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Employment Laws in California

Filed under Office & HR.

Employers in California must conform to these state rules relating to the employment relationship.

An employee is an individual under the direction and control of an employer under an appointment or contract of hire or apprenticeship, express or implied, oral or written.

Employee does not include:

  • an individual employed by his or her parents, spouse or child
  • a person employed under a special license in a nonprofit sheltered workshop or rehabilitation facility
  • an independent contractor

Employer includes a person regularly employing five or more individuals, including individuals performing any service under an appointment, contract of hire or apprenticeship, express or implied, oral or written, or an agent of an employer and the state or any political or civil subdivision of the state.

Employer does not include a religious association or nonprofit corporation, except a religious association or corporation not organized for private profit.

Prohibited Employment Discrimination

Employers must hire, promote, select for training, and conduct their other employment-related activities, including compensation, without regard to:

  • race
  • religion
  • color
  • national origin
  • ancestry
  • physical disability
  • mental disability
  • medical condition
  • marital status
  • sex
  • actual or perceived sexual orientation
  • participation in politics
  • becoming a candidate for public office

Discrimination based on sex, prohibited under the Fair Employment and Housing Act, includes breastfeeding and medical conditions related to breastfeeding.

Age. It is an unlawful employment practice for an employer to refuse to hire or employ, or to discharge, dismiss, reduce, suspend or demote any individual over the age of 40 on the ground of the individual's age.

Pregnancy, childbirth and related medical conditions. Employers must promote or select for training program without regard to pregnancy, childbirth or related medical condition of any female employee, provided she is able to complete the training program at least three months prior to the anticipated date of her pregnancy leave. With regard to pregnancy, childbirth or related medical condition, employers may not discharge from employment or a training program, or otherwise discriminate against in compensation, terms or conditions of employment any female employee.

Military and veteran status. Protection from employment discrimination is extended to the category of military or veteran status.

Assignment orders. Employers may not use an assignment order as grounds for denying an employee a promotion or for taking any other action adversely affecting employment.

Civil Air Patrol. Employers who employ more than 15 employees are prohibited from discriminating and discharging from employment a member of the Civil Air Patrol because of such membership and will not hinder or prevent a member from performing service as part of the California Wing of the Civil Air Patrol during an emergency operational mission.

Pre-employment inquiries and exams. It is unlawful for employers to require any medical or psychological inquiry of an employee or an applicant before or after an offer of employment has been made unless it relates to the ability to perform job-related functions, is consistent with business necessity and all entering employees in the same job classification are subject to the same exam or inquiry.

Language. It is unlawful for employers to adopt or enforce a policy that limits or prohibits the use of any language in any workplace unless the language restriction is justified by a business necessity and the employer has notified its employees of the circumstances and the time when the language restriction is required to be observed and of the consequence for violating the language restriction.

Genetic tests. It is unlawful for employers to subject any employee, applicant, or other person to a test for the presence of a genetic characteristic unless based upon a bona fide occupational qualification or applicable security regulations established by the U.S. or California.

Whistleblower retaliation. Employers may not discharge, expel, or otherwise discriminate against a person because the person opposes any unlawful employment practices or files a complaint, testifies, or assists in any enforcement proceeding.

A health facility is prohibited from discriminating or retaliating against an employee, a member of the facility's medical staff, or other health care worker of the facility because the person has presented a grievance, complaint, or has initiated, participated, or cooperated in an investigation or administrative proceeding relating to the quality of care, services, or conditions of the facility.

Disability. It is unlawful for employers to deny or to aid, incite, or conspire in the denial of the rights of individuals with disabilities, including the right to be accompanied by a guide dog, signal dog, or service dog.

Volunteer firefighters. An employer may not discharge or discriminate against an employee for taking time off to perform emergency duty as a volunteer firefighter, a reserve peace officer, or emergency rescue personnel.

Gender identity. Employers are prohibited from discriminating against an individual based on gender identity, appearance and behavior. Employers may require employees to comply with reasonable workplace appearance, grooming, and dress standards consistent with federal and state law, provided that employees are permitted to appear or dress consistently with their gender identity.

Pharmacists. Pharmacists who object to dispensing emergency contraception prescription drugs on the basis of their personal religious beliefs must notify their employers of their position in writing, and employers must establish protocols to ensure that patients have timely access to the prescribed drugs.

Sexual harassment training. Employers with 50 or more employees are required to provide two hours of sexual harassment training and education to supervisory employees once every two years. Also, employers must incorporate the training into the 80 hours of training provided to all new supervisory employees, using existing resources.

Identification devices. An individual, business association, partnership, limited partnership, corporation, limited liability company, trust, estate, cooperative association, or other entity, is prohibited from requiring, coercing, or compelling any other individual to undergo the subcutaneous implanting of an identification device.

Medical records. A business organized for the purpose of maintaining medical information in order to make the information available to an individual or to a provider of health care for purposes of allowing the individual to manage his or her information or for the diagnosis and treatment of the individual, is required to maintain the same standards of confidentiality required of a provider of health care with respect to medical information disclosed to the business.

Same-sex marriage. Marriages of same-sex couples that occurred prior to November 5, 2008 continue to be valid.

Display of symbols. A person is prohibited from terrorizing another by displaying certain symbols, including, but not limited to, a Nazi swastika, on private property and also prohibits a person from burning, desecrating or destroying a cross or other religious symbol on private property for the purpose of terrorizing any person who works there. A person is prohibited from hanging a noose with the intent to terrorize a person at a place of employment or on private property.

Organ and bone marrow donation leave. Employers are prohibited from:

  • interfering with an employee taking leave
  • retaliating against an employee taking leave
  • retaliating against an employee opposing an unlawful employment practice related to organ or bone marrow donation leave

An employer must restore an employee returning from leave for organ or bone marrow donation to the same position held by the employee or an equivalent position.

Credit reports. Effective January 1, 2012, employers may not use credit reports to evaluate current or prospective employees, except in circumstances where a position is managerial or law enforcement, or if the position requires handling sensitive information or valuables over $10,000.

Religious clothing and hairstyles. The practice of wearing religious clothing or a religious hairstyle as a belief of observance is covered by protections under the Fair Employment and Housing Act.

Email and social media access. Employers are prohibited from requiring that employees and job applicants divulge user names, passwords or any other information related to social media accounts. Employers may not discipline or discharge employees who refuse to provide social media information. This restriction does not apply to passwords or other information used to access electronic devices issued by employers or infringe on employers' rights and obligations to investigate workplace misconduct.

Citizenship and immigration status. An employer’s business license may be suspended or revoked for retaliation against employees on the basis of citizenship and immigration status. A civil penalty of up to $10,000 may also be applied for each violation.

Time-off for crime victims. Employers are prohibited from discriminating against crime victims of specific offenses for taking time off from work.

Employers are prohibited from taking adverse employment action against a victim of domestic violence, sexual assault, or stalking, who takes time off from work to attend to issues arising as a result of the domestic violence, sexual assault, or stalking, so long as the employee complies with certain conditions.

Recordkeeping Requirements

Employers that are subject to California's anti-discrimination in employment laws must maintain and preserve any and all job applications, personnel, membership or employment referral records and files for a minimum period of two years after the records and files are initially created or received.

Employers must retain personnel files of applicants or terminated employees for a minimum period of two years after the employment action — failure to hire or termination — was taken.

If a verified complaint is filed against an employer, it must retain and preserve these records and files until the complaint is fully and finally disposed of, including all appeals.

Posting Requirements

The California Fair Employment and Housing Commission requires that an equal employment opportunity poster be displayed in a prominent and accessible location in the workplace by every California employer.

Employers must post prominently and distribute in a manner to assure notice to all employees the Department of Fair Employment and Housing's sexual harrassment policy.

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