Login

Cal. Code Regs. tit. 2 § 11008 : Administration — Department of Fair Employment and Housing — Fair Employment and Housing Council — Discrimination in Employment — General Matters — Definitions

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 3070 et seq.
(c) "Employee." Any 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 3353.
(2) "Employee" does not include any individual employed by his or her parents, by his or her spouse, or by his or her child.
(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.
(d) "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 written.
(1) "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 regular basis.
(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 the season.
(B) Part-time 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 California.
(2) The means for counting five employees described in this subsection also applies to counting employees for purposes of establishing coverage under Government Code sections 12945.2, 12945.6, and 12950.1.
(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 (5).
(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.
(f) "Employment Agency." Any person undertaking for compensation to procure job applicants, employees or opportunities to work.
(g) "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.
(2) "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.
(3) "Provision of a discrimination-free workplace" is a provision of a workplace free of harassment, as defined in section 11019(b).
(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 employment benefit.
(i) "Labor 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.
(j) "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;
2) is 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.

Cal. Code Regs. Tit. 2, § 11008

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12925, 12926, 12940, 12941 and 12942, Government Code; Campbell v. Arco Marine, Inc. (1996) 42 Cal.App.4th 1850; Sims v. Worldpac Inc. (N.D. Cal. Feb. 22, 2013) 2013 WL 663277.

1. Change without regulatory effect renumbering former section 7286.5 to new section 11008 and amending section and Note filed 10-3-2013 pursuant to section 100, title 1, California Code of Regulations (Register 2013, No. 40).
2. Amendment of section and Note filed 12-9-2015; operative 4/1/2016 (Register 2015, No. 50).
3. Amendment of subsection (d)(1), new subsections (d)(1)(A)-(C) and repealer and new subsection (d)(2) filed 6-24-2019; operative 10/1/2019 (Register 2019, No. 26).