Current through Register 2022 Notice Reg. No. 14, April 8, 2022
As used in this chapter, the following definitions shall
apply unless the context otherwise requires:
(a) "Applicant." Any individual who files a
written application or, where an employer or other covered entity does not
provide an application form, any individual who otherwise indicates a specific
desire to an employer or other covered entity to be considered for employment.
Except for recordkeeping purposes, "Applicant" is also an individual who can
prove that he or she has been deterred from applying for a job by an employer's
or other covered entity's alleged discriminatory practice. "Applicant" does not
include an individual who without coercion or intimidation willingly withdraws
his or her application prior to being interviewed, tested or hired.
(b) "Apprenticeship Training Program." Any
apprenticeship program, including local or state joint apprenticeship
committees, subject to the provision of Chapter 4 of Division 3 of the
California Labor Code, section
individual under the direction and control of an employer under any appointment
or contract of hire or apprenticeship, express or implied, oral or written.
(1) "Employee" does not include an
independent contractor as defined in Labor Code section
(2) "Employee" does not include any
individual employed by his or her parents, by his or her spouse, or by his or
(3) "Employee" does not
include any individual employed under special license in a non-profit sheltered
workshop or rehabilitation facility.
(4) An employment agency is not an employee
of the person or individual for whom it procures employees.
(5) An individual compensated by a temporary
service agency for work to be performed for an employer contracting with the
temporary service agency is an employee of that employer for such terms,
conditions and privileges of employment under the control of that employer.
Such an individual also is an employee of the temporary service agency with
regard to such terms, conditions and privileges of employment under the control
of the temporary service agency.
"Employer." Any person or individual
engaged in any business or enterprise regularly employing five or more
individuals, including individuals performing any service under any
appointment, contract of hire or apprenticeship, express or implied, oral or
"Regularly employing" means
employing five or more individuals for any part of the day on which the
unlawful conduct allegedly occurred, or employing five or more employees on a
(A) "Regular basis" refers to
the nature of a business that is recurring, rather than constant. For example,
in an industry that typically has a three-month season during a calendar year,
an employer that employs five or more employees during that season "regularly
employs" the requisite number of employees. Thus, to be covered by the Act, an
employer need not have five or more employees working every day throughout the
year or have five or more employees at the time of the allegedly unlawful
conduct, so long as at least five employees are regularly on its payroll during
employees, including those who work partial days and fewer than each day of the
work week, will be counted the same as full-time employees. For example, for
counting purposes, an employer has five employees when three work every day and
two work alternate days to fill one position, and there are no more than four
employees working on any working day. Employees on paid or unpaid leave,
including California Family Rights Act (CFRA), parenting leave, pregnancy
leave, leave of absence, disciplinary suspension, or any other
employer-approved leave of absence, are counted.
(C) Employees located inside and outside of
California are counted in determining whether employers are covered under the
Act. However, employees located outside of California are not themselves
covered by the protections of the Act if the allegedly unlawful conduct did not
occur in California, or the allegedly unlawful conduct was not ratified by
decision makers or participants in unlawful conduct located in
means for counting five employees described in this subsection also applies to
counting employees for purposes of establishing coverage under Government Code
(3) Any person or individual acting as an
agent of an employer, directly or indirectly, is also an employer.
(4) "Employer" includes the State of
California, any political or civil subdivision thereof, counties, cities, city
and county, local agencies, or special districts, irrespective of whether that
entity employs five or more individuals.
(5) A religious association or religious
corporation not organized for private profit is not an employer under the
meaning of this Act; any non-profit religious organization exempt from federal
and state income tax as a non-profit religious organization is presumed not to
be an employer under this Act. Notwithstanding such status, any portion of such
tax exempt religious association or religious corporation subject to state or
federal income taxes as an unrelated business and regularly employing five or
more individuals is an employer.
(6) "Employer" includes any non-profit
corporation or non-profit association other than that defined in subsection
(e) "Employer or
Other Covered Entity." Any employer, employment agency, labor organization or
apprenticeship training program as defined herein and subject to the provisions
of the Act.
Agency." Any person undertaking for compensation to procure job applicants,
employees or opportunities to work.
"Employment Benefit." Except as otherwise
provided in the Act, any benefit of employment covered by the Act, including
hiring, employment, promotion, selection for training programs leading to
employment or promotions, freedom from disbarment" or discharge from employment
or a training program, compensation, provision of a discrimination-free
workplace, and any other favorable term, condition or privilege of employment.
(1) For a labor organization, "employment
benefit" includes all rights and privileges of membership, including freedom
from exclusion, expulsion or restriction of membership, second class or
segregated membership, discrimination in the election of officers or selection
of staff, or any other action against a member or any employee or person
employed by an employer.
"Employment benefit" also includes the selection or training of any person for,
or freedom from termination from, an unpaid internship or another limited
duration program to provide unpaid work experience for that person in any
apprenticeship training program or any other training program leading to
employment or promotion.
"Provision of a discrimination-free workplace" is a provision of a workplace
free of harassment, as defined in section
(h) "Employment Practice." Any
act, omission, policy or decision of an employer or other covered entity
affecting any of an individual's employment benefits or consideration for an
Organization." Any organization that exists and is constituted for the purpose,
in whole or in part, of collective bargaining or of dealing with employers
regarding grievances, terms or conditions of employment, or of providing other
mutual aid or protection.
"Person performing services pursuant to a contract." A person who meets all of
the following criteria:
1) has the right to
control the performance of the contract for services and discretion as to the
manner of performance;
customarily engaged in an independently established business; and
3) has control over the time and place the
work is performed, supplies the tools and instruments used in the work, and
performs work that requires a particular skill not ordinarily used in the
course of the employer's work.
(k) "Unpaid interns and volunteers." For
purposes of the Act, any individual (often a student or trainee) who works
without pay for an employer or other covered entity, in any unpaid internship
or another limited duration program to provide unpaid work experience, or as a
volunteer. Unpaid interns and volunteers may or may not be employees.