For the last several years, my team and I have annually distributed a Employment Law Cause of Action checklist to California Attorneys. Below is a list of the lesser-known causes of action which every litigator should know about. Special thanks to Navid Kanani for his assistance in editing this special list. Given the wide reach of employment laws and its effect on us all, this is a resource that needs to be shared within the legal community. I welcome any questions regarding this list or employment law. This list is illustrative, not exhaustive.
Hiring, Termination, and Contractual
- Tortious Constructive Discharge
- Wrongful Demotion (Scott v. PG&E (1995) 11 Cal.4th 454)
- Unruh Civil Rights Act (Civ. C. §51 et seq (contractor)
Fair Employment and Housing Act Violations
- Extends the statute of limitations for FEHA claims from one to three years eff. 1/1/20. Last adverse employment action giving rise to a claim must have occurred on or after 1/1/19 for this law to apply. (Govt. C.§12960 & 12965)
- Aiding & Abetting (Govt. C.§12490(i))
- Leave Time
- Military Duty or Training (Mil. & Vet. C.§394)
- Kin Care Leave (Lab. C.§233)
Miscellaneous Related Torts & Statutory Violations
- Civil Conspiracy/Aiding and Abetting to violate [add tort] (not freestanding, must pair with violation of a law)
- Invasion of Privacy (Cal. Const., Article 1, §1 &C/L)
- Civil Code 3339 Immigration status not admissible in determining empl. damages
Labor Code Violations & Other Related Claims
- 201 Wages due on termination (immediate)
- 202 Wages due on quitting (72hours)
- 210 Willful failure to pay – private right of action eff. 1/1/20
- 216.5 Forced to sign release for wages due
- 218.5 Atty fees for non-payment of wages
- 221 Illegal collection back from EE of wages paid
- 226 Penalty/remedy due to ER’s failure to provide specified info on wage statements; ER must provide copy of payroll records to EE upon request
- 226.3 Wage statement penalties – PAGA only
- 226.7 Missed meal/rest periods – 1 hr premium/day
- 227.3 Vacation time due at termination
- 232 Illegal to refuse to allow EEs to discuss wages or to discharge/retaliate against EEs for discussing wages
- 351 Makes it illegal to take tips from EE – PAGA only
- 432 Allows EE to get copy of any writing signed
- 432.5 Can’t force EE to sign agmt prohibited by law
- 432.7 Can’t require applicant to disclose arrest not resulting in conviction or dismissed or info re a referral or participation in pre/post- trial diversion program, conviction & adjudication as a juvenile. ER may only consider particular convictions when assessing EE’s criminal history. Provides for attorneys’ fees.
- 432.8 Protects EE from disclosing marijuana possession conviction more than two years old
- 435 No audio/video recording EE bathroom, changing room
- 510 Workday 8 hours, overtime 1.5 after 8
- 512 Meal periods
- 515(d) Non-exempt EEs paid OT after 40 hrs/wk, 8 hrs/day
- 558 OT penalties
- 558.1 Owner/director/managing agent of corp potentially liable for certain W&H violations
- 925 Can’t require CA EE to resolve disputes outside CA/ apply non-CA law except empl. contract negotiated by atty
- 970 Misrepresentation re kind, nature or duration, inducing EE to move for purpose of work; double damages per LC 972
- 980 Restricts ER requesting access to EE/applicant’s social media
- 1019.1 Prohibits retaliation for opposing unfair immigration-related practice. ER can’t request more or different documents than required under federal law
- 1050 Misrepresentation to potential new EEs
- 1171.5 Immigration status irrelevant to Labor Code rights
- 1182.12 Min wage $13/hr 1/1/20; $15/hr 1/1/22
- 1194 Authorizes civil action regardless of agreement to contrary re min & OT wages due
- 1197.5 Prohibits wage inequality based on gender/race for substantially similar work (prior compensation irrelevant)
- 1198.3 Protects EE who refuses to work hrs in excess of those permitted by IWC orders
- 1198.5 Reqs inspection of personnel records w/in 30 days written request ($750 penalty) (combine request with LC 432 (documents signed) and LC 226 (payroll records)
- 2699 et seq Private Attorney General Act (PAGA)
- 2751 Commission agmts must be in writing
- 2802 EE is indemnified for business expenses
- 2856 Excuses noncompliance with illegal orders
- 2929 No termination for EE’s judgment’s garnishment
- 6310 No discrimination against EE for safety complaints to gov’t (note: complaint to ER is complaint to the gov’t)
- 6311 No discharge for refusing to work in violation of Cal OSHA
- 6402 No ER shall require or permit any EE to be in place of employment which is not safe and healthful
- 6404 No ER shall occupy or maintain any place of employment that is not safe and healthful
- 6405 No ER shall construct unsafe premises
- IWC Orders (min. wages, max hrs and OT), max rent charges for apt managers
- Health & Safety C. §118600 requires businesses & gov’t agency to provide single-user, all-gender restroom facility
- 1030,1031,1033,1034 Lactation Accommodation
