Employment Law Blog

Several states regulate workers’ compensation laws in the United States. The Office of Worker’s Compensation Programs is housed inside the U.S. Department of Labor, although it solely oversees coverage for federal employees, longshoremen and harbor workers, energy workers, and coal miners.

Because there are no federal requirements for workers’ compensation, each state has quite different laws governing the same types of injuries.

Starting in January 2021, there will be some new employment legislation going into effect. Here’s a little breakdown of some key things to know, as an employee.

Under the Private Attorneys General Act (“PAGA”), an aggrieved employee may bring a civil action personally and on behalf of other current or former employees and the State of California to recover civil penalties for Labor Code violations. Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, 380. Seventy-five percent of any PAGA penalties go to the Labor & Workforce Development Agency (“LWDA”), leaving the remaining 25 percent for the employees. Id.; see also ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175, 275. PAGA is intended to augment the limited enforcement capability of LWDA by empowering employees to enforce the Labor Code as representatives of the Agency. Id. at p. 383. A judgment in a PAGA action binds all those who would be bound by a judgment in an action brought by the government. Id. at 381.

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Under the “ABC Test” established by the California Supreme Court in Dynamex Operations West, Inc. v. The Superior Court of Los Angeles County, a worker is an employee if any of the following conditions are met:

Section 226, subdivision (a) of the Labor Code requires an employer to provide employees with “an accurate itemized statement” that includes: (1) gross wages earned; (2) total hours worked; (3) certain information for employees paid on a piece-rate basis; (4) all deductions; (5) net wages earned; (6) the pay period; (7) the employee’s name and identifying information; (8) “the name and address of the legal entity that is the employer”; and (9) all applicable hourly rates. “An employee suffering injury as a result of a knowing and intentional failure by an employer to comply with subdivision (a) is entitled to recover the greater of all actual damages or fifty dollars ($ 50) for the initial pay period in which a violation occurs and one hundred dollars ($ 100) per employee for each violation in a subsequent pay period, not to exceed an aggregate penalty of four thousand dollars ($ 4,000), and is entitled to an award of costs and reasonable attorney’s fees.” (§ 226, subd. (e)(1).) Injunctive relief and civil penalties are also available. (§§ 226, subd. (h), 226.3).

Section 510 of the Labor Code and the applicable IWC Wage Order require employers to pay overtime for hours worked beyond eight in a day and forty in a week (and double-time as provided in the statute and Wage Order).

Under PAGA, an aggrieved employee may bring a civil action personally and on behalf of other current or former employees and the state of California to recover civil penalties for Labor Code violations. Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, 380. Seventy-five percent of any PAGA penalties go to the LWDA, leaving the remaining 25 percent for the employees. Id. PAGA is intended to augment the limited enforcement capability of by empowering employees to enforce the Labor Code as representatives of the Agency. Id. at p. 383. A judgment in a PAGA action binds all those who would be bound by a judgment in an action brought by the government. Id. at 381.

Under the California Fair Employment and Housing Act (“FEHA”), an employer may not “discharge, expel, or otherwise discriminate against any person because the person opposed any practices forbidden under [FEHA] or because the person has filed a complaint, testified, or assisted in any proceeding under [FEHA].”  Cal. Gov. Code § 12940(h). 
FEHA retaliation claims follow the McDonnell-Douglas burden-shifting framework.  Yanowitz v. L’Oreal USA, Inc., 36 Cal.4th 1028, 1042 (2005).  To establish a prima facie case for retaliation, the employee must establish that (1) they engaged in an activity protected under FEHA, such as filing a discrimination claim; (2) the employer subjected them to adverse employment action; and (3) there was a causal connection between the employee’s protected activity and the employer’s adverse action.  Id.  Once the employee has established a prima facie case for retaliation, the burden shifts to the employer to provide a legitimate, nonretaliatory explanation for the adverse employment action.  Id.  Should the employer successfully rebut, the burden shifts back to the employee to prove intentional retaliation.  Id.