7–8

Ex-felon status, rights regarding, 59 Exhausting administrative remedies

CFRA, before filing lawsuit under, 148 discharge or discipline, 260–261 discrimination complaints, 192 whistleblowers, retaliation claims by, 282–283

Expense reimbursement cell phone usage, 98 form of, 97 legal expenses, 97 losses, for, 97 necessary expenses, 96 protective apparel, costs of, 98 tools, costs of, 97–98 uniforms, costs of, 98 vehicle expenses, 97 whistleblowers, lost wages and interest, 282 Worker's Compensation, transportation for medical treatment, 225–227

Express contracts, 256–257

F Fair Credit Reporting Act (FCRA), 46, 48, 51, 53, 266 Fair Employment and Housing Act (FEHA)

CFRA, part of, 130 disability discrimination under, 178–182 discharge and disciplinary action under, 269 discrimination, illegal, under, 171–172, 174 disparate impact discrimination under, 171 harassment under, 171, 185–188 hostile work environment under, 185–188 leave, discrimination under CFRA, filing complaint with, 148–149 obesity, can be disability under, 30, 179 overview of, 171–172 pregnancy leave under, 130–131 records, retention duration under, 300 religious organizations, exemptions under, 191, 275 retaliation under, 171, 189 small employer exemptions under, 21, 22, 23, 171, 175, 178

23

whistleblower protections under, 284 Fair Labor Standards Act

Domestic Worker Bill of Rights, 70 "economic reality test", wage claims under, 14 employers covered under, 175 independent contractor determination, under, 14 minimum wage under, 68, 70 overtime under, 68, 70, 76 public employees, minimum wage and overtime covered by, 68 records, retention duration under, 300, 301 whistleblowers, retaliation claims under, 284

Fair representation, Union's duty of, 244, 251 False Claims Act, California, 284 False Claims Act, federal, 270, 284 Family and Medical Leave Act (FMLA). See Family leave Family leave

amount allowed amount used, 136 armed forces, family members of, 137–138 generally, 136 instructional employees, 138 leave year, determining, 136–137 married couples, couples, and domestic partners, 138 minimum amounts, 139 other types of family leave, effect on, 138 parental leave, 138 twelve workweeks, 136

benefits during leave, 146–147 bonding leaves, 139 California law contrasted with federal law, 110, 131–132, 133, 137, 149 covered employers, 132 definitions of reasons for leave

generally, 134–135 providing care to family members, 135 qualifying exigency, 136, 145–146 serious health condition, 134–135 serious injury or illness of a covered service member or veteran, 135

discrimination and, 171 eligible employees, 132 employer notice requirements regarding

CFRA, under, 140–142 designation, 141–142 eligibility, 141 employee rights and responsibilities, 131, 141 FMLA, under, 140–142

family members for purposes of, 133–134 federal law contrasted with California law, 110, 131–132, 133, 137, 149 holidays, effect of, 147 instructional employees, special rules under FMLA regarding, 138

24

intermittent leave bonding leave, 139 military service, effect of, 139 serious health condition, for, 139

kin care, 124 married couples, couples, and domestic partners, 138 medical certifications

armed forces member, serious illness or injury, 144–145 initial certification, 142–143 qualifying exigency, armed forces family member, 145–146 recertification, 143–144 second and third medical opinions, 143

military service and impact of, 132–133 family members of those serving, 137–138 federal law contrasted with California law, 137 intermittent leaves, 139 next of kin, 134 qualifying exigencies, 133, 136, 137, 139, 145–146 serious illness or injury, 144–145

minimum amounts, 139 next of kin of members of military, 134 overview of, 130–131 Paid Family Leave Insurance Program (See Paid Family Leave Insurance Program) paid leave, use of

CFRA, under, 153 FMLA, under, 153

parental leave, 138 Pregnancy Disability Leave (PDL) Act, California, interaction with, 149–150, 152–155 providing care to family members, for, 135 qualified reasons for taking, 133, 134–136 qualifying exigencies, 133, 136, 137, 139, 145–146 reinstatement, right to

overview of, 147 refusal to reinstate, 147–148

requests for form of, 140 included information, 140 timing of, 139–140

retaliation claims, 284 serious health condition, for

generally, 134–135 initial certification, 142–143 intermittent leaves, 139 military service and, 144–145 recertification, 143–144 second and third medical opinions, 143

spousal leave, 134 violations of, protections against

25

CFRA, under, 148–149 FMLA, under, 148

whistleblower protections, 284 Family members

family leave, for purposes of, 133–134 IWC orders, exemption from, 69–70 NLRA, exclusion from coverage, 243 Unemployment Insurance exclusion, 157

Family support, unlawful questions of applicants, 24 Family Temporary Disability. See Paid Family Leave Insurance Program Farm workers

Agricultural Labor Relations Act, 244 IWC Order covering, 67 lead hazard standard for, 206 meal periods, 91–92 NLRA, exclusion from coverage, 243 overtime, 76 paycheck regulations, 98 personnel file, entitled to copy of, 295 pesticide restrictions, applicability to, 211 piece-rate work, 82 seventh workday, pay for, 87

FCRA (Fair Credit Reporting Act), 46, 48, 51, 53, 266 Federal Aviation Administration, 259 Federal Bonding Program. See Bonds Federal contractors, discrimination and, 172–173, 175, 189, 190, 194 Federal employees

discharge or discipline, 265 EEOC, discrimination charge and, 188 exemption from state laws, 14, 39, 133, 138, 170, 189, 278 FMLA and, 131, 149, 153 IWC orders, exemption from, 69–70 NLRA, exclusion from coverage, 243 OSHA claim and, 198–199, 212 Unemployment Insurance exclusion, 157 workers’ compensation, exclusion from coverage, 218

Federal Employees’ Compensation Act, 218, 284 Federal False Claims Act, 270, 284 Federal Family and Medical Leave Act (FMLA). See Family leave Federal Labor Relations Authority, 243 Federal Trade Commission (FTC), 49, 50–51, 53, 312–313 Fed-OSHA. See OSHA (Occupational Safety and Health Administration) FEHA (Fair Employment and Housing Act)

CFRA, part of, 130 disability discrimination under, 178–182 discharge and disciplinary action under, 269 discrimination, illegal, under, 171–172, 174 disparate impact discrimination under, 171 harassment under, 171, 185–188 hostile work environment under, 185–188

26

leave, discrimination under CFRA, filing complaint with, 148–149 obesity, can be disability under, 30, 179 overview of, 171–172 pregnancy leave under, 130–131 records, retention duration under, 300 religious organizations, exemptions under, 191, 275 retaliation under, 171, 189 small employer exemptions under, 21, 22, 23, 171, 175, 178 whistleblower protections under, 284

Fidelity bonds. See Bonds Fifth Amendment, 170, 263 Financial institutions, access to police records by, 63 Fines and penalties

deductions from wages, forbidden, 94 discharge or discipline violations, 267, 272 ERISA, under, 112 health records violations, 303 hiring rights, violations, 28, 29, 30 identity theft, 311 investigations, employer violations, 40, 41, 53, 56–59 PAGA, claims for civil penalties under, 107 personnel file violations, 262, 295, 298, 299 safety, health, and sanitation violations, 209, 211 vacation time violations, 119 Wage Theft Prevention Act, under, 103 whistleblower violations, 284, 285, 286, 288, 289, 290

Fingerprints, employers requiring, 38–39 First aid, duty to provide, 207–208 First Amendment, 247, 249, 270, 279 Fixed-term contracts, 257–258 FMLA (Family and Medical Leave Act) See Family leave Forced patronage

applicants, requiring from, 29, 95 employees, requiring from, 29, 95

Form DE 2501, application for SDI, 127, 128 Fourteenth Amendment, 170, 249, 263 Fourth Amendment, drug -testing requirement and, 44 Franchise Tax Board

claims with, 14 security freezes and, 48

Fraud Computer Fraud and Abuse Act, 42 corporate, Sarbanes-Oxley Act of 2002, protections for reporting, 269, 290 discipline, by use of, 274 identity theft as, 47, 311, 313 whistleblowers and, 290

Free speech discharge or discipline for exercise of, 258–259, 271 First Amendment rights, 247, 249, 279

27

harassment, not protected as, 186 picketing and, 247–248 public employees and, 270, 271, 279 strikes and, 249–250 whistleblowers and, 279

FTC (Federal Trade Commission), 49, 50–51, 53, 312–313 Full payment of wages, right to, 85

G Garnishments, 95–96 Gender discrimination

applicants, unlawful questions, 20, 21–22 disparate treatment, 176 harassment, 274 hiring and promotions, during, 25, 26, 27, 30, 169 laws prohibiting, 171 pregnancy, based on, 152 sexual stereotyping, 184 unequal pay, 185

Genetic Information Nondiscrimination Act (GINA), 311 Genetic screening, 27, 306 Genetic Information Nondiscrimination Act (GINA), 311 Good cause requirement, discharge or discipline. See Just cause requirement, discharge or discipline Government agencies

access to police records by, 62–63 obtaining information about workers' rights from, 8

Government committees, right to appear before, 279 Government files, right to inspect and correct, 54–55 Grievance procedure

arbitration and, 256, 283 harassment, 185, 188 health Insurance plan, requirement for, 117 overtime pay, 70 retaliation challenge, 281 safety, health, and sanitation violations, 212 time period for filing, 10, 254, 259 time spent during, 85 union contract , under, 10, 12–13, 246 union unfair labor practice, 243, 251 wages, right to full payment, 85

Grooming standards, 30

H Harassment and hostile work environment

anti-harassment law, California's, 185–186 complaints, filing regarding, 192–194 documenting, 9 enforcement, 188

28

FEHA, prohibits, 171 overview of, 185–186 personal characteristics, based on, 274–275 pregnant women and, 184 proving, 186 reporting, 186–187 retaliation when reporting, 188–190 sexual harassment, quid pro quo, 186

Hazardous substances access to information, 198, 202 Hazardous Substances Information and Training Act, 288 lead, duty to protect against, 205–206 monitoring exposure to, 203 MSDS (Material Safety Data Sheet), 202 notification, 202 OSHA and, 211, 301 "red tag", duty to abide by Cal-OSHA, 211 whistleblowers, claims by, 288 written records, 202

Hazardous Substances Information and Training Act, 288 Health. See Safety, health, and sanitation Health Care Services, California Department of

HIPP Program, 118 security freezes and, 48

Healthcare employees abortion-related rights, violation of, 275 meal periods, 92 whistleblower protections, 286 workplace violence and, 211

Healthcare facilities access to police records by

drugs, employees with access to, 59–60 patients, employees with access to, 59

safety, health, and sanitation at, 206, 207, 208–209 whistleblowers and, 279, 286

Healthcare plans Affordable Care Act (See Affordable Care Act (ACA) of 2010 Cal-COBRA, 118 COBRA coverage, 117–118 Comprehensive AIDS Resources Emergency (CARE)/HIPP Program, 118 discharge or discipline issues, 260 employer

continuation of coverage under, 117–119 enforcement of, 117 pre-existing conditions, coverage by, 117 traditional health benefits of, 117

Health Insurance Premium Payment (HIPP) Program, 118 HMOs, 117 military service, effect of, 118 PPOs, 117

29

Healthcare records applicants, rights of

access to records, right to limit, 31 drug testing, 32 medical exam, right to an unbiased, 30–31 medical release, right to refuse to sign, 31

California law, under AIDS/HIV testing results, 306 confidential information, employer's duty to protect, 304–306 developmental disability, 305 drug and alcohol addiction treatment, 305 genetic testing results, 306 mental health and psychiatric records, 305 overview of, 302 release without consent prohibited, 303–304 right to inspect, 302–303

HIPAA, under appeal from denial of access, 307 corrections, right to make, 307 court or administrative order, disclosure pursuant to, 310 disclosures, right to receive an accounting of, 307–308 disclosures, right to request restrictions on, 308 information not protected under, 308, 309 information protected under, 308–309 inspect, right to, 307 law enforcement purposes, disclosure for, 310 miscellaneous rules, 310–311 notice of rights, 307 organizations covered by, 306 overview of, 306 permissible purposes and recipients, 308 privacy of, 311 protected Information under, 306–307 public health, disclosure for purposes of, 309 rights, individuals, under, 307–308 subpoena, disclosure pursuant to, 310 workers’ compensation, disclosure for purposes of, 309 written authorizations, 309

overview of, 302 right to limit access to, 31 table of requirements for retention of, 301

Health Insurance Portability and Accountability Act (HIPAA), healthcare records under. See Healthcare records Health Insurance Premium Payment (HIPP) Program, 118 Health maintenance organizations (HMOs), enforcing terms of, 117 Healthy Workplaces, Healthy Families Act of 2014, 90,120–124, 270 Heat illness, duty to prevent, 210–211 HEERA (Higher Education Employer–Employee Relations Act ), 244 Higher Education Employer–Employee Relations Act (HEERA), 244 HIPAA (Health Insurance Portability and Accountability Act), healthcare records under. See Healthcare records HIPP (Health Insurance Premium Payment Program), 118

30

Hiring rights applicants (See Applicants) applying for a job, rights before

employment agencies, requirements of, 18 employment counseling services, requirements of, 19 job listing services, requirements of, 19 nurses' registries, requirements of, 19–20 overview of, 18

applying for a job, rights when application, right to a copy of the, 20 drivers, questions permitted of commercial, 25 military service, questions about, 25 questions employers may not ask, 20–25

discrimination (See Discrimination) health information during hiring, rights regarding

drug testing and, 32 medical exam, right to an unbiased, 30–31 medical records, right to limit access to, 31 medical release, right to refuse to sign, 31 overview of, 30

immigration status deferred action childhood arrivals, 34 employment eligibility, verifying, 32 e-verify, 33–34 immigration laws, workplace enforcement of, 33 social security number discrepancies, 34 T visas, 35 U visas, 35 victims of crimes, special visas for, 35

overview of, 17 requirements during hiring,

English fluency, 30 fidelity bond, requiring an applicant to pay for, 28 grooming, dress, and appearance standards, 30 invest in the employer's business, requiring applicants or employees to, 29 lie detector test, requiring applicants to take, 30 move, inducing job applicants and employees by misrepresenting job conditions to, 29 patronize the employer's business, requiring applicants or employees to, 29 photographs, requirements regarding, 29–30 polygraph test, requiring applicants to take, 30 public employer, requiring applicants or employees to reside within jurisdiction of, 29

social media and personal passwords, 32 unlawful discrimination during hiring

aids screening, discrimination based on, 28 bankruptcy, discrimination based on, 27–28 "bona fide occupational qualification" (BFOQ) and "business necessity", 25–27 customer preferences, discrimination based on, 27 significant risk of injury or disease, discrimination based on, 27

HIV (human immunodeficiency virus)

31

Comprehensive AIDS Resources Emergency (CARE)/HIPP Program, 118 healthcare records, special protection of, 38, 294, 299, 302, 305 Medi-Cal coverage for, 116 screening, discrimination based on, 28 testing, confidentiality of, 306

HMOs (Health maintenance organizations), enforcing terms of, 117 Holidays

family leave, effect on, 147 regular rate of pay, calculation of and, 77 Unemployment Insurance, effect of payments on, 163

Hostile work environment. See Harassment and hostile work environment "Hours worked", payment for all

changing, into and out of required uniforms, 84 civic duties

jury duty, 90 testifying, pursuant to subpoena, 91 voting, 90

civic or charitable functions, at employer's request, 85 grievance process, 85 meal periods, 91–93 meetings, 85 “on-call” or “stand-by” time

away from employer’s premises, 83 at employer’s premises, 83

overview, 82–83 piece-rate work, rest breaks and recovery periods, 93 preparatory or concluding tasks, 84 recovery periods, 93 rest breaks, 93 sleep time, 84–85 training programs, 85 travel time, 83–84 uniforms, changing time, 84

Humiliation as discipline, 274

I ICE (Immigration and Customs Enforcement, U. S.), 33 Identity theft

consumer credit reports and blocking information, 47 security alert, 47 security freeze, 47–48

contacting creditors, 313 defined, 311 employee actions, recommended upon, 313 employer obligations, 312 notification upon breach, 312 obtaining advice from FTC, 312 overview of, 311 reasonable security, duty of, 312

32

reporting, 313 safeguards, 312 rights, in Case of, 47–48 Social Security Numbers and, 312

Illegal activity, right to refuse to participate in, 279 Immigrant workers

employment eligibility, verification form Ι-9, for, 32–33 E-Verify for, 33–34 Immigration and Customs Enforcement (ICE) and, 33 immigration laws, workplace enforcement of, 33 IWC orders, applicability of, 68 limits to benefits for, 15 rights dependent on status of, 15 undocumented (See Undocumented Workers) wage theft, protections for, 103

Immigration applicants, unlawful questions, 21 undocumented workers (See Undocumented workers)

Immigration and Customs Enforcement (ICE), U. S., 33 Implied contracts, 256–257 Independent contractors

discrimination, exceptions, 191 harassment, protection from, 185 Industrial Relations, California Department of, information for, 14 NLRA, exclusion from coverage, 243 overview, 13 remedies for employees wrongfully classified as, 14 SDI, exclusion from coverage, 13 tax implications as, 13–14 tests for status as, 13–14 willful misclassification of, 13 workers’ compensation

coverage by, 218 employees wrongfully classified as, 14 exemption from coverage, 13

Industrial Accidents, Division of, 301, 305 Industrial Relations (DIR), California Department of

independent contractors, information from, 14 information, obtaining from, 8, 239 injuries, employer's duty to report to, 201–202 minors, work times and hours chart available from, 71 prevailing wage determinations, 81 workers’ compensation stop orders, 237

Industrial Welfare Commission (IWC) orders cheerleaders, applicability to, 69 collective bargaining agreements, applicability to employees covered by, 70 commission sales exemption, 69 determining which order applies, 67 domestic workers, applicability to, 69–70

33

exempt employees, 67 interns, applicability to, 68 minors, employees under 18 years old, applicability to, 71–72 obtaining, 8 pamphlet ("Which IWC Order"), 67 personal attendants, applicability to, 69 "professional", "hourly paid" exemption, 72 public employees, applicability to, 68 sales commission employees, applicability to, 69 taxi drivers, applicability to, 68–69 temporary workers, applicability to, 71 tipped workers, applicability to, 70–71 truck drivers, applicability to, 68–69 undocumented workers, applicability to,68 volunteers, applicability to, 68 "Which IWC Order" pamphlet, 67 white collar exemptions

administrative exemption, 74 executive exemption, 73–74 exercise of discretion and independent judgment requirement, 73 primarily engaged in exempt work requirement, 73 "professional" exemption, 74 salary basis requirement, 72

Information, obtaining administrative agencies, from, 8 disability discrimination, regarding, 178, 180 EEOC, from, 173–174 identity theft, regarding, 281, 312 Industrial Welfare Commission (IWC) orders, 8 Internet, from, 8 law library, from, 8 workers’ compensation, regarding, 239

Informational picketing, 248 Injury, discrimination based on significant risk of, 27 Injury and Illness Prevention Programs (IIPP), 200–201 Inspection. See specific topic Institutionalized person, whistleblowers and, 287 Instructional employees

discharge or discipline, special laws for, 263 family leave, 138 personnel files, right to inspect, 262, 266, 296 whistleblower protections, 285

Insurance Commissioner, petitions with, 56 Insurance, California Department of, 117, 118, 305 Insurance files, right to see and correct, 55–56 "Insurance support organizations", 55 Intentional discrimination, 177 Interior, U. S. Department of the, 288 Intermittent family leave. See Family leave

34

Intermittent work stoppages, 249–250 Internal Revenue Service (IRS)

claims with, 14 mileage rate, 97

Internet, obtaining information from, 8 Internet resources

Contractors License Board (CSLB), California State, website, 14 credit reports for employer background checks, privacy rights, 50 Department of Labor, U.S., website, 8 Department of Transportation, U.S., list of transportation agencies requiring drug testing, 42 Equal Employment Opportunity Commission, U.S., website, 20 Fair Employment and Housing, California Department of, website, 20 Federal Bonding Program, U.S. Department of Labor, website, 28 Federal Trade Commission, U.S., article on disputing credit report errors, 49 Health Insurance Portability and Accountability Act (HIPAA), U.S., websites, 31 independent contractor protections, websites, 14 Industrial Relations, California Department of, website, 14 Industrial Welfare Commission (IWC) Orders from, 8 Industrial Welfare Commission, California, website, information, obtaining from, 8 Labor Commissioner, California, website, 8 law libraries, by county lists, 8 National Labor Relations Board, U.S., website, 8 Personnel Board, California State, right to inspect and correct files, 54 regulations, California, website, 8 small claims court, self-help guides from, 11 statutes, California, website, 8 undocumented workers, rights and protections, website, 15 workers' rights, information from, 8

Interns, applicability of IWC orders to, 68 Invasion of Privacy Act, California, 40 Invasion of privacy, 40, 41, 42, 50, 52, 56, 266 Investigations

DFEH, by, 195 EEOC, by, 195 employers, by (See Investigations and police records) Homeland Security, by, 33

Investigations and police records confidential information, records employers cannot obtain, 38 consumer credit reports and investigative consumer reports

overview of, 45–46 rights of consumers and duties of reporting agencies, 46–50 rights of employees regarding reports for employment purposes, 50–53

discharge and disciplinary based on inspection of personnel records, right of, 266 notice of investigation, right to, 265–266 rights regarding, 265–268

email surveillance, 41 employer investigations

35

drug testing and, 42 email surveillance and, 41 employee photograph or fingerprint and, 38–39 lie detector tests and, 39–40 polygraph tests and, 39–40 records employers cannot obtain and, 38 secretly recorded conversations and, 40–41 text messages, Twitter, and beyond, 41–42 video or other surveillance In certain work areas and, 42 voice stress analyses and voice prints and, 40

fingerprints, requiring, 38–39 insurance files, right to see and correct, 55–56 lie detector tests, requiring, 39–40 overview of, 37 photographs, requiring, 38–39 police and criminal investigations and records

applicants, unlawful questions, 23–24 arrests, rights regarding, 38, 58 banking institutions, access by, 63 community care facilities, access by, 60 consumer credit investigative agencies, disclosure by, 57 convictions, effect on jobs that require licensing or certification, 63 daycare facilities, access by, 60 employer's, limits on access to, 37, 56, 59–63 ex-felon, rights regarding, 59 expunged records, rights regarding, 58 government agencies, access by, 62–63 healthcare facilities, access by, 59 legal terms, definitions of, 57 limits on access to certain police records, 56–57 minors, access by agencies supervising or disciplining, 60 parole status, rights regarding, 59 prohibition against attempt to have employee or applicant obtain police record, 57–58 public utilities, access by, 62 residential eldercare facilities, access by, 60–61 residential facilities for developmentally disabled, access by, 61

polygraph tests, requiring, 39–40 public records (See Public records) right to inspect and correct government files

local government files, 54–55 state government files, 54 union's right to inspect files on employee's behalf, 55

text message surveillance, 41–42 video surveillance, 42 voice stress analyses and voice prints, 40 wiretapping, 41

Investigative consumer reports files, information not to be included in, 50 inaccurate information, right to correct, 48–49

36

inspection, right of, 53 investigations conducted without use of investigative consumer reporting agency, 52 negative report, rights and duties, 53 notice, right to, 51–52, 53 obsolete information, right to remove, 50 overview of, 45–46

Investment in business, requiring from applicants, 29 IRS (Internal Revenue Service)

claims with, 14 mileage rate, 97

Itemized wage statements, 100–101 IWC orders. See Industrial Welfare Commission (IWC) orders

J Job listing services, rights regarding, 19 Judge, administrative law (ALJ), SDI, hearing before, 129 Judicial proceedings, right to appear in, 270, 279 Jury duty, wages for time spent in, 90 Just cause requirement, discharge or discipline

"at-will" workers, fired without, 253 collective bargaining agreements as source of, 255–256 express contracts as source of, 256–257 extentionextension of time to file, for, 128, 162, 163, 199 fixed-term contracts as source of, 257–258 implied contracts as source of, 256–257 overview of, 255–256 SDI, quitting, for, 125 Unemployment Insurance (UI), quitting for, 156, 157, 159–160

Justice Department, United States, Office of Civil Rights, 287

K Kickbacks, requiring from employees, 95 Kin care, 120–121, 124, 153

L Labor Commissioner, claims with

applicants, right to be informed about labor disputes, 250 authority of, 10–11, 104 Berman hearings, 104–105, 105–107 Bureau of Field Enforcement (BOFE), 104 deadlines for filing claims, 107 deciding whether to file, 103–104 discharge or discipline, regarding

investigations by employers, based on, 266 prompt receipt of wages, right to, 261 vacation time, right to accrued, 262

exchange of salary information, right of, 251

37

excluded claims arbitration agreements, mandatory, claims covered by, 12,106 collective bargaining agreements, claims covered by, 12, 105 minimum wage violations, liquidated damages claims, 107 PAGA, civil penalty claims under, 107 severance pay claims, 106 WARN Act, claims under, 106–107

functions of, 104 Healthy Workplaces, Healthy Families Act enforcement by, 123–124 information, obtaining from, 8 independent contractors, " willful misclassification" of, and, 13, 14 jurisdiction over, 104 nursing mothers, by, 152 Order, Decision or Award (ODA)

appeals from, 105 issuance of, 105

personnel file violations, for, 262, 266, 295, 297 polygraph tests, regarding, 39 Pregnancy Disability Leave Act enforcement, by,152 prevailing wage violations, for, 82 time requirements, 107 undocumented immigrant workers and, 15 union contracts, special wage and hour rules, and, 12–13 union insignia, regarding right to display, 250–251 wage and hour special rules under union contracts, and, 12–13 whistleblower violations, for

workers, specific types of, and, 286–287 violations, specific types of, and, 287–288 retaliation claims, 281–282, 284

workers’ compensation, regarding failure to be insured, 227, 237 rights of employees, lack of notice, 219 stop orders, 237

workplace postings, 122 Labor Department, United States (DOL)

COBRA issues, 119 Employee Benefits Security Administration, 119 Employment and Training Administration, Federal Bonding Program, 28 ERISA claims, 112 family leave violations, complaints regarding, 148 USERRA and, 118 Wage and Hour Division, complaints to (See Wage and Hour Division, U.S. Department of Labor, complaints to) whistleblowers, claims by

environmental safety violations, 288 land and sea transportation violations, 288, 290 retaliation claims, 281, 282, 284

Labor Management Reporting and Disclosure Act (LMRDA), 242 Labor Standards Enforcement (DLSE), California Division of

Berman Hearings and, 104

38

Bureau of Field Enforcement (BOFE), 104 charges with

equal pay violations, 86 personnel files, violations, 295 vacation time violations, 119

Industrial Welfare Commission (IWC) wage order pamphlet, 67 Labor Commissioner, claims with (See Labor Commissioner, claims with) Public Works Manual, 82 safety, health, and sanitation, violations, 199 retaliation, complaints with, 200 wage claims with, 14

Labor Statistics and Research, Division of (DLSR), 201 Labor unions. See Unions Landrum–Griffin Act, 242 Law enforcement, disclosure of healthcare records for purposes of, 310 Law enforcement officers

Age Discrimination in Employment Act (ADEA), exception to, 172 credit history and, 24 due process rights of, 265 personnel files, rights with regard to, 297–298 Pocket Guide to the Public Safety Officers Procedural Bill of Rights Act, 265 political activity by, 272 polygraph testing and, 39 Public Safety Officers Procedural Bill of Rights Act (POBRA), 287

Law libraries, obtaining information from, 8 Lead exposure, 205–206 Learners, minimum wage for, 75 Learning about workers' rights, 7 Legal expenses, reimbursement for, 97 Licenses

convictions, effect on jobs requiring, 63 health records violations, effect of, 303 veterans, waiver of fees for some, 167

Licensing and Certification Division, Department of Public Health, 61, 286, 287 Lie detector tests

applicants, 30 consent to, 39–40 investigations by employers, 39–40 refusal to take, right of, 39

Lighter work, transfer to during pregnancy, 150–151 Liquidated damages for minimum wage violations, statute of limitation, 107 Live-in employees, overtime for, 76 “Living wage” laws, 80 Loan repayment, deductions from wages for, 94 Local employees. See Public employees Lockouts, 18, 246, 249 Long-term care facilities, whistleblowers and, 286–287 Long-term disability, effect on SDI, 130 Los Angeles Metropolitan Transportation Authority Transit Employer-Employee Relations Act (TEERA), 244, 251 Loss, breakage or shortage, deductions from wages for, 94

39

Losses, expense reimbursement for, 97

M Makeup work time in lieu of overtime, 78–79 Managed Health Care, California Department of, 117, 305 Manufacturing industry, meal periods for, 92 Marine accidents and Injuries, whistleblowers and, 290 Marriage

applicants, unlawful questions, 22–23 family leave, 138

Material Safety Data Sheet (MSDS), 202 Meal periods, 91–93 Medi-Cal, 48, 115, 116,118 Medical certifications

family leave initial certification, 142–143 recertification, 143–144 second and third medical opinions, 143

pregnancy disability leave, 150 SDI and, 128

Medical examinations Americans with Disabilities Act (ADA) and, 44,180 applicants, rights of, 30–32, 180 deductions from wages for, 94 right to, 30–31

workers’ compensation, payment for, 204, 225–226, 228 Medical release, right to refuse to sign, 31 Medical services, duty to provide, 207–208 Medical treatment and workers’ compensation. See Workers’ compensation Medicare, 117, 118, 225, 230, 287, 306 Medicare Advantage plans, 117 Meetings, time spent during required, 85 Mental health records, protection of, 305 Merit Systems Protection Board, 243, 265 Meyers-Milias-Brown Act (MMBA), 244 Military service

discharge or discipline for, 269 discrimination and, 171, 173 family leave and

certification of serious injury or illness, 144–145 family members of those serving,133–134, 135 impact on,132–133 intermittent leaves, 139 qualifying exigencies, 136, 145–146 serious illness or injury, 135, 144–145

"military sexual trauma" (MST), counseling for, 167 preferences in employment for, 25, 191 questions regarding, 25 USERRA, discrimination under, and, 173, 174

40

Minimum wage agreements to work for less than, 75 amount, 75 apprentices, for, 75 collective bargaining agreements and, 75, 85, 105 learners, for, 75 liquidated damages for violations of, 75,107 "living wage" laws, 80 local laws and ordinances, 80 offsets against, 75 payment, form of, 75

Minors, agencies supervising or disciplining, access to police records, 60 Misrepresentation of pay, 85 Mitigation of damages, 274 Motor Carrier Act, 68 Motor vehicles

commercial vehicles, whistleblowers and, 288 expense reimbursement, 97

Motor Vehicles, Department of, 25 Municipal employees. See Public employees

N National Labor Relations Act (NLRA)

amendments to, 242–243 arbitration and, 12 concerted action, right of, 9, 245–246 exempt employees, 242, 243 intimidation, unlawful under, 25 overview of, 242–243 personnel files, union rights to access under, 295 retaliation protections under, 9, 189, 278 unfair labor practices, 243

National Labor Relations Board (NLRB) charges with, 243, 246, 251 class action waivers and, 12 concerted action, regarding, 8, 245–246 exchange of salary information, right of, 251 information, obtaining from, 8 NLRA, enforcement by, 243 picketing, regarding, 247–248 right to organize, regarding, 246 strikes, regarding, 249–250 unfair labor practices, enforcement by, 243 U visa certification and, 35

National Mediation Board, 243 National origin

applicants, unlawful questions, 21 discharge, not allowed, based on, 253 harassment, based on, 274

41

Native Americans discrimination, exceptions, 173, 191 NLRA, exclusion from coverage, 243 workers' compensation, exclusion from, 218

NDI (Non-industrial Disability Insurance), 125 Necessary expenses, reimbursement of, 96 Next of kin, armed forces members under FMLA, 134 NLRA (National Labor Relations Act)

amendments to, 242–243 arbitration and, 12 concerted action, right of, 9, 245–246 exempt employees, 242, 243 intimidation, unlawful under, 25 overview of, 242–243 personnel files, union rights to access under, 295 retaliation protections under, 9, 189, 278 unfair labor practices, 243

NLRB (National Labor Relations Board) charges with, 243, 246, 251 class action waivers and, 12 concerted action, regarding, 8, 245–246 exchange of salary information, right of, 251 information, obtaining from, 8 NLRA, enforcement by, 243 picketing, regarding, 247–248 right to organize, regarding, 246 strikes, regarding, 249–250 unfair labor practices, enforcement by, 243 U visa certification and, 35

Non-industrial Disability Insurance (NDI), 125 Nonprofit employees, SDI coverage of, 126 Norris–LaGuardia Act of 1932, 249 Notice. See specific topic Nuclear power stations

police records, access to, 62 whistleblowers and, 288

Nurses’ registries, rights regarding, 19–20 Nursing mothers, lactation accommodations, 152

O Obesity, disability under FEHA, 30 Obtaining information about workers' rights, 8 Occupational Safety and Health Administration (OSHA)

complaints, filing with, 213 injuries and Illnesses, duty to keep records, under, 201–202 overview of, 197–198 reports to, 202 retaliation claims with, 115, 198–200, 281, 284, 290 whistleblowers, claims by, 115, 281, 284, 288, 290

42

Occupational Safety and Health Division. See Cal-OSHA Occupational Safety and Health Standards Board, 207 Office of Civil Rights, 287 Office of Federal Contract Compliance Programs (OFCCP), 27, 172, 173, 190, 194 Office of the State Long-Term Care Ombudsman, 287 “On-call” time, 83 Organizational picketing, 248 Organizing

fair representation, union's duty of, 251 overview of, 241–242 rights of employees and their unions

collective bargaining, right to, 246 concerted action, right to engage in, 245–246 labor disputes, duty to tell job seekers about, 250 lockouts and, 249 organize workers, right to, 246 picketing and, 246–248 salary information, right to exchange with coworkers, 251 striker replacements and, 249 strikes and, 249–250 union insignia, right to control and display, 250–251 weapons of industrial conflict and, 246–250

statutes, governing introduction to, 242 labor laws, federal, 242–244 labor laws, state, 244–245

OSHA (Occupational Safety and Health Administration) complaints, filing with, 213 injuries and Illnesses, duty to keep records, under, 201–202 overview of, 197–198 reports to, 202 retaliation claims with, 115, 198–200, 281, 284, 290 whistleblowers, claims by, 115, 281, 284, 288, 290

Overpayment of wages, deductions from wages for, 94 Overtime

basic requirements of, 75–76 collective bargaining agreements, exception, 77 commission wages and, 86 compensatory time off (CTO) in lieu of

private sector employees, 78–79 public sector employees, 79

domestic workers, less protective standards for, 76 exceptions to

alternative workweek schedules, 76–77 collective bargaining agreements, 70, 77

exemptions to, specific, 68–74, 76 failure to pay, 11, 107, 115 Fair Labor Standards Act, under, 68, 70 farm workers, less protective standards for, 76

43

"hours worked" and, 83 independent contractors and, 14 live-in employees, less protective standards for, 76 makeup work time in lieu of, 78 public sector employees and, 68 regular rate of pay, determining, 77–78 right to, 66 undocumented workers and, 15, 68

P PAGA (Private Attorneys General Act)

arbitration and, 106 wage claims under excluded from Labor Commissioner jurisdiction, 107 whistleblowers and, 284

Paid Family Leave Insurance Program applications for, 154 benefits under, 155 duration of, 154–155 eligibility for, 154 overview of, 153–154 SDI, effect on, 126 unavailability of benefits, 155 vacation time, exhaustion of, 154 waiting period, 155

Parental leave, 138 Parolee status, protection of, 59 Part-time employees, Unemployment Insurance, 161 Patient Protection and Affordable Care Act (ACA) of 2010, See Affordable Care Act (ACA) of 2010 Pattern-and-practice discrimination, 177 Paycheck regulations

cash or negotiable check, payment by, 101–102 itemized wage statements, 100–101 late payment penalties, 99–100 payment in full” checks, 102 timing requirements

exceptions, 99 final paychecks, 99 regular paychecks, 98–99

undisputed wages, payment of, 102 wage releases or waivers, unlawful, 102

“Payment in full” checks, 102 PDL Act. See Family leave Peace officers. See Law enforcement officers Penalties

ACA employer mandate, 113–115, 116 individual mandate, 113

credit report violations, 51, 53 deductions from wages, 94–95 eavesdropping, unauthorized, 41

44

healthcare record violations, 306, 311 independent contractors, willful misclassification, 13, 14 PAGA, claims for civil, under, 107 personnel file violations, 295, 298 police records violations, 57, 58 sick leave and kin care violations, 123–124 vacation time violations, 119 wages, late payment, 99–100, 105, 261 whistleblower violations, 282, 284, 287, 289, 290 wiretapping, unauthorized, 41 workers' compensation, 230–231, 238–239

Pension plans California Public Employees' Pension Reform Act of 2013 (PEPRA), 112–113 deductions from wages for, 93–94 disability, veterans, 165 discharge or discipline, issues upon, 260 ERISA, benefits under, 111–112 ERISA, severance pay under and, 106 payments to, in calculating regular rate of pay, 77 records, retention duration for, 300, 301 Unemployment Insurance, effect of payments on, 163

PEPRA (California Public Employees' Pension Reform Act of 2013), 112–113 PERB (Public Employment Relations Board)

complaints to concerted action, regarding, 246, 265 discharge or discipline, 264 union's duty of fair representation, 251

information, obtaining from, 265 laws administered by, 244–245 picketing and, 248

Performance evaluations, access to, 54 Permissible Exposure Limit (PEL) for airborne lead, 206 Personal attendants, applicability of IWC orders to, 69 Personal characteristics, harassment based on, 274–275 Personnel files

chart of retention durations of, 300–301 discharge or discipline and, 259, 262 Constitutional privacy protections, 294, 298 employer duty to maintain, 298 overview of, 294 privacy protections, 298 right to see

discharge or discipline and, 259, 262 educational employees, 296–297 overview of, 294–295 peace officers, 297–298 Privacy Act of 1974, under, 295–296 public employees, 295–298 unions, 55, 295

social security number, privacy regarding, 299, 302

45

Pesticide restrictions, 211 Photographs

applicants rights regarding, 29–30 consent for use, by employees of, 30 costs of, 29 investigations by employers, 38–39

Picketing defined, 246, 247 First Amendment and, 247 government employees, 247 informational picketing, 248 organizational picketing, 248 public places, in, 248 recognitional picketing, 248 rights and restrictions, 247–248

Police officers. See Law enforcement officers Police records

applicants, unlawful questions, 23–24 arrests, rights regarding, 38, 58 banking institutions, access by, 63 community care facilities, access by, 60 consumer credit investigative agencies, disclosure by, 57 convictions, effect on jobs that require licensing or certification, 63 daycare facilities, access by, 60 employer's, limits on access to, 37, 56, 59–63 ex-felon, rights regarding, 59 expunged records, rights regarding, 58 government agencies, access by, 62–63 healthcare facilities, access by

drugs, employees with access to, 59–60 patients, employees with access to, 59

legal terms, definitions of, 57 limits on access to certain police records, 56–57 minors, access by agencies supervising or disciplining, 60 parole status, rights regarding, 59 prohibition against attempt to have employee or applicant obtain police record, 57–58 public utilities, access by

nuclear power plants, 62 residences, employees with access to, 62

residential eldercare facilities, access by, 60–61 residential facilities for developmentally disabled, access by, 61

Politics, unlawful questions of applicants, 24–25 Polygraph Examiners Board, filing complaint with, 39 Polygraph tests

applicants, 30 consent to, 39–40 investigations by employers, 39–40 refusal to take, right of, 39

PPOs, (Preferred provider organizations), regulation of, 117

46

Pre-existing conditions, healthcare plan coverage of, 117 Preferences

customer preference, discrimination based on, 27 military service, 25, 191

Preferred provider organizations (PPOs), regulation of, 117 Pregnancy

applicants, unlawful questions, 23 discrimination based on, 25, 152, 170, 171, 172, 174, 178, 184–185 family leave for, 131, 133, 134

Pregnancy disability leave benefits, effect on, 130, 154, 155 California and federal law, differences between, 149 duration of leave, 131, 149 family leave, interaction with, 130–135 lighter work, transfer to, 150–151 medical certifications, 128, 150 notice requirements, 131, 150 payment during, 152, 155–156 PDL (Pregnancy Disability Leave) Act, California

CFRA leave, interaction with, 149–150 leave time under, 131, 149 lighter work, transfer to, 150–151 medical certification requirements under, 150 notice requirements under, 150 overview of, 149 reasonable accommodation under, 150–151 reinstatement, right to, under, 151–152 seniority under, 151

SDI, effect on, 124–125, 128, 129, 130, 156 Preparatory tasks, time spent during, 84 Preparing to document claims, 9 Prevailing wages, 81–82 Primarily engaged in exempt work requirement, 73 Prisons, whistleblowers and, 287 Privacy

applicants and, 43 communications and, 41 Constitutional protections of, 270, 293, 294 credit reports and, 45, 50 drug testing and , 43, 44 healthcare records, of

California law and, 302–306 HIPAA, under, 31, 302, 306–311 overview of, 302

identity theft and, 311, 313 invasion of, 30, 40, 42, 50, 52, 56, 254, 266, 274, 303 personnel files, of, 295–296, 298–299 Social Security numbers, 299, 302

Privacy Act of 1974, 293, 295–296

47

Private Attorneys General Act (PAGA) arbitration and, 106 wage claims under excluded from Labor Commissioner jurisdiction, 107 whistleblowers and, 284

"Professional" exemption to IWC orders, 74 Psychiatric records, protection of, 305 Public employees

collective bargaining rights of, 242, 264 CPER (California Public Employee Relations), "Pocket Guides" for, 54, 245, 265 discharge or discipline

appeal rights regarding, 256 California State University workers and, 263 civil service employees, and, 262–263, 264–265 community college workers and, 263 Constitutional protections, 263–264 education employees and, 263 exercise of protected rights, for, 259 overview of, 258 probationary employees and, 265 public school workers and, 263 University of California workers and, 263

free speech and, 271 IWC orders, partial exemption of, 67, 68 NLRA, exclusion from coverage, 244 overtime laws, exemption of, 76, 79 paycheck regulations and, 99 PEPRA, 112–113 personnel files, special rules for, 294, 295, 295–297 political activities and, 271–272 Privacy Act protections for, 295–296 rights, general, for, 270–271 SDI coverage, 152, 154 state labor laws covering, 244–245 whistleblower protections, 278, 279, 281, 284, 286, 287

Public Employees' Pension Reform Act of 2013 (PEPRA), 112–113 Public Employees Retirement System (PERS), 232 Public Employment Relations Board (PERB)

complaints to concerted action, regarding, 246, 265 discharge or discipline, 264 union's duty of fair representation, 251

information, obtaining from, 265 laws administered by, 244–245 picketing and, 248

Public forums, union rights at, 246, 247 Public health, disclosure of healthcare records for purposes of, 309 Public Health, Department of

Licensing and Certification Division, 287 police records, access to, 61

48

whistleblowers, claims by, 286, 287 Public office, discharge or discipline for seeking or holding, 259 Public policy, discharge or discipline in violation of, 272–273 Public records, right to inspect and correct, 54–55 Public Safety Officers’ Procedural Bill of Rights Act, 39 Public schools

asbestos, whistleblowers and, 285 discharge or discipline of employees, 263–264 personnel files, right to inspect, 296–297 reports, required of, 298 state labor laws covering, 244 students, assaults or menacing acts by, whistleblowers and, 285

Public utilities discharge or discipline, use of detectives, 266–267 police records, access to

nuclear power plants, 62 residences, employees with access to, 57, 62

Public works, prevailing wages on, 81–82 Public Works Compliance Network, 82 Public Works Unit, Office of the Labor Commissioner, prevailing wage complaints with, 82

Q Qualifying exigencies for family leave

defined, 133, 136 military service and, 133, 136, 137, 139, 145–146

Quid pro quo sexual harassment, 186

R Race

applicants, unlawful questions, 20, 21, 25 discrimination, based on, 25, 27, 159, 169–174, 176, 191, 236, 253 harassment, based on, 159, 185, 186, 191, 254, 274–275

Railroads SDI coverage of employees, 126 whistleblowers, claims by, 281, 288–289

Railway Labor Act (RLA), 20, 58, 243 Ralph Civil Rights Act, 284 “Rap sheets.” See Police records Reasonable accommodation

disability discrimination and employer's duty regarding, 178–183 hiring rights regarding, 23, 27, 30 interactive process regarding, 182 pregnancy and, 184–185 requests for, 181–182 responses to requests for, 182

lactating employees and, 152 pregnancy disability leave, 149, 150–151

49

smokers and, 207 UI and, 160 Workers' Compensation and, 229

Recognitional picketing, 248 Recording conversations, secretly, 40–41 Records. See specific topic Rehabilitation Act of 1973, 173, 174, 191, 193 Reimbursement of expenses. See Expense reimbursement Reinstatement

family leave, following refusal to reinstate, 147–148 right to, 147–148, 150, 154

pregnancy disability leave, following, 151–152 whistleblowers and, 278, 282, 290

Releases of wages, 102 Religion

applicants, unlawful questions, 23 discharge or discipline based on, 253, 254, 275 discrimination based on, 25, 27, 170–174, 178, 182–183 harassment based on, 185, 275

Religious organizations discrimination, exceptions, 191 SDI exclusion, 127 Unemployment Insurance exclusion, 157

Relocation requirement, 29 Reporting-time pay, 88 Required payments. See Deductions from wages Residency requirement, 29 Residential facilities

developmentally disabled persons, access to police records by, 61 elder care facilities, access to police records by, 60–61

Rest periods, 66, 92, 93 Retail employees, use of detectives in discharge or discipline, 267–268 Retaliation

ACA, under, 115 ADA, under, 188-189 ADEA, under, 189 adverse action requirement for proving, 189-190, 280 claims regarding

California State University, 281, 282–283 DLSE, 200 DOL, 213, 281 ERISA, 284 NLRA, 9, 189, 278 OSHA, 115, 198–200, 281, 284, 290 workers' compensation, 238

collective bargaining agreements and, 281 Consumer Credit Protection Act, under, 284 criminal offenses, false charges of, as retaliation, 190 damages and, 190, 278, 282

50

DFEH, retaliation for complaints with, 187 discrimination and, 188–190 DOL, retaliation for health and safety complaints with, 213 EEOC, retaliation for complaints with, 189–190, 284 Employee Benefits Security Administration, complaints with, 284 ERISA, under, 284 Federal Employees’ Compensation Act, under, 284 FEHA, under, 171, 189 FLSA, under, 284 FMLA, under, 284 grievance procedure for, 281 harassment and hostile work environment, 188–190 laws regarding, 188-189 OSHA, claims with, 198–199, 284 proof of, 189-190, 280 protected activity requirement for proving, 189 safety, health, and sanitation claims, 213 Title VII, under, 189 USERRA, under, 190, 284 violations of law, for reporting or opposing, 271 Wage and Hour Division, complaints to, 284 whistleblowers, claims by (See Whistleblowers) workers’ compensation claims, for, 238

S Safety, health, and sanitation

asbestos exposure, 204–205 body protection, 204 changing rooms, 209 correction of unsafe conditions, 200 drinking water, 209–210 face and eye protection, 202–203 federal law, 198 filing health and safety complaints, 213 first aid, duty to provide, 207–208 foot protection, 204 hand protection, 204 hazardous substances (See Hazardous substances) head protection, 204 heat illness, duty to prevent, 210–211 Injury and Illness Prevention Programs (IIPP), 200 lead hazards, 205–206 medical services, duty to provide, 207–208 obligations of employers

airborne diseases, duty to protect from the spread of, 206 asbestos, duty to protect from, 204–205 changing room, duty to provide private, 209 confined spaces, duty to protect workers in, 206–207 drinking water, duty to provide pure, 209–210

51

harmful substances, duty to record and monitor exposure to, 202–203 hazard and pesticide restrictions, duty to abide by posted, 211 healthcare facilities, worker safety in, 208–209 heat Illness, duty to prevent, 210–211 injuries and illnesses, duty to keep records of, 201–202 Injury and Illness Prevention Program (IIPP), duty to establish, 200 lead hazards, duty to protect against, 205–206 medical services and first aid, duty to provide, 207–208 retaliation prohibited, 198–200 safety equipment, duty to provide and ensure use of, 203–204 safety training, duty to provide, 201 state and federal law, duty under, 198 tobacco smoke, duty to protect employees from, 207 toilet facilities, duty to provide clean, 209 unsafe conditions, duty to correct, 200 violence, duty to protect employees from workplace, 211–213

overview of, 197–198 Permissible Exposure Limit (PEL) for lead, 206 pesticide restrictions, 211 records of injuries and illnesses

log, 201 DLSR, reports to, 201–202 Fed-OSHA, reports to, 202

respiratory protective equipment, 203 retaliation and, 198–200 state law, 198 tobacco smoke exposure, 207 toilet facilities, 209 training, 201 violence in workplace, 211–213

Salaried employees IWC Orders, exemption for, 72–74 leave, under CRRA and FMLA for, 147–148 overtime pay, calculating for, 77–78 paycheck, timing for, 99

Salary basis requirement, 72 Sales commission employees

IWC orders, exemption from, 69 paycheck regulations, 99 wages and, 86–87

San Francisco "living wage” ordinance in, 80 minimum wage ordinance in, 80 PEPRA exemption, 112 prevailing wages in, 81 "Retail Workers Bill of Rights" in, 88–89 sick leave in, 123

San Francisco Bay Area Rapid Transit District, 244 Sanitation. See Safety, health, and sanitation

52

Sarbanes–Oxley Act of 2002, protections for reporting corporate fraud, 269, 290 Schools. See Educational employees; Public schools Scrip, unlawful payment of wages by, 102 SDI. See State Disability Insurance (SDI) Searches and seizures, drug testing as, 44 Secondary boycotts, 242, 247, 250 Security alerts, 47 Security freezes, 47–48 Seniority, effect of pregnancy disability leave on, 151 Serious health condition, family leave for. See Family leave Service charges, 19, 71 Service connected disability, 166 Service employees, use of detectives in discharge or discipline, 267–268 Seventh workday of week, wages for, 76, 87 Severance pay, wage claims for, 106 Sex discrimination

applicants, unlawful questions, 21–22 information regarding, 173, 186 overview of, 183–184 pregnancy, based on, 23, 178, 184–185 sexual orientation, 22, 184, 185 sexual stereotyping, 22, 183 unequal pay, 184

Sexual favoritism, 186 Sexual harassment, 22, 186, 187 Sexual orientation, unlawful questions of applicants, 22 Sexual stereotyping, 22, 183 SHOP Exchange, 115 Sick leave and kin care

CFRA, under, 153 complaints for violations, 123–124 family leave, use for, 153 Healthy Workplaces, Healthy Families Act of 2014

accrual and carryover under, 120 employees, covered under, 120 employer, prohibited actions by, 123 employers, covered under, 120 employment, end of, 121 enforcement and penalties under, 123–124 local laws, table of, 123 minimum requirements established under, 123 notice and posting requirements under, 121–122 pay, rate of, 121 recordkeeping under, 123 use of, 120–121

kin care, 120–121, 124, 153 right to, 120 SDI, effect on, 130

Significant risk of injury or disease, discrimination based on, 27 “Sit-down strikes,” 247, 249–250

53

Sleep time, 84–85 Slowdowns, 247, 249–250 Small claims courts, complaints in, 11 Social Security

disability benefits, 130, 230 independent contractors and, 13–14 numbers

E-verify and, 33 identity theft and, 47, 311, 312 immigration status, discrepancies, 33, 34 privacy of, 299, 302

Social Security Disability Insurance (SSDI), 130, 230 Supplemental Security Income (SSI), 130

Social Security Administration, United States, claims with, 14 Social Services, Department of

Community Care Licensing Division, 61 residential elder care facilities and, 60–61, 270 workfare workers, complaints regarding replacement by, 273

Solicitation of union members, right of, 245, 246 Special Counsel for Immigration-Related Unfair Employment Practices, complaints with, 21 Special Rules for wage and hour claims under union contracts, 12–13 Split-shift pay, 88 Spousal leave, 134 “Stand-by” time, 83 State Compensation Insurance Fund, 227, 297 State contracts, whistleblowers and, 287 State Disability Insurance (SDI)

appeals, 129 application process

claim forms, 127 determinations, 128 medical certification, 128 time limits for filing, 128

basic requirements for, 125–126 benefit payments, 129 claim forms, 127 covered employees, 125 determinations, 128 domestic employees, coverage of, 126 duration of benefits, 129 earning requirements for, 126 eligibility

"base period" for, 126 basic requirements for, 125–126 covered employees, 125 exclusions, 126–127 past earnings requirement, effect on, 126

exclusions from coverage, 126–127 government employees, 126

54

independent contractors employees wrongfully classified as, 13–14 exclusion from coverage, 13, 126

long-term disability, impact of, 130 medical certifications, 128 Non-industrial Disability Insurance (NDI), 125 nonprofit organizations, coverage of, 126 Paid Family Leave Insurance Program (See Paid Family Leave Insurance Program) past earnings requirements for, 126 pregnancy disability, impact of, 130, 152 railroad workers, coverage of, 126 religious organizations, coverage of, 127 scope of, 124–125 sick leave, impact of, 130 time limits for filing for, 128 undocumented workers, exemption from coverage, 15 Unemployment Insurance, impact of, 126 Voluntary Plans (VP), 125 workers’ compensation, impact of, 129–130, 229

State employees discharge or discipline

civil service employees, 262, 263, 264–265 constitutional protections, 263–264 educational employees, 263 evidence review, right to, 54 exercise of protected rights, for, 270 letters of reprimand, removal from files, 54 notice requirement, 54 overview of, 262 probationary employees, 265 specific groups, 265

free speech and, 271 IWC orders, applicability of, 68 NLRA, exclusion from coverage, 243 paycheck regulations, 99 performance reports, right to, 54 SDI coverage, 128 whistleblower protections, 284–285

State Employer–Employee Relations Act (SEERA), 244 State Personnel Board, complaints with

applicants, by, 20 discharge or discipline, 263, 264, 272 public records, regarding right to inspect and correct, 54 voting, discharge or discipline for, 272 whistleblowers, by, 281, 285

Strict scrutiny, 170 Strikes

collective bargaining agreements, in violation of, 249 economic strikes, 249

55

intermittent work stoppages, 249–250 limits on right to strike, 249 lockouts, 249 right to strike, 249–250 “sit-down strikes,” 247, 249–250 slowdowns, 249–250 sympathy strikes, 249 unfair labor practices, protesting, 249 “work-to-rule” actions, 249–250

Strip mining, whistleblowers and, 288 Students

assaults or menacing acts by, whistleblowers and, 285 Unemployment Insurance and, 157, 161

Subpoena disclosure of healthcare records pursuant to, 310 testifying as a witness pursuant to, 91

Superior Court, complaints in, 11–12 Supplemental Job Displacement benefits, 216, 231 Supplemental Security Income (SSI), 130 Surety bonds. See Bonds Sympathy strikes, 249

T Taft–Hartley Act, 242 Taxi drivers, applicability of IWC orders to, 68–69 Tax liens, deductions from wages, 95 Teachers

discharge or discipline, special laws for, 263 family leave, 138 personnel files, right to inspect, 262, 266, 296 whistleblower protections, 285

Termination. See Discharge and disciplinary action Text message surveillance, 41–42 Time limits for claims

overview, 12 SDI and, 126, 128 wages and, 107

Tipped workers, 70–71 Tips, 70, 71, 75, 80, 161 Title VII

complaints against government employers under, 193 discrimination overview, 21–23, 25, 172, 174 exceptions under, 191 pattern-and-practice discrimination under, 177 retaliation under, 189, 284 sex discrimination under, 172, 183–184

Tobacco smoke, duty to protect employees from, 207 Toilet facilities, duty to provide clean, 209 Tools

56

deductions from wages for failure to return, 94 expense reimbursement for costs of, 96, 97, 98, 231 labor commissioner, claims for unreturned, 11

Toxic substances access to information, 202 monitoring exposure to, employers duty of, 203 MSDS (Material Safety Data Sheet), employer's duty to make available a, 202 notification, 202 records, access to, 301 respiratory equipment for, 203 safety training, employer's duty to provide, 201 whistleblowers, claims by, 281 written records of, employer's duty to keep, 202

Trade Adjustment Assistance (TAA) Program, United States, 163, 268 Trade secrets, whistleblowers and, 279 Training Benefits program, California (CTB), 163–164 Training programs, time spent during as "hours worked", 85 Transportation, Department of, U. S., 42 Travel, time spent during as "hours worked", 83–84 Trespass, 246 Trial Court Employment Protection and Governance Act (TCEPGA), 244 Trial Court Interpreter Employment and Labor Relations Act (TCIELRA), 244 Truck drivers, applicability of IWC orders, 68–69 T visa, 35 Twitter, 41–42 Types of workers not covered in this book

Federal employees, 14 independent contractor, 13–14, but see Independent Contractors

U

UI. See Unemployment Insurance (UI) Undisputed wages, payment of, 102 Undocumented workers

ACA and, 113, 115 claims for wages earned by, 15 Deferred Action for Childhood Arrivals, 34 federal rights and protections for, 15 Internet resources for, 15 IWC orders, applicability of, 68 limits to benefits for, 15, Medi-Cal and, 116 rights of, 15 SDI and, 15 Social Security Numbers, discrepancies and, 34 T visas, 35 U visas, 35 wage claims by, 15 whistleblower protections for, 15

Undue hardship, disability discrimination and, 173

57

Unemployment Insurance (UI) actively seeking work requirement, 160 appeals, 162 application process, 161 availability for work requirement, 160 base period, minimum earnings during, 157 benefit checks

amount, determination of, 162 complex situations, 162 earned vacation, impact on, 163 earnings, impact on, 162 holidays, impact on, 163 past work, impact on, 163 payment process, 162 pension payments, Impact on, 163

California Training Benefit Program, 163–164 covered employment, 156–157 deadlines, importance of, 163 determinations, 162 discharge or discipline issues, 260 domestic employees, partial exclusion from coverage, 156 duration of benefits, 163 eligibility for, 156–161 extended benefits, 163 family members, exclusion from coverage, 157 federal employees, exclusion from coverage, 157 good cause, quitting for, 159–160 independent contractors

employees wrongfully treated as, 13–14 exemption from coverage, 13, 157

no fault requirement, 157–160 minimum earnings requirement, 157 misconduct, termination for, 157–159 overview of program, 156 part-time work, effect of, 161 refusing work, effect of, 160–161 religious organizations, exclusion from coverage, 157 scope of, 156 SDI, effect on, 126 students, exclusion from coverage, 157 undocumented workers, exemption from coverage, 15, 157 whistleblowers, claims by, 287 Work Sharing Unemployment Insurance Program, 164

Unfair labor practices employer, by, 34, 243 strikes to protest, 249 union, by, 243

Uniformed Services Employment and Reemployment Rights Act (USERRA) discrimination under, 173, 174

58

family leave under, 118 healthcare plans, continuation of, 118 retaliation under, 190, 284

Uniforms deductions from wages for failure to return, 94 expense reimbursement for costs of, 98 time spent changing, 84

Uninsured Employers Benefit Trust Fund, 227, 237 Union grievance procedure, 10 Unions

ACA (Affordable Health Care Act of 2010) and, 116 applicants, right to inform about labor disputes, 29, 250 arbitration, under collective bargaining agreement, 9, 10, 11, 12, 13, 105, 106 collective bargaining agreements (See Collective bargaining agreements) collective bargaining rights, 246 concerted action, right of, 245–246 exchange of salary information, right of, 251 expressive activity, right of, 247 fair representation, duty of, 251 federal labor laws governing, 242–244 grievance procedure

collective bargaining agreement, 9, 10 harassment, 185, 188 time spent during, 85

insignia, right to display, 250–251 intermittent work stoppages, 249–250 lockouts, 249 overview of, 241–245 personnel files, right to inspect, 55, 295 picketing

defined, 247 First Amendment and, 247 government employees, 247 informational picketing, 248 organizational picketing, 248 public places, in, 248 recognitional picketing, 248

public records, inspection of, 55 secondary boycotts, 247, 250 "sit-down strikes,” 247, 249–250 slowdowns, 249–250 solicitation of members, right of, 245, 246 state labor laws governing, 244–245 strikes (See Strikes) wage and hour claims, special rules for, 12–13 "work to rule” actions, 249–250

United States Constitution Bill of Rights, 294 discharge or discipline and, 263–264

59

discrimination and, 170 due process and, 263 Fifth Amendment, 170, 263 First Amendment, 247, 249, 270, 279 Fourteenth Amendment, 170, 249, 263 Fourth Amendment, 44 picketing and, 247, 248 privacy protections, 294 strikes and, 249

United States Postal Service, covered by NLRA, 243 University of California

California Public Employees' Pension Reform Act of 2013 (PEPRA), exempt from, 112 California Whistleblower Protection Act, exhaustion of administrative remedies and, 282 civil service laws, state, generally not covered by, 263 discharge or discipline of employees, 263 Higher Education Employer-Employee Relations Act (HEERA), labor relations in, 244 overtime laws, exempt from state, 76 personnel files, right to inspect, 296–298 retaliation claims, 281, 282–283 Workers' Compensation, work-related criminal act of violence exception for employees of, 229

Unlawful questions, not to be asked by employers, regarding age, 20–21 ancestry, 21 arrests and arrest records, 23–24 associations, 24–25 bonds, cash, 23 child or family support, 24 color, 21 credit rating, 24 disability, 23 gender, 21–22 gender identity/expression, 21–22 immigration, 21 marital status, 22–23 memberships, 24–25 national origin, 21 nationality, 21 other, 25 police records, 23–24 politics, 24–25 pregnancy, 23 race, 21 religion, 23 sex, 21–22 sexual orientation, 22

Unruh Civil Rights Act, 284 USERRA (Uniformed Services Employment and Reemployment Rights Act)

discrimination under, 173, 174 family leave under, 118

60

healthcare plans, continuation of, 118 retaliation under, 190, 284

Using this book, 7 Utilities

discharge or discipline, use of detectives, 266–267 police records, access to

nuclear power plants, 62 residences, employees with access to, 57, 62

U visa, 35

V Vacation leave

accrued vacation time forfeiture prohibited, 89, 119, 262 payment at time of separation, 90, 119, 121, 262

collective bargaining agreements, employees covered by, 90 complaints for violations, 119 discharge or discipline, right to accrued time upon, 262 earning, 119 family leave, use for, 141, 153, 154 Pregnancy Disability Leave, use for, 155–156 pro rata, 89 right to, 89, 119, 262 sabbatical and, 89–90 Unemployment Insurance, effect of payments on, 163 use of, 119 Voluntary Employees’ Beneficiary Association (VEBA) plans, employees covered by, 90

Vacation pay. See Vacation leave VEBA (Voluntary Employees’ Beneficiary Association) plans, 90 Veterans benefits

disability and, 165 fee and tax waivers and, 167 FMLA and, 134–135, 137, 144 health and related, 166–167 hiring preference, 25 homeless, special protections, 95–96 other assistance for, 167 pensions and, 165 resources for, 165 service-connected disability and, 166 Veterans' Employment and Training Service (VETS), 194, 284 Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA), 173, 174, 193

Veterans’ Employment and Training Service (VETS), 194, 284 VEVRAA (Vietnam Era Veterans’ Readjustment Assistance Act of 1974), 173, 174,193 Video surveillance, 42 Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA), 173, 174,193 Violence in workplace

administrative measures, 212 behavioral measures, 212

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disability and, 229 discipline, as, 274 environmental design measures, 212 high-risk situations, 211 issues for accused employees, 213, 294 prevention strategies, 211–212

Visas, for crime victims, 35 Voice stress analyses and voice prints, 40 Voluntary Employees’ Beneficiary Association (VEBA) plans, 90 Voluntary Plans (VP), 125 Volunteers, applicability of IWC orders to, 68 Voting

discharge or discipline for, 271–272 wages for time spent in, 90

Voucher, unlawful payment of wages by, 102 VP (Voluntary Plans), 125

W Wage and Hour Division, U.S. Department of Labor, complaints to

environmental safety violations and, 288 family leave laws' violations, 148 minimum wage, failure to meet, 11 overtime, failure to pay and, 11 overview of, 11 polygraph tests, regarding, 39 retaliation claims, 284 Service Contracts Act, violations and, 274 whistleblowers, by, 281, 284

Wage deductions. See Deductions from wages Wages and hours

bonuses calculation of, 87 overview of, 87 regular rate of pay and, 77 separation from employment, following, 87

cash, payment by, 101–102 commissions

IWC orders, commission sales exemption, 69 overview of, 86 regular rate of pay and, 77 separation from employment, following, 86–87

deductions (See Deductions from wages) discharge or discipline, right to prompt receipt upon, 261–262 equal pay for equal work, 86 exchange of salary information, right of, 251 expense reimbursement (See Expense reimbursement) full payment, right to, 68, 70, 85

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Industrial Welfare Commission orders and exemptions determining which wage order applies, 67 employees who are completely exempt, 67 employees with particular or specified protections under state law, 68–74

itemized wage statements, 100–101 jury duty, for time spent in, 90 Labor Commissioner claims

appealing orders, decisions, or awards to court, 105 Berman Hearing process, 104–105 claims that may be excluded from Berman Hearing process, 105 deadlines for filing wage claims, 107 deciding to file lawsuit or claim with Labor Commissioner, 103–104 functions of the Labor Commissioner, 104

“living wage” ordinances, 75, 80–81 meal periods, rest breaks, and recovery periods

meal periods, 91–93 recovery periods, 93 rest breaks and recovery periods for piece-rate workers, 93 rest breaks, 93

minimum wage (See Minimum wage) misrepresentation of, 85 overtime (See Overtime) overview of, 66–67 paycheck regulations

cash or negotiable check, payment by, 101–102 final paychecks, timing of, 99 final wages, penalty for late payment of, 99–100 "payment in full" checks, 102 regular paychecks, timing of, 98–99 undisputed wages, payment of, 102 wage releases or waivers, 102 wage statements, itemized , 100–101

prevailing wages, 81–82 reimbursement of expenses (See Expense reimbursement) releases, 102 reporting-time pay, 88 scrip, payment by, 102 service charges, 71 seventh workday of week, for, 76, 87 split-shift pay, 88 tips, 70–71, 75, 80 undisputed wages, payment of, 102 vacation time (See Vacation leave) voting, time spent in, 90 voucher, unlawful payment by, 102 wage deductions. See Deductions from wages wages

bonuses, 87 civic duties, pay for time spent performing , 90–91

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commission payments following separation from employment, 86–87 commissions, 86 defined, 74 equal pay for equal work, right to, 86 "hours worked", payment for all, 82–85 local minimum wage and living wage ordinances, 80–81 minimum wage, 74–75 misrepresentations of pay, 85 overtime pay, 75–79 predictability or fair scheduling ordinances, 88–89 prevailing wages on public work projects, 81–82 promised wages, right to full payment of, 85 reporting-time pay, 88 seventh workday of the week, pay for, 87 sick leave pay, 90 split-shift pay, 88 vacation pay, 89–90

wage theft, protections against attorney's fees, 103 immigrant workers and, 103 Wage Theft Prevention Act of 2011, 102–103

waiting time pay, 100, 102, 107, 261 waivers, 102 witness, time spent testifying as, 91

Wage Theft Prevention Act of 2011, 102–103 Wagner Act, 242, 243 Waiting time pay, 100, 102, 107, 261 Waivers of wages, 102 WARN (Worker Adj. and Retraining Notification) Act, claims excluded from Labor Commissioner review, 106–107 WCAB (Workers’ Compensation Appeals Board)

claims with, 14, 217, 218, 224, 225, 227–231, 232, 236–239 healthcare records, access to, 305

Whistleblowers child abuse, 287–288 child daycare facility licensing violations, 286 child daycare workers, 286 commercial vehicle violations, 288 confidential information and, 279, 291 educational employees, 285–286 elder abuse, 287–288 environmental violations, 288 fraud and corruption, corporate, 290 free speech and, 279 general provisions

claim, pursuing an unlawful retaliation, 281–284 false employer reports, prohibited, 279–280 government committees, right to appear before, 279 illegal activity, right to refuse to participate in, 279 judicial proceedings, right to appear in, 279 retaliation, proving unlawful, 280

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violations, right to report, 278–279 government committees, right to appear before, 279 hazardous substance violations, 288 healthcare workers, 286 illegal activity, right to refuse to participate in, 279 institutionalized persons, 287 judicial proceedings, right to appear in, 279 long-term care facility violations, 286–287 marine safety violations, 289–290 nuclear hazards, 288 OSHA, claims with, 281, 284, 290 overview of, 277–278 planning to become, 291 prison violations, 287 public employees, 284–286 railroad violations, 288–289 reporting of violations

false reports, 279–280 right of, 278–279

retaliation claims administrative remedies, 281–283 adverse employment action requirement, 280 burden of proof, 280 Cal-OSHA, 284, 288 connection between protected activity and adverse employment action, 280 court enforcement, 283–284 DFEH, with, 281, 282, 284 DOL, with, 281, 282, 284 EEOC, with, 282, 284 exhaustion of administrative remedies, 282–283 Labor Commissioner, with, 281–282 motivating factor, 280–281 OSHA, 281, 284, 290

special protections and responsibilities child daycare workers, 286 child, elder, or dependent adult, abuse or neglect of, 287–288 Dodd-Frank Act and, 290 environmental safety violations and, 288 food handling and, 290–291 fraud and corruption, corporate, 290 healthcare workers, 286 land and sea transportation violations and, 288–290 long-term care workers, 286–287 other public employers and jurisdictions, 286 prisons and other institutional workers, 287 public safety officers, 287 school and college employees, 285–286 state contracts, violations by employers with, 287 state employees, 284–285

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Unemployment Insurance laws, rights under, 287 violations, specific types of, 287–291 workers, specific types of, 284–287

state contract violations, 287 strip mining violations, 288 students, assaults or menacing acts by, 285 trade secrets and, 279 Unemployment Insurance violations, 287

White collar exemptions to IWC orders. See Industrial Welfare Commission (IWC) orders Wire and Electronic Communication Interception and Interception of Oral Communications, federal, 41 Wiretapping, 41 Witnesses, wages for time spent testifying as, 91 Worker Adj. and Retraining Notification (WARN) Act, claims excluded from Labor Commissioner review, 106–107 Workers’ compensation

ADR agreements, effect of, 218–219 arbitration, unavailability of, 12 asbestos exposure, 204 attorneys, right to, 219–220 basic elements

alternative dispute resolution systems (ADR), 218 –219 eligibility for benefits from, 216 –218 purposes of, 216

benefits accrued death benefits, 232 delays of payment of benefits, compensation for, 230–231 permanent disability pay, 229–230 retraining, 231 return-to-work supplement program, 231 Subsequent Injuries Benefit Trust Fund, additional benefits from, 239 survivor's death benefits, 232 temporary disability pay, 228–229

claim process claims administrator, deposition of injured worker, 233 discrimination after filing a claim, 238 filing a claim, 232–233 hearings, 236–237 medical reports and other evidence, gathering, 233 misconduct of employer, serious and willful, 238–239 permanent disability rating, getting a, 236 qualified medical evaluators (QME), 233–236 reporting an injury, 221, 222, 232–233 retaliation after filing a claim, 238 settlements and waivers, 236 Subsequent Injuries Benefit Trust Fund, additional benefits from, 239 "third party" lawsuits, 237–238 time limits for, 223, 225, 227, 232, 233, 238 uninsured employers, claims against, 237 Workers' Compensation Appeals Board, filing a case with, 233

cumulative injuries, 217, 222, 232 deductions of wages for costs of, 95

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delay in payment of benefits, 230–231 duty to be insured, 216, 227, 237 employer defined, 218 employer's obligations under

medical evaluations and tests in contested claims, duty to pay for, 228 medical treatment, duty to pay for, 227–228 transportation, duty to pay for medically related, 225–226, 228 workers' compensation insurance, duty to have, 216, 227, 237

ERISA exemption, 111 excluded employees, 217–218 healthcare records, disclosure for purposes of, 305 hearings, 236–237 independent contractors

coverage of, 218 employees wrongfully treated as, 14 exemption from coverage of, 13

information, additional sources of, 239 Labor Commissioner, claims with

failure to be insured, 227, 237 rights of employees, lack of notice, 219

medical treatment agreed medical evaluators (AME), 233, 236 changing doctors, 222, 225 disagreeing with recommendations, 225 duty to pay for, 227–228 evaluations, payment for, 228 expediting process, 224 failure of claims administrator to authorize, 233 failure to provide, 221–222, 233 guidelines for, 216 medical examinations, payment for, 226–227 MTUS (Medical Treatment Utilization Schedule) guidelines for, 216, 223, 224 obtaining evidence, 233 predesignating a personal doctor, 216, 222 qualified medical evaluators (QME), 233–236 reports, 233 right to, 220, 227 selection of healthcare provider, 216, 221–222 tests, payment for, 228 transportation, payment for, 225–226

Medicare and, 225, 230 notice of rights of employees, 219 obtaining information regarding, 215–216 occupational injuries, 216, 217, 223 overview of, 215–216 permanent disability benefits, 229–230 psychiatric injuries, 217, 224 purposes of, 216 retaliation, 238

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retraining, 231 rights of employees

attorney, right to hire an, 219–220 challenging an opinion of a treating physician, 225 coverage, rights, and benefits, right to notice of, 219 medical providers, how they get paid for their services, 226–227 medical treatment, right to, 220–225 transportation for medical treatment, employer must pay for, 225–226

SDI, effect on, 124, 126, 129–130 self-insurance, 216, 221, 227 serious and willful misconduct of employer, 238–239 serious health conditions for purposes of, 143 settlement of claims, 236 social security permanent disability income and, 230 specific injuries, 217, 232 SSDI and, 230 stop orders, 237 supplemental job displacement benefits, 231 temporary disability benefits, 129, 228–229, 230, 232, 233, 235, 236, 237 third parties, actions against, 237–238 time requirements, 223, 225, 227, 232, 233, 238 uninsured employers, claims against, 237 waiver of rights, 236 work-related injuries covered, 215, 216–217, 218

Workers’ Compensation Appeals Board (WCAB) claims with, 14, 217, 218, 224, 225, 227–231, 232, 236–239 healthcare records, access to, 305

Workers’ Compensation, Division of claim forms, 223, 231, 232 Information and Assistance Unit, 215, 219, 228, 229, 231 obtaining information from, 216, 221, 223, 239

Workfare worker, displacement by, 273 Workforce Innovation and Opportunity Act, United States, 163 Work Sharing Unemployment Insurance Program, 164 “Work to rule” actions, 249–250 Wrongful discharge, 258–259, 306

Y “Yellow dog” contracts, 243