Employment Law Blog

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 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. 

The plaintiff’s prima facie burden in a retaliation case is to (1) show he or she engaged in a protected activity, (2) the employer subjected the employee to an adverse employment action, and (3) a causal link exists between the protected activity and the employer’s action. (McRae v. Dept. of Corr. & Rehab. (2006) 142 Cal. App. 4th 377, 386). Once the plaintiff has established a prima facie case of retaliation, the defendant must provide a legitimate, nonretaliatory explanation. The burden then shifts back to the plaintiff to show this explanation is merely a pretext for the retaliation. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68–9.)
An employer is prohibited from retaliating against a complainant who made “a bona fide oral or written complaint to his employer of unsafe working conditions, or work practices, in his employment or place of employment.” (Labor Code § 6310(b).) In order to be protected against discharge, a complainant need only make a good faith complaint about working conditions that he believes to be unsafe. (Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101, 109; Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 299.)

To establish a prima facie case of retaliation, a plaintiff must show that (1) they engaged in a protected activity, (2) that they were thereafter subjected to adverse employment action by their employer, and (3) there was a causal link between the two.  Iwekaogwu v. City of Los Angeles, 75 Cal.App.4th 803, 814 (1999), quoting Flait v. North American Watch Corp., 3 Cal.App.4th 467, 476 (1992).

In order to be protected against discharge, a complainant need only make a good faith complaint about working conditions that they believes to be unsafe. Cabesuela v. Browning-Ferris Industries of California, Inc., 68 Cal.App.4th 101, 1009 (1998) [emphasis added].  An employer is prohibited from retaliating against a complainant who made “a bona fide oral or written complaint to [their] employer of unsafe working conditions, or work practices, in [their] employment or place of employment.” Labor Code § 6310(b) [emphasis added].

The test for whether a worker is an independent contractor or an employee is whether the employer has the right to control the manner and means of the worker’s performance.  S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 349–351.  A number of different factors contribute to the extent of control that an employer exercises over its workers: (1) the right to discharge at will, without cause; (2) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; (3) the length of time for which the services are to be performed; (4) the method of payment, whether by the time or by the job; (5) whether the one performing services is engaged in a distinct occupation or business; and (6) whether or not the work is part of the regular business of the principal.  Id.

The Fair Employment and Housing Act (“FEHA”) requires that an employer provide reasonable accommodations that allow an employee to perform the essential functions of their job. Gov. Code §12940(m). Where a failure to accommodate was a “substantial factor” in causing the exacerbation of a workplace injury, the employer may recover damages for that exacerbation. See Huffman v. Interstate Brands Corp. (2004) 121 Cal.App.4th 679, 698-699; Fussell v. Timec Company, Inc. (2014) 2014 WL 810917 at *9-13; Bagatti v. Department of Rehabilitation(2002) 97 Cal.App.4th 344, 356-358.

California Labor Code section 510 requires employers to pay overtime compensation for hours worked over 8 per day and 40 per week. An employer may avoid paying overtime for hours worked over 8 per day by adopting a valid Alternative Workweek Schedule. The procedures for adopting a valid AWS are set forth in Labor Code § 511 and the relevant Industrial Welfare Commission (“IWC”) Wage Order No. 4 at California Code of Regulations, title 8, § 11040, subd. 3(B). Among other things, the law requires an employer to hold a secret ballot election regarding the AWS amongst its employees and to file the results of the election with the State.

The California Fair Employment and Housing Act (“FEHA”) requires employers to reasonably accommodate their employees’ known disabilities and to engage in a “timely, good faith, interactive process” in order to determine effective reasonable accommodations. Government Code section 12940, subd. (m), (n).

California state laws require that all non-exempt employees be compensated at time-and-a-half for all hours worked over 8 hours per day and 40 hours in a week. See California Labor Code section 510(a) and Industrial Welfare Commission (“IWC”) Wage Order, Order No. 7-2001 section 3(A). The law further requires employers to maintain accurate time records for all of the hours worked by its employees, provide accurate itemized wage statements, authorize, permit and provide meal and rest periods, and pay all wages earned to an employee immediately upon their termination.