Many employers think the California Labor Code deals only with the manner and method of paying employees. However, the Labor Code also contains a variety of anti-discrimination and other provisions. Indeed, Section 98.7 of the Labor Code sets forth a detailed procedure for the investigation of discrimination claims arising under the Labor Code by the Division of Labor Standards Enforcement (DLSE). These procedures are separate and distinct from the procedures followed by the Department of Fair Employment and Housing (DFEH) for claims of discrimination brought under the Fair Employment and Housing Act (FEHA). This commentary identifies this and other less well-known provisions in the Labor Code and attempts to acquaint employers with them.

The California Labor Code Contains a Number of Anti-Discrimination Provisions

Scattered throughout the Labor Code are various sections that make it illegal to discriminate or retaliate against an employee for exercising various rights provided by law. These provisions include:

1. Filing with the Labor Commissioner. Section 98.6 makes it illegal to discriminate against an employee because he or she has filed a claim with the Labor Commissioner, participated in a Labor Commissioner hearing, or contacted the Labor Commissioner.
2. Workers Compensation. Section 132(a) makes it unlawful to discriminate against workers who are injured in the course and scope of work. A violation of this section makes the employer guilty of a misdemeanor.
3. Alcohol and Drug Rehabilitation. Sections 1025 through 1028 of the Labor Code make it illegal for an employer who regularly employs more than 25 employees to retaliate against an employee because he or she is voluntarily participating in an alcohol or drug rehabilitation program. However, an employer is not prohibited from refusing to hire a prospective employee or discharging a current employee who is unable to perform the duties of the job or cannot perform them in a safe manner because of current use of alcohol or drugs.
4. Employee Literacy. Under Sections 1040 through 1044, employers with 25 or more employees must reasonably accommodate and assist any employee who reveals a literacy problem and requests assistance from the employer, unless it would cause the employer undue hardship. Creating an exception to the California Labor Code's presumption of at-will employment, Section 1044 expressly prohibits an employer from terminating an employee who reveals illiteracy if he or she still satisfactorily performs work.
5. Political Activities/Government Claims. Section 1102 makes it illegal to retaliate against an employee for engaging in political activity or holding particular political views.
6. Sexual Orientation. Section 1102.1 prohibits discrimination in employment because of actual or perceived sexual orientation. Religious employers are exempt from this section.
7. Sex-Based Wage Differentials. Section 1197.5 makes it illegal to discriminate in the payment of wages on the basis of sex. The jobs must require equal skill, effort, and responsibility and be performed under similar working conditions. Differential pay is permitted when based: (1) on a seniority or merit system,; (2) on a system which measures earnings by quantity or quality of production; or (3) on a bona fide factor other than sex.
8. Jury Duty. Section 230 makes it illegal to discriminate against an employee who serves on jury duty or appears in court as a witness.
9. School Visits. Section 230.8 protects parents who take off four (4) hours each school year, per child, to visit their child's elementary school, if the parent is employed by an employer who employs more than 25 employees.
10. Wage Discussions. Under Section 232, employees may discuss or compare wages, hours, and working conditions with other employees without suffering retribution.
11. Safety Complaints. Sections 6310, 6311, and 6399.7 prohibit an employer from discriminating against an employee who makes a safety-related complaint or refuses to work under conditions reasonably believed to be unsafe by the employee, or who participates in any proceeding relating to the employer's failure to safeguard the health and safety of its employees with respect to hazardous materials.

Other Causes of Action Found in the Labor Code

1. Fraud. Section 970 prohibits a person from inducing another person "to change from one place to another" within the state, from outside the state, or to leave the state for the purpose of changing jobs with knowingly false representations. An employer, or its officers or agents, who violates Section 970 is guilty of a misdemeanor punishable by fine between fifty dollars ($50) and one thousand dollars ($1,000) and/or imprisonment for not more than six (6) months. Labor Code § 971. Any employer or its agents who violate Section 970 also may be liable for double damages. Labor Code § 972.
2. Interference with Employee's Attempts to Obtain Future Employment. An employer who prevents or attempts to prevent a former employee from obtaining future employment is guilty of a misdemeanor. Labor Code § 1050. However, an employer may provide a truthful statement for the reasons concerning the discharge or voluntary termination upon a special request for such a reference. Labor Code § 1053.

Miscellaneous Provisions

1. Death. In case there is any doubt, the death of an employee terminates the employment relationship. Labor Code § 2920(c).
2. Mandatory Day Off. Every employee is entitled to one day's rest out of seven. Labor Code §§ 550-552.
3. Duty of Care. You are not required to perform volunteer services. But if you do volunteer, you have to use slight care and diligence. Labor Code § 2850.
4. Employment Applications. An employer who requires employees or applicants to sign an application for employment form must file the form with the DLSE. Labor Code § 431.
5. Wearing Union Buttons Without Permission. Any person who willfully wears the button of any labor union - unless entitled to wear the button under the rules of the union -- is guilty of a misdemeanor punishable by a fine of forty dollars ($40) and/or imprisonment of not more than twenty (20) days in county jail. Labor Code § 1018.
6. Access to Employer's Premises. The Labor Commissioner and all his/her deputies and agents shall have free access to all places of labor. To refuse access or refuse to furnish statistics or information pertaining to their lawful duties is a misdemeanor, punishable by a fine of not more than one thousand dollars ($1,000). Labor Code § 1174(b).
7. Access to Personnel Records. Sections 226, 432, and 1198.5 of the Labor Code allow employees access to or copies of various parts of their personnel records. Section 226 requires an employer to provide copies of deductions statements upon request to current or former employees. Section 432 requires employers to give employees or applicants, upon request, any instrument relating to the obtaining or holding of employment when that person is required to sign the instrument. Section 1198.5 requires employers to allow employees access at reasonable intervals for the purpose of inspecting personnel files which have been used or are being used to determine the employee's qualifications for employment, promotion, additional compensation, or termination or other disciplinary action.
8. Check Payment for Wages. Section 212 requires that any payment for wages due must be paid in cash or by a negotiable instrument (e.g., check) which is negotiable or payable upon demand, without discount, at an established place of business in the state. Payment by any instrument redeemable in merchandise or other form other than money is prohibited. Direct deposit is expressly authorized by Section 213(d).
9. Record Keeping. Section 1174 requires employers to keep a record showing all the names and addresses of all their employees as well as the ages of any minors working for them. Employers must also maintain payroll records showing the daily hours worked and wages paid to employees for a period of two years. These records must be kept at a central location within the state or at the locations at which the employees are employed. At the request of the IWC, employers are required to provide it with information the IWC requires to carry out its duties.
10. Expense Reimbursement. Under Section 2802, an employee is entitled to reimbursement for any expenses he or she incurs as a direct consequence of discharging his or her duties or obeying the directions of his or her employer. The employee is entitled to reimbursement even if obeying the employer's directions is unlawful, unless the employee believes the actions to be unlawful at the time he or she carries out the employer's instructions.

An employer's obligation under Section 2802 has been broadly interpreted. Even when an employee furnishes his or her own tools, an employer has been required to reimburse the employee for tools stolen from the employer's premises during a weekend burglary when it is impractical for the employee to bring the tools back and forth from home. Machinists Automotive Trades Dist. Lodge v. Utility Trailers Sales Co., 141 Cal. App. 3d 80 (1983). But see Earll v. McCoy, 116 Cal. App. 2d 44 (1953) [employer not required to pay for tools lost in fire at employer's premises if employee not required to leave tools at the premises].

---

The Labor Code contains many detailed provisions with which many employers may not be fully familiar. Moreover, the Labor Code is constantly changing and is likely to be significantly amended in the years ahead with the new Administration. In a future Commentary, we will detail the significant changes which will be effective January 1, 2000.