Common California Employment Law Mistakes (and How to Avoid Them): Part One


From the hiring process to employee terminations – and all that lies between – employers must thread the needle to maintain compliance with California’s employee-friendly labor laws, federal regulations and local ordinances.  As a Southern California employer attorney, Susan A. Rodriguez and the team at the Law Offices of Susan A. Rodriguez, APC understand the impacts California employment law mistakes can have on businesses, organizations and other entities. 

In this blog, we discuss five common mistakes employers make and how to mitigate them.  Part two of this series will cover five more common missteps, so watch for that in an upcoming blog.

California Employment Law Mistakes: The Consequences of Employer Missteps

Employers accused of noncompliance with employment laws face fines and other financial penalties, litigation costs, business disruptions and damage to their reputations.  Comprehensive planning and vigilant attention to employment policies and practices can help mitigate the consequences of employer missteps.  Being aware of common mistakes and working with an experienced California employer attorney to address these and other issues can also set the stage for success.

Mistake 1: Asking Potential Hires Prohibited Questions

The California Fair Employment and Housing Act (FEHA) and the federal Equal Employment Opportunities Act prohibit discrimination in hiring and employment.  When interviewing potential employees, avoid asking questions that may identify a person as a member of a protected class if the questions are not relevant to the applicant’s skills or ability to perform the job.  These could include questions about medical or psychological health, race, ethnicity, religion, age and pregnancy or familial status, among others.

In California, employers are also not allowed to ask applicants about workers’ compensation claims or compensation and benefits at a previous job.  Applicants cannot be asked about minor marijuana offenses that are more than two years old, and criminal history checks may not be performed without a conditional offer of employment.

To avoid California employment law issues that arise in the hiring process, employers should develop standard practices and questions for interviewing potential employees.  Any employees involved in the interview process should be educated on the applicable laws that apply, as well as proper interview procedures and questioning.

Mistake 2: Misclassification of Employees

Employee misclassification in California is often related to two sets of classifications: exempt versus nonexempt and employee versus contractor.  Improper classification of workers in these areas can lead to serious legal consequences, including class action lawsuits.

The status of an exempt employee must be determined by the actual duties performed in the course of work, not by the position title.  CalChamber offers an Exempt/Nonexempt Wizard to help employers determine the correct classification for exempt and nonexempt employees.

To determine if a worker should be classified as an employee or an independent contractor, employers must first identify the correct method of assessment.  The three-part ABC test should be used in many cases, but California law requires or allows employers to apply the Borello test in others.  For some industries, like real estate, classification of employees is governed by rules specific to the profession.

Mistake 3: Failing to Equip Your Human Resources Team

The human resources (HR) department absorbs much of the responsibility of managing California employment law issues, ensuring that company policies and practices comply with all relevant laws, rules, and regulations.  To operate efficiently and effectively, they need the right tools and resources to succeed.

These are a few ways company leadership and staff can help provide HR teams with the means to get the job done well:

  • Work together to create and maintain current policies, procedures, and employee handbooks.
  • Invest in technology and tools to support functions like payroll, record-keeping, hiring and data management.
  • Provide meaningful, relevant training.
  • Identify ways leadership and staff can collaborate and provide support.
  • Keep open lines of communication.

An experienced Southern California employer attorney can help you avoid California employment law mistakes in this area by reviewing your business practices and policies to identify areas of weakness and opportunities for improvement in HR practices and company support.

Mistake 4: Failing to Make Reasonable Accommodations

California’s FEHA and the federal Americans with Disabilities Act (ADA) require that employers provide “reasonable accommodations” to individuals with physical or mental disabilities.  These accommodations may be in areas including job duties, leave, work schedules and relocation.  Employers may also need to provide necessary aids that enable a worker to perform the job.

Notably, California employers are responsible for initiating an “interactive process” to evaluate the need and reasonableness of accommodations when they become aware of the need, whether they learn of the issue directly from the employee, from a third party or through observation.

The laws apply to all employees with a disability, regardless of their employment status (part-time versus full-time, temporary versus permanent).  To refuse accommodations, the employer must prove that meeting the need would place “undue hardship” on the business or entity.

Mistake 5: Not Complying with Local Ordinances

California employers must be aware of local ordinances that impact their operations. In Los Angeles, county and city ordinances exist relating to minimum wage, sick leave, policy notices, and record-keeping.  There are also ordinances in place to protect workers in specific industries, including freelancers and hotel, healthcare and retail workers.

The consequences of employer missteps in complying with local ordinances can be serious.  A civil action can be filed by an employee, the city or a third party for violations of Los Angeles ordinances related to employment.  The penalties for noncompliance include fees and restitution, among others.  A knowledgeable Southern California employer attorney can work with you to ensure compliance with all local ordinances that apply.

Contact the Law Offices of Susan A. Rodriguez, APC for Help Avoiding California Employment Law Mistakes

Part two of this blog series will address five additional common California employment law mistakes that employers can take steps to avoid.  In the meantime, Susan and the team at the Law Offices of Susan A. Rodriguez, APC are available to meet with you to discuss the California employment law issues discussed here as well as many others of importance to employers.  To schedule a consultation, call (213) 943-1323 or complete this online contact form.

Posted by Susan A. Rodriguez, Esq.

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For legal advice, contact an attorney at  Law Offices of Susan A. Rodriguez, APC  or an attorney actively practicing in your jurisdiction.