Labor Code 101 for Public Agencies

Labor Code 101 for Public Agencies

TABLE OF CONTENTS 4-17 S SECTION 1 Assignment of Claims to Labor Commissioner and Division of Labor Standards Enforcement... 12 96. Assignment of Claims... 12 98.6. Discharge or Discrimination Against Employee or Applicant; Reinstatement and Reimbursement or Employment Entitlement for Applicant: Severability; Applicability... 13 98.7. Persons Allegedly Discharged or Otherwise Discriminated Against in Violation of Law; Filing of Complaint; Investigation; Report; Remedies; Dismissal; Appeals... 15 SECTION 2 Workers Compensation Anti-Discrimination Statute... 17 132a. Discrimination Against Workers Injured in Course of Employment or Testifying before Appeals Board; Penalties... 17 SECTION 3 Labor Code Sections Regarding Payment of Wages That DO NOT Apply to Public Agencies... 18 220. Public Employees... 18 200. Definitions... 19 201. Immediate Payment of Wages upon Discharge or Layoff; Treatment of Related Benefits... 19 201.3. Temporary Services Employers; Definitions; Time for Payment of Employee Wages; Penalties.. 20 202. Immediate Payment of Wages upon Resignation; Treatment of Related Benefits... 22 203. Failure to Make Payment within Required Time; Penalty; Employee Avoiding Payment; Limitation of Actions... 23 203.1. Payment of Wages or Fringe Benefits with Bad Check; Penalty... 24 203.5. Failure of Bonding Company to Pay Verified Claim for Wages... 24 204. Semimonthly Payments; Exceptions... 25 204a. Employees of Several Employers; Plan for Central Place of Payment; Notice to Labor Commissioner... 25 204b. Weekly Payments... 26 204c. Semimonthly Payments; Exception of Certain Executive, Administrative or Professional Services... 26 204.1. Employees of Vehicle Dealers; Commission Wages; Monthly Payment... 26 204.2. Executive, Administrative, and Professional Employees... 27 204.3. Compensating Time Off in Lieu of Overtime Compensation; Limits... 27 205. Agricultural and Domestic Employment; Payment Periods... 29 205.5. Agricultural Employees; Payment Period and Dates... 29 206. Payment of Undisputed Amount; Failure to Pay Determined Amount; Treble Damages... 29 206.5. Execution of Release of Claim or Right on Account of Wages Due... 30 207. Posting of Notice of Regular Pay Days... 30 208. Place of Payment... 30 209. Payment in Event of Strike... 30 210. Civil Penalty for Failure to Make Payments; Action for Recovery; Disposition of Money Recovered... 31 211. Actions to Recover Civil Penalties; Fees for Service of Summons; Joinder of Causes of Action; Demand for Payment... 31 215. Violations; Misdemeanor... 32 216. Refusal to Make Payment; False Denial of Amount or Validity of Wages; Misdemeanor... 32 217. Enforcement... 32 218. Authority of District Attorney and Wage Claimant... 32 218.5. Actions for Nonpayment of Wages, Fringe Benefits, or Health and Welfare or Pension Fund Contributions; Award of Attorney s Fees to Prevailing Party; Application of Section... 33 218.6. Actions for Nonpayment of Wages; Award of Interest... 33 iv

219. More Frequent and Larger Payments; Private Agreements in Violation of Provisions... 33 226. Itemized Statements; Contents; Records; Inspection of Records; Compliance with Inspection Request; Limitations of Applicant... 34 226(i) DOES Apply to Public Agencies... 34 226.3. Civil Penalties; Itemized Statements by Employers; Inadvertent Mistakes... 37 226.7. Recovery Period Defined; Mandated Meal, Rest, or Recovery Periods; Requirement to Work Prohibited; Application of Section... 38 1025. Accommodation of Employee in Alcohol or Drug Rehabilitation Program; Construction of Chapter... 38 1026. Safeguarding Employee Privacy... 39 1027. Compensation Not Required; Use of Sick Leave... 39 1028. Complaints by Employees; Applicable Law... 39 SECTION 4 Labor Code Sections Regarding Payment of Wages That DO Apply to Public Agencies... 39 212. Prohibited Forms of Payment; Instruments Protested or Dishonored; Effect of Notice... 40 213. Exceptions... 40 214. Place of Prosecution for Illegal Form of Payment... 41 220. Public Employees... 41 221. Repayment of Wages to Employer... 42 222. Withholding of Part of Wage... 42 222.5. Cost of Pre-Employment Physical Examination or Physical Examination Required by Law... 42 223. Payment of Less than Statutory or Contractual Wage Scale... 42 224. Authorized Deductions... 42 Government Code 3508.5... 43 Government Code 1171... 43 225. Violations; Misdemeanor... 43 225.5. Unlawful Withholding of Wages; Civil Penalty, Action for Recovery; Disposition of Money Recovered... 44 226.8. Unlawful Actions Regarding Willful Misclassification of Individual as Independent Contractor; Civil Penalty; Violation of Licensed Contractor; Display of Notice; Issuance of Determination by Labor Commissioner; Effect on Successor Entities... 44 227. Failure to Remit Withholdings from Wages; Failure to Make Agreed Payments to Health or Welfare Fund, Pension Fund, Vacation Plan, or Other Fund or Plan; Criminal Penalties; Disposition of Recovered Withholdings... 47 227.3. Vested Vacation Wages; Payment upon Termination... 47 229. Labor Commissioner s Jurisdiction to Enforce Payment of Wages... 48 SECTION 5 Jury or Witness Duty, Judicial Proceedings and Legal or Remedial Actions by Domestic Violence or Sexual Assault Victims... 48 230. Jury or Witness Duty; Legal Actions by Domestic Violence or Sexual Assault Victims; Right to Time Off; Reinstatement and Reimbursement; Misdemeanor; Right to File Complaint with Division of Labor Standards Enforcement... 48 230.1. Employers with 25 or More Employees; Domestic Violence or Sexual Assault Victims; Right to Time Off... 52 230.2. Victims of Crime; Work Absences for Judicial Proceedings; Covered Employees... 54 SECTION 6 Time Off for Emergency Duties as Voluntary Firefighter, Reserve Police Officer or Emergency Rescue Personnel... 56 230.3. Volunteer Firefighter; Reserve Peace Officer; Emergency Rescue Personnel; Time Off; Discrimination... 56 230.4. Volunteer Firefighter; Leaves of Absence for Training... 57 v

SECTION 7 Victim of Certain Crimes; Right to Time Off... 57 230.5. Discrimination or Retaliation Against Victims of Certain Crimes Prohibited; Conditions for Taking Time Off; Reinstatement or Reimbursement; Filing of Complaint... 57 SECTION 8 Time Off for Required School Appearances or to Participate in School or Day Care Activities... 60 230.7. Discharge or Discrimination against Employee for Taking Time Off to Appear in School on Behalf of Child... 60 230.8. Discharge of or Discrimination against Employee for Taking Time Off for Child-Related Activities; Use of Vacation, Personal Leave, Compensatory Time Off or Time Off without Pay; Documentation of Participation; Reinstatement and Reimbursement... 60 SECTION 9 Costs of Physical Examination; Disclosure of Wages and Working Conditions... 62 231. Physical Examination for Driver s License Required in Employment; Payment of Costs... 62 232. Amount of Wages; Prohibition of Sanctions Against Employee Disclosure... 62 232.5. Working Conditions; Prohibition of Sanctions Against Employee Disclosure... 63 SECTION 10 Use of Sick Leave... 63 233. Sick Leave; Use to Attend to Illness in Family... 63 234. Sick Leave to Attend to Illness in Family; Employer Absence Control Policy; Legal and Equitable Relief... 64 245. Paid Sick Leave... 64 245.5. Paid Sick Leave; Definitions... 65 246. Paid Sick Days... 66 246.5. Employer Provided Sick Days; Employee Request; Replacement Workers; Accrued Sick Days.. 70 247. Display of Poster; Contents... 71 247.5. Records Documenting Hours Worked and Paid Sick Days Accrued and Used; Access to Records... 71 SECTION 11 Copies of Employment Documents... 72 432. Delivery of Copy of Instrument to Employee... 72 SECTION 12 Polygraphs, Disclosure of Arrests and Employee Recordings... 72 Penal Code 637.3.... 72 Voice Prints or Other Voice Stress Patterns; Use of Systems to Record or Examine Without Consent; Damages... 72 432.2. Polygraph or Lie Detector Test as Condition of Employment; Advice of Rights... 72 432.5. Unlawful Terms and Conditions... 73 432.7. Disclosure of Arrest or Detention Not Resulting in Conviction, or Information Concerning Referral or Participation in Diversion Programs, or Conviction Judicially Dismissed or Sealed; Disclosure of Information Related to Arrest, Detention, Processing, Diversion, Supervision, Adjudication, or Court Disposition While Subject to Juvenile Court Law; Violations; Remedies; Exception; Health Facility Applicants; Prospective Concessionaires... 73 432.8. Limitations on Employers and Penalties for Certain Convictions... 78 432.9. Prohibition Against Request to Disclose Conviction History Prior to Determination That Applicant Meets Minimum Employment Qualifications; Exceptions... 78 435. Audio or Video Recording of Employee Restroom, Locker Room or Changing Room; Prohibition; Use of Recordings in Violation of Section... 79 vi

SECTION 13 Coercion of Purchases... 79 450. Coercion... 79 SECTION 14 Sections Regarding Hours of Work That DO NOT Apply to Public Agencies... 80 500. Definitions... 80 510. Day s Work; Overtime; Commuting Time... 80 511. Alternative Workweek Schedules... 81 512. Meal Periods; Requirements; Order Permitting Meal Period After Six Hours of Work; Exceptions; Remedies Under Collective Bargaining Agreement... 83 Exception for Commercial Drivers Employed by Public Agencies... 84 512.5. Adoption of Amendment by Industrial Welfare Commission of Order Applying to Employee of Public Agency Who Operates a Commercial Motor Vehicle; Exemption of Employee Relating to Meal or Rest Periods... 86 Exception for Commercial Drivers Employed by Public Agencies... 86 513. Makeup Work Time... 86 514. Employees Covered by Collective Bargaining Agreements; Application of 510 and 511... 87 515. Exemptions... 87 515.5. Computer Software Field Employees; Exemption; Requirements... 88 515.6. Licensed Physicians and Surgeons; Exemption from 510... 90 516. Adoption or Amendment of Working Condition Orders; Break Periods, Meal Periods, and Days of Rest; Validity of Health Care Employee Meal Period Waiver Provisions... 90 517. Industrial Welfare Commission; Adoption of Wage, Hours and Working Conditions Orders; Review of Wages, Hours and Working Conditions in Certain Industries; Publication of Wage Orders and Other Regulations... 91 550. Day s Rest Defined... 92 551. One Day s Rest in Seven... 92 552. Maximum Consecutive Working Days... 92 553. Violation; Misdemeanor... 92 554. Exemptions from 551 and 552... 92 555. Applicability to Cities and Counties... 93 SECTION 15 Social Media... 93 980. Employer Use of Social Media... 93 SECTION 16 Unfair Immigration Related Practices... 94 1019. Engaging in Unfair Immigration-Related Practices in Retaliation for Exercising Protected Rights; Presumption; Civil Action; Penalties... 94 1019.1 Verification of Employment Authorization; Unlawful Acts; Penalty; Liability for Equitable Relief... 96 244. Exhaustion of Administrative Remedies; Reporting or Threatening to Report Suspected Citizenship or Immigration Status as Adverse Action... 97 SECTION 17 Consumer Credit Reports... 97 1024.5. Employer Use of Consumer Credit Reports... 97 1024.6. Employee Updates to Personal Information; Discharge, Discrimination, Retaliation or Adverse Action by Employer Prohibited... 99 SECTION 18 Lactation Accommodation... 99 vii

1030. Break Time for Employees to Express Breast Milk; Time Issues... 99 1031. Use of Room or Location other than Toilet Stall... 99 1032. Provision of Break Time... 99 1033. Violation... 100 SECTION 19 Reemployment Privileges... 100 1050. Misrepresentation Preventing Employment of Former Employee; Misdemeanor... 100 1051. Improper Use of Fingerprint or Photograph; Misdemeanor... 100 1052. Permitting Violation; Misdemeanor... 101 1053. Truthful Statement of Reasons for Termination of Employment... 101 1054. Violation; Civil Penalty... 101 1055. Public Utility Corporations; Letter of Service Upon Termination of Employment... 101 1056. Violation By Public Utility; Misdemeanor; Penalty... 101 1057. Management Company Employee; Fingerprints... 102 SECTION 20 Political Activities and Affiliations... 102 1101. Political Activities of Employees; Prohibition of Prevention or Control by Employer... 102 1102. Coercion of Political Activities of Employees... 102 Government Code 3207... 103 SECTION 21 Whistleblower Statute... 103 1102.5. Employer or Person Acting on Behalf of Employer; Prohibition of Disclosure of Information by Employee to Government or Law Enforcement Agency; Suspected Violation or Noncompliance to Federal or State Law; Retaliation; Civil Penalties... 103 1102.6. Civil Actions or Administrative Proceedings; Burden of Proof for Employer... 104 1102.7. Whistleblower Hotline; Confidential Information; Office of Attorney General... 105 1102.8. Display of Employee s Rights and Responsibilities under Whistleblower Laws; Compliance with Posting Requirement... 105 1103. Violation; Misdemeanor; Penalty... 106 1104. Responsibility of Employer for Actions of Agents... 106 1106. Employee... 106 SECTION 22 State Minimum Wage... 106 1174. Duties of Employers... 106 1182.11. Minimum Wage for All Industries; Amount; Adoption of Minimum Wage Orders... 107 1182.12. Minimum Wage; Scheduled Increases; Adjusted Minimum Wage; Temporary Suspension of Increases... 107 1183. Delivery of Copies of Orders to Employers; Posting Requirements... 111 1194. Action to Recover Minimum Wage, Overtime Compensation, Interest, Attorney s Fees, and Costs by Employee... 112 1194.2 Liquidated Damages... 112 1195. Registration of Complaints with Division; Investigation; Enforcement of Minimum Wage... 113 1195.5. Determination of Computation and Payment of Wages in Excess of Minimum; Examination of Records; Enforcement of Payment of Unpaid Sums... 113 1197. Payment of Less Than Minimum Wage... 113 1197.1. Payment of Less Than Minimum Wage; Penalties; Citation; Procedure; Judgment... 113 SECTION 23 State Minimum Wage Exceptions... 116 viii

1182.4. Student Employee; Camp Counselor or Program Counselor of Organized Camp; Compensation; Value of Meals and Lodging... 116 1191. Special License for Mentally or Physically Handicapped... 117 1192. Special License for Apprentices and Learners... 117 SECTION 24 Equal Pay for Equal Work... 117 1197.5. Equal Wage Rates; Exceptions; Liability; Enforcement; Retaliation... 117 SECTION 25 Access to Personnel Files... 120 1198.5. Right to Inspect Records... 120 SECTION 26 Employment of Minors... 124 1290. Employment of Minors under 16... 124 1294.1. Minors under 16 years of Age and All Minors; Prohibited Employment... 124 1294.3. Employment Allowed Minors 14 to 15 Years of Age... 125 1294.4. Delivery of Newspapers; Means of Transportation... 125 1294.5. Gas Service Stations... 125 1295. Courses of Training; Exception... 126 1295.5. Employment of Minors; Performance of Sports-Attending Services... 127 1391. Hours of Employment of Minors, Violation, Misdemeanor, Penalty... 128 1391.1. Minors 16 to 18 Years of Age Enrolled in Work Experience or Cooperative Vocational Education Programs... 129 1391.2. Minors under 18 Years of Age; High School Graduate or Equivalent or Possessing Certificate of Proficiency; Same Hours and Pay as Adults; Exceptions... 129 SECTION 27 Relocations, Terminations, and Mass Layoffs... 130 1401. Notice Requirements... 130 1402. Failure to Give Required Notice; Liability of Employer... 130 1402.5. Exemption from Notice Requirements; Conditions... 131 SECTION 28 Public Works and Public Agencies... 132 1720. Public Works and Paid for in Whole or in Part Out of Public Funds Defined; Exemptions from Chapter; Ordinances Requiring Payment of Prevailing Wages... 132 1720.2. Public Works; Private Contracts; Conditions... 136 1720.3. Public Works; Hauling Refuse from Public Works Site... 136 1720.4. Work Performed by Volunteers, Volunteer Coordinators, or Conservation Corps Members; Exemption from Chapter... 137 1723. Worker Defined... 138 1726. Cognizance of Violations in Execution of Contracts; Reports; Withholding Procedures; Actions to Recover Wages; Costs and Attorneys Fees... 138 1727. Withholding to Satisfy Wage and Penalty Assessments... 138 1771. Payment of General Prevailing Wage... 139 1773.2. Specification of General Wage Rate in Call for Bids, in Bid Specifications and in Contract; Posting at Job Site... 139 SECTION 29 Meal Periods for Municipal Employees... 140 1900. Employees Entitled to Time Off for Meals... 140 1901. Violation; Misdemeanor... 140 ix

SECTION 30 Private Attorney General Act of 2004... 140 2698. Short Title... 140 2699. Actions Brought by an Aggrieved Employee or on Behalf of Self or Other Current or Former Employees; Authority; Gap-Filler Penalties; Attorneys Fees; Exclusion; Distribution of Recovered Penalties... 140 2699.3. Requirements for Aggrieved Employee to Commence Civil Action... 143 2699.5. Application of subd. (a) of 2699.3... 146 SECTION 31 The Contract of Employment... 147 2753. Advisement of Employer to Treat Individual as Independent Contractor to Avoid Employee Status; Joint and Several Liability... 147 925. Prohibition Against Requirement that Employee Residing and Working in California Adjudicate Claim Outside of California or Be Deprived of Substantive Protection of California Law as Condition of Employment; Violations and Remedies; Exception... 148 SECTION 32 Indemnification of Employees... 149 2802. Indemnification for Employee s Expenses and Losses in Discharging Duties; Award Interest; Definition... 149 Government Code 825.... 149 Defense by Public Entity; Payments of Judgments; Compromises or Settlements; Punitive Damages; Memorandum of Understanding; Elected Officials; Tortious Influencing of Judicial Actions... 149 Government Code 995.... 152 Authority to Provide for Defense or Civil Action or Proceeding... 152 Government Code 995.2.... 152 Grounds for Refusal to Provide Defense; Request of Defense; Refusal because of Conflict of Interest... 152 Government Code 995.4.... 153 Actions or Proceedings Brought by Public Entity... 153 Government Code 995.6.... 153 Administrative Proceedings... 153 Government Code 995.8.... 154 Criminal Actions and Proceedings... 154 Government Code 996.... 154 Counsel; Insurance; Expenses... 154 Government Code 996.4.... 154 Failure or Refusal to Provide Defense... 154 SECTION 33 Coverage for Medical, Surgical or Hospital Benefits... 155 2806. Coverage for Medical, Surgical or Hospital Benefits; Discontinuation; Notice to Employees... 155 2807. Notification to Former Employees of Availability of Continued Medical, Surgical or Hospital Benefits... 155 2808. Description of Benefit Plan; Provision to Employees; Notification of Coverage Options upon Termination of Employment... 156 SECTION 34 At-Will Employees... 156 2922. Termination at Will upon Notice; Employment for a Specified Term... 156 2924. Employment for a Specified Term; Grounds for Termination by Employer... 156 SECTION 35 Deductions for Tardiness; Garnishment of Wages... 157 x

2928. Deductions for Tardiness of Employee... 157 2929. Prohibition against Discharge for Threat of Garnishment for Payment of One Judgment... 157 SECTION 36 Safety in Employment... 158 6300. Purpose... 158 6310. Retaliation for Filing Complaint Prohibited; Offenses... 158 6311. Retaliation for Refusal to Work in Violation of Health and Safety Standards; Action for Wages... 159 6328. Notice Relating to Safety Rules and Right to Report Unsafe Conditions, etc.; Posting... 160 6400. Safe and Healthful Employment and Place of Employment... 160 6401. Duty to Furnish Safety Devices and Adopt Safe Practices and Procedures... 161 6402. Preventing Entry into Unsafe or Unhealthful Place... 161 6403. Failure to Furnish Safety Devices or Adopt Safe Practices and Procedures... 161 6404. Occupancy or Maintenance of Unsafe or Unhealthful Place of Employment... 162 6404.5. Enclosed Place of Employment; Smoking Prohibition; Legislative Findings, Declarations, and Intent; Uniform Statewide Standard; Violation; Penalties... 162 Government Code 7597.... 165 Smoking Prohibition; Preemption... 165 Government Code 7598.... 165 Smoking in Outdoor Area of Public Building... 165 APPENDIX A Sample Posting Labor Code Section 1102.8(a)... 166 APPENDIX B Official Notice: Industrial Welfare Commission Order No. 9 2001 Regulating Wages, Hours and Working Conditions in the Transportation Industry... 168 APPENDIX C Sample Posting Labor Code 6328 Safety and Health Protection on the Job... 180 ENDNOTES... 182 xi