On or about June 8, 2023, a law firm filed a complaint of discrimination with the Civil Rights Department (“CRD” [formerly the Department of Fair Employment and Housing]) and requested a right to sue notice on behalf of a former employee of Lake County who received a disability retirement through the California Public Employees’ Retirement System (“CalPERS”).  The narrative of the complaint purports to name CalPERS, the State of California, the County of Lake, and entities that contract with CalPERS to provide retirement benefits under the Public Employees’ Retirement Law (“PERL”) as defendants.  The notice and right to sue letters, along with a narrative of the complaint and a purported tort claim, were served on many, if not most, CalPERS contracting agencies.

The complaint indicates that the potential class of employees plaintiff seeks to represent consists of the following:

[A]ll persons who were employed by Defendants; who were at or over age 40 at the time they became members of the CalPERS system; who applied for and were granted ordinary disability retirement; whose retirement benefits are administrated by CalPERS; and either (1) who have ever received disability retirement benefit payments pursuant to Government Code section 21423, who were over age 41 at membership in CalPERS, and who at retirement were credited with 18.518 or fewer years of actual service; or (2) who have ever received disability retirement benefit payments pursuant to Government Code section 21098, and who at retirement were credited with 24.691 or fewer years of actual service; or (3) who have ever received disability retirement benefit payments pursuant to Government Code section 21424, and who at retirement were credited with 29.629 or fewer years of actual service.

The complaint alleges that provisions of the PERL, which are legislatively enacted and administered by CalPERS, discriminate against individuals based on their age.  The complaint further alleges that this amounts to disparate treatment and intentional discrimination, and failure to prevent discrimination, under the Fair Employment and Housing Act (“FEHA”).  The complaint also alleges breach of contract claims.  Given that the alleged wrongful conduct was the result of a legislatively adopted statute, it is not clear what theory would support a claim that would make contracting agencies liable for the statutory scheme or under a breach of contract theory.

The attachments to the CRD claim also contain a generic purported tort claim.  It is also unclear whether the theories advanced by the plaintiff would be subject to the Tort Claims Act or whether the attachment complies or substantially complies with the requirements of the Tort Claims Act.  Agencies should discuss with their counsel whether to overtly act on the tort claim, by providing a notice of rejection of the tort claim, or not respond, which ultimately results in a rejection  by operation of law. Agencies should also discuss with their counsel whether to notify their employment practices liability insurer.

At this time, it is uncertain whether a lawsuit will be filed, whether a class will be certified, and what theories will be alleged.   We are currently unaware of any agencies being served with a lawsuit.

Liebert Cassidy Whitmore attorneys are closely monitoring developments in relation to this Special Bulletin and are able to advise on the impact this could have on your organization. If you have any questions about this issue, please contact our Los Angeles, San Francisco, Fresno, San Diego, or Sacramento office.

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Since its November 2022 launch, ChatGPT, an artificial intelligence (AI) chatbot, has garnered significant international attention. By January 2023, ChatGPT had an estimated 100 million monthly active users. Given its extensive adoption, it is likely your agency’s employees have used or are currently using ChatGPT personally, or even in the workplace. Employers should implement policies and guidelines for any usage of ChatGPT, or other AI chatbots, in the workplace. 

  1. Policy Cautioning Limitations of ChatGPT  

Employers should first understand how ChatGPT works. Despite our science-fiction fantasies, ChatGPT is not currently a source compiling the entirety of humanity’s knowledge. Instead, ChatGPT and AI chatbots use large language models to provide responses to a user’s prompt. When ChatGPT responds, it does not pull facts or run an internet search – it predicts strings of words based on the data and information uploaded to the program (or what is commonly referenced as the information the AI chatbot has been “trained on”). Because ChatGPT does not rely on facts but merely predicts strings of words, users may receive an intelligent-sounding, polished, but completely factually inaccurate response. 

Employers should develop guidelines and policies prohibiting any user from relying on the accuracy of any response provided by ChatGPT. As a tale of caution, a thirty-year practicing attorney in New York used ChatGPT to write his legal brief. The problem? ChatGPT fabricated the cases the attorney cited, resulting in a scathing order by the judge and widespread embarrassment for the attorney and his firm.

In addition, ChatGPT has only been trained on information up to 2021. This means that ChatGPT can also provide outdated responses. Employers should prohibit employees from relying on ChatGPT for research or as legal or expert advice. Employers should direct employees to always double (and triple) check any information generated by ChatGPT.

2. Acceptable Use Policy

Employers should also outline clear guidelines and policies regarding employees’ authorization to use ChatGPT in the workplace. In doing so, employers should consider and refer to any computer-use or other relevant technology policies already instituted.  

As one option, employers could bar employees from using ChatGPT in any circumstance in the workplace. Alternatively, employers could restrict employees from using ChatGPT for only certain tasks. Employers could also limit employee’s use of ChatGPT by prohibiting them from using workplace login credentials (for example, their work email addresses), or prohibiting employees from using ChatGPT on workplace devices. Employers should implement policies that are clear, thorough, and applied consistently.  

3. Educate and Train

Employers should educate and train their employees about the previously discussed limitations of ChatGPT. ChatGPT responses certainly sound legitimate, and may easily fool untrained employees. Employers should educate employees to warn them about the limitations of ChatGPT to prevent inaccuracies and mistakes. Employers should also stay current on the latest iterations of AI chatbots like ChatGPT, or any other technological advances, to ensure all employees are properly trained on any resources used in the workplace.

4. Watch for New Legislation

Further, employers should monitor legislation that may affect the use of AI in the workplace. For instance, there are efforts on a federal level by the National Telecommunication and Information Administration, as well as other agencies, to “create a cohesive and comprehensive federal government approach to AI-related risks and opportunities.” This session, California State Legislators have also proposed (but have not passed) several bills related to the regulation of AI. For instance, the proposed SB313 would require any state agency using generative AI to communicate with members of the public to provide additional notice. New legislation on the use of AI is likely to emerge and may impact employers. 

5. Safeguarding Data and Confidential Information

Further, employers should create policies and guidelines instructing employees about how to protect data and personal, confidential, or private information when using ChatGPT. A general rule of thumb is to train employees to treat any information provided to ChatGPT as if it will be posted on a public website.

Thinking through how this may arise in the workplace, some recommend using ChatGPT to assist with summarizing meeting notes or analyzing large amounts of data. However, if an employee attempts to summarize, for instance, meeting notes from an interactive process meeting to accommodate an employee with a disability, or data that includes confidential employee information like social security numbers, then uploading the information to ChatGPT could violate relevant privacy and data protection regulations and laws. Employers should institute policies and guidelines prohibiting employees from uploading confidential or private information or data into ChatGPT.

As they have for decades, employers will continue to reckon with new challenges posed by technological advances. AI chatbots and ChatGPT can be a great resource for employees and employers alike. Employers should establish clear, thorough, and  consistently applied policies for their employees. These policies should be adaptable and continuously evaluated. Trusted legal counsel can help employers navigate implementing new policies and guidelines so employers and employees can embrace the benefits of technological advances.    

We are excited to continue our video series – Tips from the Table. In these videos, members of LCW’s Labor Relations and Collective Bargaining practice group will provide various tips that can be implemented at your bargaining tables. We hope that you will find these clips informative and helpful in your negotiations.

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June 23 is National Bring Your Dog to Work Day. Here are some best practices when considering bringing your pet to work—for one day or fur-ever!

  1. Be Purr-Real

Generally, your boss can say no to your pet. However, California requires employers to accommodate employees with assistive animals, such as service dogs (or miniature horses) and emotional support animals. So, it might be tempting to claim that your pet is an assistive animal, even if they are not. DO NOT DO THIS!

Making a false claim that your pet is an assistive animal is disrespectful to people living with disabilities. Instead of boosting morale, misrepresenting your pets could lead to strained relationships with coworkers who may view it as unfair or a breach of trust.

Instead, honestly ask your supervisor if you can bring your pet. You can discuss the potential benefits and positive effects that a pet’s visit can have on the workplace. Be prepared to address any potential concerns such as allergies, safety, or distractions. Assure them that you will take full responsibility for your pet’s behavior and well-being, and propose practical solutions to address any valid concerns.

2. Check the Paw-licies

Check if your workplace has a pet policy. Familiarizing yourself with this policy will help you understand the guidelines and expectations surrounding pets in the workplace. Additionally, it is crucial that you consider local ordinances and regulations that may apply to non-assistive pets in the workplace. Different jurisdictions may have specific requirements or restrictions that you need to be aware of to ensure compliance. These regulations could also depend on the type of work you do. For example, it is likely less of an issue to bring your dog to a Parks and Recreation program than it would be to bring your dog to the kitchen for Meals on Wheels.

3. Make Sure Your Pet is Vetted

We are not talking about going to the vet—though that is also important! Vetting your pet means making sure that your pet is up to the challenge. Pets can experience stress when exposed to unfamiliar surroundings, noises, and interactions. If your pet will be in physical contact with others, make sure that your pet has a friendly disposition, is well trained, and can socialize with humans and other animals.

You need to evaluate your pet’s temperament and personality and make honest assessments. Remember, you promised to be personally responsible for your pet’s behavior. If your pet is not ready for the office life, results could be disastrous. Keep in mind that you can be liable for injuries even if you did not intend to cause any harm. Beyond property damage or injuries, a bad experience at the office will stress your pet and could leave lasting trauma.

4. Bear in Mind, We’re Not All Party Animals

Pets can inspire either adoration or apprehension. In some cases, our pets can inspire both! Some people might want to cuddle with your furry friend but their allergies say otherwise. Be prepared to set up “no pet” zones for people who cannot be around animals.

Fear and dislike of pets are also valid emotions experienced by many. These feelings sometimes stem from past traumas, cultural differences, or personal preferences.

If you have an exotic pet (like spiders or snakes), you are probably already aware that your pet might scare some people. In these circumstances, you may be liable for injuries even if it was the result of your coworker’s fearful reaction to the pet, and not your pet actually doing anything harmful.

Before bringing your pet to work, make sure everyone is on board. This applies to all kinds of pets. Remember that your coworkers did not sign up for this. Make it clear to them that you understand that your pet would be an unexpected addition to the work environment. Recognizing a hesitant coworker’s concerns might even put them on your side.

5. Being Top Dog Comes With Responsibility

Employers—understand that the buck stops with you. An employee or a member of the public can initiate legal action against you for injuries caused by your employee’s pet, even if your employee promised to take full responsibility. This is an inherent, unavoidable risk when allowing pets in the workplace.

Mitigate the risk of unwanted consequences as much as you can. It helps to have a carefully crafted pet policy. This policy should outline expectations from your employees and any restrictions (such as pet free zones). It should also make clear that your employees are responsible for their pet’s actions. Be prepared to resolve disputes and complaints fairly and professionally. When in doubt, ask a lawyer!

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The California Legislature is currently reviewing AB 1484 (Zbur), a bill that would add Section 3507.7 to the Meyers-Milias-Brown Act (MMBA). Proponents of the bill hope that it will address an increase in public agency use of temporary employees, aiming to bring equity to temporary employees who perform similar work as permanent employees but without some of the benefits afforded to permanent employees. However, as discussed below, City, County, and Special District employers subject to the MMBA may incur certain fiscal and administrative impacts if the bill passes legislative muster.

Temporary Employee Defined

AB 1484 defines a temporary employee as “a temporary employee, casual employee, seasonal employee, periodic employee, extra-help employee, relief employee, limited-term employee, per diem employee, and any other employee who has not been hired for a permanent position.” It specifies that the law will apply to temporary employees who are “hired to perform the same or similar type of work that is performed by permanent employees.”

Potential Requirements under AB 1484

The bill would impose certain duties on public employers with respect to temporary employees as defined above. These requirements include, but are not limited to, the following:

  • At a recognized employee organization’s request, certain temporary employees would be automatically included in the same bargaining unit as permanent employees.
  • Also upon request, parties would need to negotiate terms and conditions of employment within a single Memorandum of Understanding (MOU) covering both permanent and temporary employees.
  • Upon a temporary employee’s hire, the public employer would be required to provide each temporary employee with a job description, wage rates, eligibility for benefits, anticipated length of employment, and procedures to apply for open, permanent positions. Employers would need to produce this information to the exclusive representative within five (5) business days of hire.
  • Also within five (5) business days of hire, employers would need to provide the exclusive representative with the temporary employee’s anticipated end date and certain employee information pursuant to Government Code section 3558.
  • Finally, if not waived in the MOU, temporary employees would become entitled to certain grievance procedure rights after 30 calendar days of employment, specifically to challenge disciplinary actions without cause.

Any violation of Section 3507.7 would be actionable as an unfair practice charge before the California Public Employment Relations Board (PERB).

Potential Impact on Public Employers

Proponents of AB 1484 indicate that the bill does not intend to restrict a public employer’s ability to employ temporary employees or to give temporary employees permanent status; instead, the focus is on allowing temporary employees to bargain alongside permanent employees.

However, employers should be aware of potential fiscal and administrative impacts. For example, employers may incur costs and expenditure of administrative time and effort related to adding temporary employees to a bargaining unit or MOU, implementing wages and benefits negotiated by temporary employees, and administering the grievance process.

These and other associated costs may interfere with temporary employee retention and hiring. In fact, the League of California Cities, in opposition to the bill, foresees a potential increase in hiring costs for temporary employees to the public’s detriment. They project a potential impact on “extra help” employees often retained for seasonal or “surge” needs, such as nurses, health care workers, election workers, and parks and recreation staff.

Finally, by mandating the inclusion of temporary employees in established bargaining units, the bill will necessarily impact the public employer’s options for delivering essential services by expanding the number of employees covered by a strike while limiting the employer’s options for utilizing alternative personnel. Thus, the bill raises questions about the role of temporary employees as providers of necessary public services when strikes occur, what impact, if any, the bill may have during the negotiation of “line pass” agreements, and the identification of employees who will stand ready to cross the picket lines to assist in the event of an emergency. These potential adverse consequences should be carefully evaluated and presented by the bill’s opponents.

LCW will continue to monitor and report on the status of this legislation.

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On January 1, 2023, Assembly Bill 2777 (AB 2777), also known as the Sexual Abuse and Cover-Up Accountability Act (the “Act”), officially became the law. The Act provides sexual abuse victims an opportunity to seek justice in California. It is important to note that while the Act revives claims against various entities, public entities are exempt from the Act.

Originally, the statute of limitations for sexual abuse claims that occurred on or after the victim’s 18th birthday was 10 years or within three years from the date the victim discovers or reasonably should have discovered that an injury or illness resulted from those acts.

Today, the Act provides a three-year window for survivors of sexual assault to file a claim and recover damages as a result of crimes that occurred on or after January 1, 2009. In other words, from January 1, 2023 through December 31, 2026, sexual assault and abuse claims, which would otherwise be barred by the statute of limitations, will be revived and officially be eligible to be brought in civil court, provided that those claims were barred solely because of the expiration of the statute of limitations. As a result, California plaintiffs will now have a window of opportunity to secure justice on their own terms for crimes such as rape, sexual assault, and sexual abuse, as well as any related claims arising out of the sexual assault, such as sexual harassment and wrongful termination, that occurred on or after January 1, 2009.

Separately, the new legislation has also created a one-year revival window which allows victims to bring sexual assault claims (including claims arising out of sexual assault) involving cover-ups that would otherwise be barred, before January 1, 2023, because the statute of limitations expired. Survivors may bring these claims between January 1, 2023 and December 31, 2023. A cover-up is defined as: “A concerted effort to hide evidence relating to a sexual assault that incentivizes individuals to remain silent or prevents information relating to a sexual assault from becoming public or being disclosed to the plaintiff, including, but not limited to, the use of nondisclosure agreements or confidentiality agreements.”

In order to qualify for the cover-up claim under the one-year lookback window provision, the plaintiff needs to allege the following: (1) He, she, or they were sexually assaulted; (2) One or more entities are legally responsible for damages stemming from that sexual assault (“Legally responsible” means that the entity or entities are liable under any theory of liability established by statute or common law, including, but not limited to, negligence, intentional torts, and vicarious liability); and (3) Said entities, which may include employees, officers, directors, representatives, or agents, engaged in a cover-up or attempted cover-up of a previous instance or allegation of sexual assault by an alleged perpetrator of such abuse.

It is important to note the Act does not revive any of the following claims:

(1) A claim that has been litigated to finality in a court of competent jurisdiction before January 1, 2020;

(2) A claim that has been compromised by a written settlement agreement between the parties entered into before January 1, 2020; or

(3) A claim brought against a public entity.

What Should Employers do in light of AB 2777?

It is now more important than ever for employers to review their anti-sexual harassment, discrimination, and retaliation policies and ensure managers and supervisors are adequately trained and informed on the legal ramifications of sexual assault and to avoid any practices that would incentivize silence surrounding sexual assault in the workplace. Employers should also monitor employee files for any complaints of sexual assault or harassment and promptly investigate any such complaints, and ensure records are created and filed properly.

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After three years of COVID-19, many employers are familiar with the occupational safety and health regulations that relate to that specific workplace hazard and the Division of Occupational Safety and Health (“Division” or “DOSH”) which enforces those regulations. (Note: The Division is often referred to as Cal/OSHA.)

However, even with COVID-19 (hopefully) disappearing into the distance in your rearview mirror, it is important to be mindful of the Division’s other regulatory responsibilities, so that your public agency can respond confidently in the event that you see the Division’s flashing red and blue lights approaching you from behind.

To provide you that peace of mind, this post describes how your agency should respond in the event your agency receives notice of a complaint from the Division.

The Division’s Authority

The Division is responsible for ensuring that employers, including public agencies, comply with the General Industry Safety Orders (See Title 8 of the California Code of Regulations). These are occupational safety and health regulations that apply generally to all employers in the state of California and cover subjects ranging from a facility’s physical condition to employees’ exposure to hazardous substances, excessive noise, heat, and more.  The Division possesses broad investigatory and enforcement authority and can cite employers and impose significant monetary penalties.

The Complaint

A complaint is an allegation that a hazardous condition existed or hazardous conduct occurred at a worksite controlled by an employer.

In the event that the Division becomes aware of such a hazard at a public agency (usually through a complaint, anonymous or otherwise), the Division will provide notice to the agency and certain information about the hazard and the regulation allegedly violated.

The Division will provide notice of the complaint to the public agency prior to the Division conducting any investigation of the alleged hazard. As a result, the Division’s issuance of notice of a complaint does not constitute a determination by the Division that any hazardous condition actually exists. Rather, the Division’s notice is an opportunity for the public agency to investigate and, as may be necessary, correct any hazard that may have existed. 

Information Provided in the Notice

Notices of complaint include the following information: (1) information about the alleged hazard and the regulation allegedly violated; (2) the public agency’s obligation to investigate the alleged hazard; (3) the agency’s obligation to post the notice of the complaint; and (4) an admonition to refrain from any discriminatory or retaliatory conduct against the complainant.

The notice will include the following information about the alleged regulatory violation: (1) the work location where the violation allegedly occurred; (2) the regulation allegedly violated; and (3) the conduct or condition at the location that allegedly constitutes a violation of the regulatory section.  

The notice will also instruct the public agency to investigate the alleged hazard and to notify the Division as to whether the alleged hazard exists. The notice will set a deadline (typically five (5) days from the agency’s receipt of the notice) for the employer to respond to the Division and inform the Division about the existence of the hazard.

Finally, the notice will inform the public agency of the agency’s obligation to post the notice. The agency must post the notice in a prominent location in the workplace (e.g., a bulletin board where the agency typically posts notices to employees about work-related issues) and must maintain the posting for at least three (3) days.  

Investigating the Complaint

After posting the notice, as described above, an agency should undertake the following actions in order to investigate and remediate any potential hazard:

1. Contact the Division to obtain any additional information about the alleged hazard and violation (Note: The notice will identify the district office and will provide the name and contact information for the district manager or staff member responsible for the complaint. The district office may possess additional information about the nature of the specific complaint);

2. Review and analyze the specific regulation or regulations cited in the notice in order to understand the extent of the employer’s regulatory obligations (Note: The notice will provide a web address where employers can search for the specific regulatory section identified in the notice);

3. Inform management staff who are responsible for the work location where the hazard allegedly existed or occurred and the staff who are responsible for conduct that may have created the hazard;

4. Investigate and, as necessary, correct the hazard.

A public agency may request additional time from the Division in order to investigate an alleged hazard. If the agency anticipates requiring additional time beyond that set forth in the notice, it is advisable that the agency request an extension from the Division as soon as is practicable, so as not to violate the deadline if the requested extension is not granted.

Responding to the Division

After the public agency thoroughly investigates the alleged hazard, the agency should respond in writing to the Division, either denying the existence of the hazard at the work location or explaining that the employer remedied or is in the process of remedying whatever hazard may have existed.

It is imperative to respond to the Division in the period prescribed as failure to do so may result in the Division conducting a worksite inspection, which could result in the Division issuing citations and imposing monetary penalties related to the alleged regulatory violation. Further, a worksite investigation could also potentially uncover additional supposed regulatory violations that were not initially at issue. (Note: Even if the agency responds to the Division in a comprehensive and timely manner, the Division retains authority to conduct a worksite inspection in order to ensure the agency’s regulatory compliance.)

The written response to the Division should be clear and concise. The response should explain why there was no hazard or regulatory violation at the work location identified or, if there was a hazard, what affirmative specific steps the agency undertook in order to address and correct the hazard and why, as a result, the agency is no longer in violation of the cited regulation.

In addition to the written response, the agency should provide the Division relevant documentation, such as copies of policies, photographs of the work location, or contracts for corrective work, that support the employer’s position that there was either no hazard or regulatory violation or that the hazard was remedied and compliance reestablished.

Refrain from Any Discriminatory or Retaliatory Conduct

It is imperative that public agencies observe California law, which protects employees who file complaints about occupational safety and health hazards, and refrain from engaging in any discriminatory or retaliatory conduct against anyone that the agency believes may have filed the complaint or assisted with its filing.

While agencies may interview employees who witnessed the hazard as part of the agency’s investigation into the hazard, as a best practice, an agency should not seek to identify the complainant.

In the event of a notice of the type described above, it is prudent to contact trusted legal counsel familiar with the occupational safety and health regulations and who can assist public agencies respond to complaints, facilitate worksite inspections, and appeal citations and penalties.  

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The weather is getting warmer and the sun is getting brighter, and you know what that means–employers everywhere are calling their lawyers to ask how they can put teenagers on payroll this summer! Many employers that operate summer programming seek to hire minors as recreational leaders, day camp counselors, and the like, but find themselves mystified by the legal restrictions and requirements for hiring employees under the age of 18. The following primer addresses some frequently asked questions about the law and best practices regarding hiring minors.

Work Permits and Age Certification

The California Education and Labor Codes require that prior to employing a minor under age 18 in California, an employer must obtain a work permit issued by the minor’s school. The process for obtaining a work permit is as follows: After a minor receives an offer of employment, the minor obtains a “Statement of Intent to Employ a Minor and Request for a Work Permit – Certificate of Age” (California Department of Education (CDE) Form B1-1) from their school. The form contains sections for the minor, their parent/guardian, the prospective employer, and the school to complete.  After the minor returns the form to their school, if all requirements are satisfied, the school will issue the minor a work permit (CDE Form B1-4). The Labor Code requires employers to retain a minor employee’s work permit until the beginning of the fourth year after the work permit was issued.

However, many public agencies don’t realize that both the Department of Labor Standards Enforcement (DLSE) and the California Department of Education take the position that state and local agencies are exempt from the work permit requirement. The basis for this exemption is the general rule of statutory interpretation that unless Labor Code provisions are expressly made applicable to public employers, they only apply to private sector employers. (Johnson v. Arvin-Edison Water Storage Dist.) Public agency employers should be sure to check the applicable local policies, though–some cities and counties require public agency employers to obtain work permits despite the exemption from state law.

Because public agencies are subject to the federal Fair Labor Standards Act (FLSA), they still need to obtain a Certificate of Age establishing that the minor is above the “oppressive child labor age” applicable to the occupation in which the minor will be employed. Therefore, public agencies seeking to employ minors should still require the minor to obtain a signed and completed CDE Form B1-1 from their school. The agency must keep each minor’s Certificate of Age on file while they are employed, then return the Certificate of Age to the minor when their employment concludes.

Wage, Hour, and Occupational Restrictions

Public and private employers alike are subject to the FLSA, which establishes different restrictions on the hours and types of work a minor may perform depending on the minor’s age:

  • With limited exceptions, employers generally may not hire minors under the age of 14.
  • Minors age 14-15 may not work more than 8 hours per day and 40 hours per week when school is not in session. The FLSA also enumerates an exhaustive list of the jobs that 14-15-year-olds may perform, including tutoring, office work, and lifeguarding.
  • Minors age 16 and over are prohibited from performing work that the FLSA deems hazardous, including driving a vehicle.

While minors age 16 and over are not subject to work hour restrictions under the FLSA, the California Labor Code limits their hours to 8 hours per day, 48 hours per week. Like the work permit requirement, this provision of the Labor Code does not apply to public agency employers.

All California employers, both public and private, must pay minor employees at least the minimum wage and applicable overtime rates established by the California Industrial Welfare Commission.

Fingerprinting and TB Testing

According to the California Education Code, employers must require fingerprinting for each employee and volunteer for a public recreation program who will have “direct contact with minors.” Similarly, the California Public Resources Code requires parks and recreation employers to fingerprint prospective employees and volunteers who will have “supervisory or disciplinary authority over a minor.” In addition, the same code requires a tuberculosis (TB) screening for all employees of parks and recreation facilities who will have direct contact with children. The positions in which employers seek to employ minors often entail direct contact with or supervision of other minors in the context of a recreational program–for example, a coach for a youth sports program or a counselor for a day camp. For such positions in parks and recreation programs, public agency employers must require both fingerprinting and TB screening for minor employee hires.

Beyond the field of parks and recreation, the Education and Health & Safety Codes require a TB risk assessment for employees of a public or private school. The Education Code also directs private school employers to require fingerprinting for any applicant to a position involving contact with minor students. Public school employers must require fingerprints for applicants as well (but note that the Education Code exempts from this requirement any K-12 school district seeking to employ a high school student within its own jurisdiction).

One important consideration sets minor employees apart from their adult counterparts in this context: we strongly advise that employers obtain a parent or guardian’s consent before requiring a minor to submit to fingerprinting or TB testing, in light of the confidential nature of the information.

Fitness for Duty Exams and Drug & Alcohol Testing

Some employers require post-offer fitness for duty exams, often for positions that involve physical fitness such as coaching. Under the ADA and California law, an employer may require a post-offer medical examination, including fitness for duty exams, if (1) it requires all applicants for the position to take the examination and (2) the examination is job related and consistent with business necessity. Therefore, employers should require minor applicants to a position to undergo medical examinations to the same extent as adult applicants to that same position.

With regard to drug and alcohol testing, the Ninth Circuit Court of Appeals has held that employers may only require post-offer, pre-employment drug testing if there is a “special need” to do so–that is, if the position is “safety-sensitive” in that it involves danger to the public (Lanier v. City of Woodburn). The court held that supervision of minors alone does not make a position “safety-sensitive.” If an employer determines there is a special need for drug testing with regard to the position for which the minor has been hired, then as with fitness for duty exams, minors should be subject to the same drug testing to which adult applicants to the position are subject.

With limited exceptions, only the parent or guardian of a minor has the legal capacity to consent to medical care for the minor in California, including treatment and diagnosis. According to the EEOC, drug and alcohol tests and some types of fitness for duty exams are considered “medical examinations” under the ADA. Therefore, we advise that employers obtain the consent of a minor applicant’s parent or guardian before requiring the minor to undergo a fitness for duty exam and/or a drug or alcohol test.

If you’re considering hiring minors this summer, trusted legal counsel can help you sort through the legal requirements particular to your jurisdiction and draft parental consent forms before the school bell rings in summer break.