Running a business in California can be, for lack of a better term, tricky business. With a seemingly infinite number of employment-related laws, many of which oftentimes appear to contradict each other, many small, medium, and large sized business owners are often left with more questions than answers. Here, we break down some of the basic employment laws in California. For an in-depth discussion, reach out to experienced legal counsel.
Employees vs Independent Contractors
Perhaps one of the biggest employment issues in the state, the issue of whether a worker is an employee or is not, continues to plague employers – to the point of litigation.
If a business brings on a worker that they treat as a contractor (particularly in terms of benefits and other perks) but who meets the standards of being an employee under California employment law, a potential lawsuit, including a class action, can be on the horizon. Indeed, the individual who was misclassified is strongly protected under California law.
To determine whether someone is an employee instead of a contractor, there are certain guidelines. For more information on the employee vs independent contractor test, read this post.
California employers have the right to perform a drug test (and require that the potential employee pass the drug test) as a condition of employment and the employer must test all applicants for that particular job opening. However, it is important to take note of California’s “compassionate use” law which allows the use of medicinal marijuana.
Employees Have the Right to Access Their Personnel File
In California, employees have the right to access their personnel file and make copies of specific documents. Employees are also given the right to inspect their payroll records, too. If employees have signed any document at the request of the employer, they have the right to receive a copy. Former employees have the same rights as current employees in this respect.
Criminal Records and Job Applicants
Interviews can be delicate for employers. Under California employment law, employers may not ask applicants about a number of things, including:
· Prior arrests that did not result in conviction. Employers may not use those arrests as a basis in denying a job applicant.
· Sealed records. If an applicant has a sealed court record, the employer may not ask about it. The same applies for expunged or statutorily removed items.
· Minor marijuana convictions more than two years old.
· Participation in a diversion program. Employers may not ask about the applicant’s participation in a diversion program regardless of whether the program was pre- or post-trial.
· Juvenile records. As of January 1, 2017, employers may no longer ask applicants about their juvenile record; this includes arrest, detention, processing, or adjudication.
This is just the tip of the iceberg regarding California employment laws affecting business owners. For more information, or skilled guidance on a particular issue, contact experienced employment lawyer Drew E. Pomerance.