Article 2. Obligations Of Employer of California Labor Code >> Division 3. >> Chapter 2. >> Article 2.
An employer shall in all cases indemnify his employee for
losses caused by the employer's want of ordinary care.
An employer shall in all cases take reasonable and
necessary precautions to safeguard musical instruments and equipment,
belonging to an employed musician, located on premises under the
employer's control. In the event such equipment is damaged or stolen
as a result of the employer's failure or refusal to take such
reasonable and necessary precautions, the employer shall be liable to
the owner for repair or replacement thereof if the employed musician
has taken reasonable and necessary precautions to safeguard the
musical instruments and equipment.
For the purposes of this section: (a) "employer" includes a
purchaser of services and the owner of premises upon which an
employed musician is working; and (b) "employee" is any employed
musician working on premises which are under an employer's control.
(a) Any employer, employee association, or other entity
otherwise providing hospital, surgical, or major medical benefits to
its employees or members is solely responsible for notification of
its employees or members of the conversion coverage made available
pursuant to Part 6.1 (commencing with Section 12670) of Division 2 of
the Insurance Code or Section 1373.6 of the Health and Safety Code.
(b) Any employer, employee association, or other entity, whether
private or public, that provides hospital, medical, or surgical
expense coverage that a former employee may continue under Section
4980B of Title 26 of the United States Code, Section 1161 et seq. of
Title 29 of the United States Code, or Section 300bb of Title 42 of
the United States Code, as added by the Consolidated Omnibus Budget
Reconciliation Act of 1985 (Public Law 99-272), and as may be later
amended (hereafter "COBRA"), shall, in conjunction with the
notification required by COBRA that COBRA continuation coverage will
cease and conversion coverage is available, and as a part of the
notification required by subdivision (a), also notify the former
employee, spouse, or former spouse of the availability of the
continuation coverage under Section 1373.621 of the Health and Safety
Code, and Sections 10116.5 and 11512.03 of the Insurance Code.
(c) On or after July 1, 2006, notification provided to employees,
members, former employees, spouses, or former spouses under
subdivisions (a) and (b) shall also include the following
notification:
"Please examine your options carefully before declining this
coverage. You should be aware that companies selling individual
health insurance typically require a review of your medical history
that could result in a higher premium or you could be denied coverage
entirely."
Any employer, other than a self-insurer, employee
association or other entity otherwise providing hospital, surgical or
major medical benefits to its employees or members shall also make
available conversion coverage which complies with the provisions of
Part 6.1 (commencing with Section 12670) of Division 2 of the
Insurance Code and Section 1373.6 of the Health and Safety Code.
In any action to recover damages for a personal injury
sustained within this State by an employee while engaged in the line
of his duty or the course of his employment as such, or for death
resulting from personal injury so sustained, in which recovery is
sought upon the ground of want of ordinary or reasonable care of the
employer, or of any officer, agent or servant of the employer, the
fact that such employee has been guilty of contributory negligence
shall not bar a recovery therein where his contributory negligence
was slight and that of the employer was gross, in comparison, but the
damages may be diminished by the jury in proportion to the amount of
negligence attributable to such employee.
It shall be conclusively presumed that such employee was not
guilty of contributory negligence in any case where the violation of
any law enacted for the safety of employees contributed to such
employee's injury.
It shall not be a defense that:
(a) The employee either expressly or impliedly assumed the risk of
the hazard complained of.
(b) The injury or death was caused in whole or in part by the want
of ordinary or reasonable care of a fellow servant.
No contract, or regulation, shall exempt the employer from any
provisions of this section.
(a) An employer shall indemnify his or her employee for all
necessary expenditures or losses incurred by the employee in direct
consequence of the discharge of his or her duties, or of his or her
obedience to the directions of the employer, even though unlawful,
unless the employee, at the time of obeying the directions, believed
them to be unlawful.
(b) All awards made by a court or by the Division of Labor
Standards Enforcement for reimbursement of necessary expenditures
under this section shall carry interest at the same rate as judgments
in civil actions. Interest shall accrue from the date on which the
employee incurred the necessary expenditure or loss.
(c) For purposes of this section, the term "necessary expenditures
or losses" shall include all reasonable costs, including, but not
limited to, attorney's fees incurred by the employee enforcing the
rights granted by this section.
(d) In addition to recovery of penalties under this section in a
court action or proceedings pursuant to Section 98, the commissioner
may issue a citation against an employer or other person acting on
behalf of the employer who violates reimbursement obligations for an
amount determined to be due to an employee under this section. The
procedures for issuing, contesting, and enforcing judgments for
citations or civil penalties issued by the commissioner shall be the
same as those set forth in Section 1197.1. Amounts recovered pursuant
to this section shall be paid to the affected employee.
When death, whether instantaneously or otherwise, results
from an injury to an employee caused by the want of ordinary or
reasonable care of an employer or of any officer, agent, a servant of
the employer, the personal representative of such employee shall
have a right of action therefor against such employer, and may
recover damages in respect thereof, for and on behalf of the
surviving spouse, children, dependent parents, and dependent brothers
and sisters, in order of precedence as stated, but no more than one
action shall be brought for such recovery.
(a) Any employer providing health benefits under the
Employee Retirement Income Security Act of 1974 (29 U.S.C. Sec. 1001,
et seq.) shall not provide an exception for other coverage where the
other coverage is entitlement to Medi-Cal benefits under Chapter 7
(commencing with Section 14000) or Chapter 8 (commencing with Section
14200) of Part 3 of Division 9 of the Welfare and Institutions Code,
or medicaid benefits under Subchapter 19 (commencing with Section
1396) of Chapter 7 of Title 42 of the United States Code. Any
employer providing health benefits under the Employee Retirement
Income Security Act of 1974 shall not provide an exception for the
Medi-Cal or medicaid benefits.
(b) Any employer providing health benefits under the Employee
Retirement Income Security Act of 1974 shall not provide that the
benefits payable are subject to reduction if the individual insured
has entitlement to Medi-Cal or medicaid benefits.
(c) Any employer providing health benefits under the Employee
Retirement Income Security Act of 1974 shall not provide an exception
for enrollment for benefits because of an applicant's entitlement to
Medi-Cal benefits under Chapter 7 (commencing with Section 14000) or
Chapter 8 (commencing with Section 14200) of Part 3 of Division 9 of
the Welfare and Institutions Code, or medicaid benefits under
Subchapter 19 (commencing with Section 1396) of Chapter 7 of Title 42
of the United States Code.
(d) The State Department of Health Services shall consider health
benefits available under the Employee Retirement Income Security Act
of 1974 in determining legal liability of any third party for medical
expenses incurred by a Medi-Cal or medicaid recipient under Section
14124.90 of the Welfare and Institutions Code and Subchapter 19
(commencing with Section 1396) of Chapter 7 of Title 42 of the United
States Code.
Any employer who offers health care coverage, including
employers and insurers, shall comply with the standards set forth in
Chapter 7 (commencing with Section 3750) of Part 1 of Division 9 of
the Family Code and Section 14124.94 of the Welfare and Institutions
Code.
Any contract or agreement, express or implied, made by any
employee to waive the benefits of this article or any part thereof,
is null and void, and this article shall not deprive any employee or
his personal representative of any right or remedy to which he is
entitled under the laws of this State.
(a) No employer, whether private or public, shall discontinue
coverage for medical, surgical, or hospital benefits for employees
unless the employer has notified and advised all covered employees in
writing of any discontinuation of coverage, inclusive of nonrenewal
and cancellation, but not inclusive of employment termination or
cases in which substitute coverage has been provided, at least 15
days in advance of such discontinuation.
(b) If coverage is provided by a third party, failure of the
employer to give the necessary notice shall not require the third
party to continue the coverage beyond the date it would otherwise
terminate.
(c) This section shall not apply to any employee welfare benefit
plan that is subject to the Employee Retirement Income Security Act
of 1974.
(a) All employers, whether private or public, shall provide
notification to former employees, along with the notification
required by federal law pursuant to the Consolidated Omnibus Budget
Reconciliation Act of 1985 (Public Law 99-272), of the availability
of continued coverage for medical, surgical, or hospital benefits, a
standardized written description of the Health Insurance Premium
Program established by the State Department of Health Services
pursuant to Section 120835 of the Health and Safety Code and Section
14124.91 of the Welfare and Institutions Code. The employer shall
utilize the standardized written description prepared by the State
Department of Health Services pursuant to subdivision (b).
(b) The State Department of Health Services shall prepare and make
available, on request, a standardized written description of the
Health Insurance Premium Program, at cost.
(a) It is the responsibility of all employers, whether public
or private, to provide to all eligible employees an outline of
coverage or similar explanation of all benefits provided under
employer-sponsored health coverage, including, but not limited to,
provider information for health maintenance organizations and
preferred provider organizations.
(b) All employers, whether public or private, shall provide to
employees, upon termination, notification of all continuation,
disability extension, and conversion coverage options under any
employer-sponsored coverage for which the employee may remain
eligible after employment with that employer terminates.
(a) Any employer, whether private or public, that offers its
employees an employer-managed deferred compensation plan shall
provide to each employee, prior to the employee's enrollment in the
plan, written notice of the reasonably foreseeable financial risks
accompanying participation in the plan, historical information to
date as to the performance of the investments or funds available
under the plan, and an annual balance sheet, annual audit, or similar
document that describes the employer's financial condition as of a
date no earlier than the immediately preceding year.
(b) Within 30 days after the end of each quarter of the calendar
year, the employer, who directly manages the investments of a
deferred compensation plan, shall provide, to each employee enrolled
in a deferred compensation plan offered by the employer, a written
report summarizing the current financial condition of the employer,
summarizing the financial performance during the preceding quarter of
each investment or fund available under the plan, and describing the
actual performance of the employee's funds that are invested in each
investment or fund in the plan.
(c) The obligations described in subdivisions (a) and (b) may be
performed by a plan manager designated by the employer, who may
contract with an investment manager for that purpose.
(d) If an employee is enrolled in a deferred compensation plan
that is self-directed through a financial institution, the
requirements set forth in this section shall be deemed to have been
met.
(a) A person or entity shall not enter into a contract or
agreement for labor or services with a construction, farm labor,
garment, janitorial, security guard, or warehouse contractor, where
the person or entity knows or should know that the contract or
agreement does not include funds sufficient to allow the contractor
to comply with all applicable local, state, and federal laws or
regulations governing the labor or services to be provided.
(b) There is a rebuttable presumption affecting the burden of
proof that there has been no violation of subdivision (a) where the
contract or agreement with a construction, farm labor, garment,
janitorial, security guard, or warehouse contractor meets all of the
requirements in subdivision (d).
(c) Subdivision (a) does not apply to a person or entity who
executes a collective bargaining agreement covering the workers
employed under the contract or agreement, or to a person who enters
into a contract or agreement for labor or services to be performed on
his or her home residences, provided that a family member resides in
the residence or residences for which the labor or services are to
be performed for at least a part of the year.
(d) To meet the requirements of subdivision (b), a contract or
agreement with a construction, farm labor, garment, janitorial,
security guard, or warehouse contractor for labor or services shall
be in writing, in a single document, and contain all of the following
provisions, in addition to any other provisions that may be required
by regulations adopted by the Labor Commissioner from time to time:
(1) The name, address, and telephone number of the person or
entity and the construction, farm labor, garment, janitorial,
security guard, or warehouse contractor through whom the labor or
services are to be provided.
(2) A description of the labor or services to be provided and a
statement of when those services are to be commenced and completed.
(3) The employer identification number for state tax purposes of
the construction, farm labor, garment, janitorial, security guard, or
warehouse contractor.
(4) The workers' compensation insurance policy number and the
name, address, and telephone number of the insurance carrier of the
construction, farm labor, garment, janitorial, security guard, or
warehouse contractor.
(5) The vehicle identification number of any vehicle that is owned
by the construction, farm labor, garment, janitorial, security
guard, or warehouse contractor and used for transportation in
connection with any service provided pursuant to the contract or
agreement, the number of the vehicle liability insurance policy that
covers the vehicle, and the name, address, and telephone number of
the insurance carrier.
(6) The address of any real property to be used to house workers
in connection with the contract or agreement.
(7) The total number of workers to be employed under the contract
or agreement, the total amount of all wages to be paid, and the date
or dates when those wages are to be paid.
(8) The amount of the commission or other payment made to the
construction, farm labor, garment, janitorial, security guard, or
warehouse contractor for services under the contract or agreement.
(9) The total number of persons who will be utilized under the
contract or agreement as independent contractors, along with a list
of the current local, state, and federal contractor license
identification numbers that the independent contractors are required
to have under local, state, or federal laws or regulations.
(10) The signatures of all parties, and the date the contract or
agreement was signed.
(e) (1) To qualify for the rebuttable presumption set forth in
subdivision (b), a material change to the terms and conditions of a
contract or agreement between a person or entity and a construction,
farm labor, garment, janitorial, security guard, or warehouse
contractor must be in writing, in a single document, and contain all
of the provisions listed in subdivision (d) that are affected by the
change.
(2) If a provision required to be contained in a contract or
agreement pursuant to paragraph (7) or (9) of subdivision (d) is
unknown at the time the contract or agreement is executed, the best
estimate available at that time is sufficient to satisfy the
requirements of subdivision (d). If an estimate is used in place of
actual figures in accordance with this paragraph, the parties to the
contract or agreement have a continuing duty to ascertain the
information required pursuant to paragraph (7) or (9) of subdivision
(d) and to reduce that information to writing in accordance with the
requirements of paragraph (1) once that information becomes known.
(f) A person or entity who enters into a contract or agreement
referred to in subdivisions (d) or (e) shall keep a copy of the
written contract or agreement for a period of not less than four
years following the termination of the contract or agreement. Upon
the request of the Labor Commissioner, any person or entity who
enters into the contract or agreement shall provide to the Labor
Commissioner a copy of the provisions of the contract or agreement,
and any other documentation, related to paragraphs (1) to (10),
inclusive, of subdivision (d). Documents obtained pursuant to this
section are exempt from disclosure under the California Public
Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7
of Title 1 of the Government Code).
(g) (1) An employee aggrieved by a violation of subdivision (a)
may file an action for damages to recover the greater of all of his
or her actual damages or two hundred fifty dollars ($250) per
employee per violation for an initial violation and one thousand
dollars ($1,000) per employee for each subsequent violation, and,
upon prevailing in an action brought pursuant to this section, may
recover costs and reasonable attorney's fees. An action under this
section shall not be maintained unless it is pleaded and proved that
an employee was injured as a result of a violation of a labor law or
regulation in connection with the performance of the contract or
agreement.
(2) An employee aggrieved by a violation of subdivision (a) may
also bring an action for injunctive relief and, upon prevailing, may
recover costs and reasonable attorney's fees.
(h) The phrase "construction, farm labor, garment, janitorial,
security guard, or warehouse contractor" includes any person, as
defined in this code, whether or not licensed, who is acting in the
capacity of a construction, farm labor, garment, janitorial, security
guard, or warehouse contractor.
(i) (1) The term "knows" includes the knowledge, arising from
familiarity with the normal facts and circumstances of the business
activity engaged in, that the contract or agreement does not include
funds sufficient to allow the contractor to comply with applicable
laws.
(2) The phrase "should know" includes the knowledge of any
additional facts or information that would make a reasonably prudent
person undertake to inquire whether, taken together, the contract or
agreement contains sufficient funds to allow the contractor to comply
with applicable laws.
(3) A failure by a person or entity to request or obtain any
information from the contractor that is required by any applicable
statute or by the contract or agreement between them, constitutes
knowledge of that information for purposes of this section.
(j) For the purposes of this section, "warehouse" means a facility
the primary operation of which is the storage or distribution of
general merchandise, refrigerated goods, or other products.
(a) As used in this section:
(1) (A) "Client employer" means a business entity, regardless of
its form, that obtains or is provided workers to perform labor within
its usual course of business from a labor contractor.
(B) "Client employer" does not include any of the following:
(i) A business entity with a workforce of fewer than 25 workers,
including those hired directly by the client employer and those
obtained from, or provided by, any labor contractor.
(ii) A business entity with five or fewer workers supplied by a
labor contractor or labor contractors to the client employer at any
given time.
(iii) The state or any political subdivision of the state,
including any city, county, city and county, or special district.
(2) "Labor" has the same meaning provided by Section 200.
(3) "Labor contractor" means an individual or entity that
supplies, either with or without a contract, a client employer with
workers to perform labor within the client employer's usual course of
business. "Labor contractor" does not include any of the following:
(A) A bona fide nonprofit, community-based organization that
provides services to workers.
(B) A bona fide labor organization or apprenticeship program or
hiring hall operated pursuant to a collective bargaining agreement.
(C) A motion picture payroll services company as defined in
subparagraph (A) of paragraph (4) of subdivision (f) of Section 679
of the Unemployment Insurance Code.
(D) A third party who is a party to an employee leasing
arrangement, as defined by Rule 4 of Section V of the California
Workers' Compensation Experience Rating Plan-1995 (Section 2353.1 of
Title 10 of the California Code of Regulations), as it read on
January 1, 2014, except those arrangements described in subrule d of
Rule 4 of Section V, if the employee leasing arrangement
contractually obligates the client employer to assume all civil legal
responsibility and civil liability under this act.
(4) "Wages" has the same meaning provided by Section 200 and all
sums payable to an employee or the state based upon any failure to
pay wages, as provided by law.
(5) "Worker" does not include an employee who is exempt from the
payment of an overtime rate of compensation for executive,
administrative, and professional employees pursuant to wage orders by
the Industrial Welfare Commission described in Section 515.
(6) "Usual course of business" means the regular and customary
work of a business, performed within or upon the premises or worksite
of the client employer.
(b) A client employer shall share with a labor contractor all
civil legal responsibility and civil liability for all workers
supplied by that labor contractor for both of the following:
(1) The payment of wages.
(2) Failure to secure valid workers' compensation coverage as
required by Section 3700.
(c) A client employer shall not shift to the labor contractor any
legal duties or liabilities under Division 5 (commencing with Section
6300) with respect to workers supplied by the labor contractor.
(d) At least 30 days prior to filing a civil action against a
client employer for violations covered by this section, a worker or
his or her representative shall notify the client employer of
violations under subdivision (b).
(e) Neither the client employer nor the labor contractor may take
any adverse action against any worker for providing notification of
violations or filing a claim or civil action.
(f) The provisions of subdivisions (b) and (c) are in addition to,
and shall be supplemental of, any other theories of liability or
requirement established by statute or common law.
(g) This section does not prohibit a client employer from
establishing, exercising, or enforcing by contract any otherwise
lawful remedies against a labor contractor for liability created by
acts of a labor contractor.
(h) This section does not prohibit a labor contractor from
establishing, exercising, or enforcing by contract any otherwise
lawful remedies against a client employer for liability created by
acts of a client employer.
(i) Upon request by a state enforcement agency or department, a
client employer or a labor contractor shall provide to the agency or
department any information within its possession, custody, or control
required to verify compliance with applicable state laws. Upon
request, these records shall be made available promptly for
inspection, and the state agency or department shall be permitted to
copy them. This subdivision does not require the disclosure of
information that is not otherwise required to be disclosed by
employers upon request by a state enforcement agency or department.
(j) The Labor Commissioner may adopt regulations and rules of
practice and procedure necessary to administer and enforce the
provisions of subdivisions (b) and (i) that are under his or her
jurisdiction.
(k) The Division of Occupational Safety and Health may adopt
regulations and rules of practice and procedure necessary to
administer and enforce the provisions of subdivisions (c) and (i)
that are under its jurisdiction.
(l) The Employment Development Department may adopt regulations
and rules of practice and procedure necessary to administer and
enforce the provisions of subdivisions (b) and (i) that are under its
jurisdiction.
(m) A waiver of this section is contrary to public policy, and is
void and unenforceable.
(n) This section shall not be interpreted to impose individual
liability on a homeowner for labor or services received at the home
or the owner of a home-based business for labor or services received
at the home.
(o) This section shall not be interpreted to impose liability on a
client employer for the use of an independent contractor other than
a labor contractor or to change the definition of independent
contractor.
(p) This section shall not be interpreted to impose liability on
the following:
(1) A client employer that is not a motor carrier of property
based solely on the employer's use of a third-party motor carrier of
property with interstate or intrastate operating authority to ship or
receive freight.
(2) A client employer that is a motor carrier of property
subcontracting with, or otherwise engaging, another motor carrier of
property to provide transportation services using its own employees
and commercial motor vehicles, as defined in Section 34601 of the
Vehicle Code.
(3) A client employer that is not a household goods carrier based
solely on the employer's use of a third-party household goods carrier
permitted by the Public Utilities Commission pursuant to Chapter 7
(commencing with Section 5101) of Division 2 of the Public Utilities
Code to move household goods.
(4) A client employer that is a household goods carrier permitted
by the Public Utilities Commission pursuant to Chapter 7 (commencing
with Section 5101) of Division 2 of the Public Utilities Code
subcontracting with, or otherwise engaging, another permitted
household goods carrier to provide transportation of household goods
using its own employees and motor vehicles, as defined in Section
5108 of the Public Utilities Code.
(5) A client employer that is a cable operator as defined by
Section 5830 of the Public Utilities Code, a direct-to-home satellite
service provider, or a telephone corporation as defined by Section
234 of the Public Utilities Code, based upon its contracting with a
company to build, install, maintain, or perform repair work utilizing
the employees and vehicles of the contractor if the name of the
contractor is visible on employee uniforms and vehicles.
(6) A motor club holding a certificate of authority issued
pursuant to Chapter 2 (commencing with Section 12160) of Part 5 of
Division 2 of the Insurance Code when it contracts with third parties
to provide motor club services utilizing the employees and vehicles
of the third-party contractor if the name of the contractor is
visible on the contractor's vehicles.
(a) (1) At the time of hiring, an employer shall provide to
each employee a written notice, in the language the employer
normally uses to communicate employment-related information to the
employee, containing the following information:
(A) The rate or rates of pay and basis thereof, whether paid by
the hour, shift, day, week, salary, piece, commission, or otherwise,
including any rates for overtime, as applicable.
(B) Allowances, if any, claimed as part of the minimum wage,
including meal or lodging allowances.
(C) The regular payday designated by the employer in accordance
with the requirements of this code.
(D) The name of the employer, including any "doing business as"
names used by the employer.
(E) The physical address of the employer's main office or
principal place of business, and a mailing address, if different.
(F) The telephone number of the employer.
(G) The name, address, and telephone number of the employer's
workers' compensation insurance carrier.
(H) That an employee: may accrue and use sick leave; has a right
to request and use accrued paid sick leave; may not be terminated or
retaliated against for using or requesting the use of accrued paid
sick leave; and has the right to file a complaint against an employer
who retaliates.
(I) Any other information the Labor Commissioner deems material
and necessary.
(2) The Labor Commissioner shall prepare a template that complies
with the requirements of paragraph (1). The template shall be made
available to employers in such manner as determined by the Labor
Commissioner.
(3) If the employer is a temporary services employer, as defined
in Section 201.3, the notice described in paragraph (1) must also
include the name, the physical address of the main office, the
mailing address if different from the physical address of the main
office, and the telephone number of the legal entity for whom the
employee will perform work, and any other information the Labor
Commissioner deems material and necessary. The requirements of this
paragraph do not apply to a security services company that is
licensed by the Department of Consumer Affairs and that solely
provides security services.
(b) An employer shall notify his or her employees in writing of
any changes to the information set forth in the notice within seven
calendar days after the time of the changes, unless one of the
following applies:
(1) All changes are reflected on a timely wage statement furnished
in accordance with Section 226.
(2) Notice of all changes is provided in another writing required
by law within seven days of the changes.
(c) For purposes of this section, "employee" does not include any
of the following:
(1) An employee directly employed by the state or any political
subdivision thereof, including any city, county, city and county, or
special district.
(2) An employee who is exempt from the payment of overtime wages
by statute or the wage orders of the Industrial Welfare Commission.
(3) An employee who is covered by a valid collective bargaining
agreement if the agreement expressly provides for the wages, hours of
work, and working conditions of the employee, and if the agreement
provides premium wage rates for all overtime hours worked and a
regular hourly rate of pay for those employees of not less than 30
percent more than the state minimum wage.