On December 20, 2013, the California Attorney General Issued a Published Opinion (AG Opn. No. 12-901 12/20/13) which concludes that an owner-operated business with no employees nevertheless constitutes a “place of employment” under Labor Code section 6404.5 (which prohibits smoking in a workplace) so long as employment of any kind is carried on at the business location.
Under California law, “[n]o employer shall knowingly or intentionally permit, and no person shall engage in, the smoking of tobacco products in an enclosed space at a place of employment.” According to the Attorney General, however, this ban applies even when such employment is carried on by persons who are employed by someone other than the business owner. In such a situation, the owner-operator of a business with no direct employees may still be treated as a “secondary” or “special” employer with respect to persons who work for the business but are directly employed by someone else. Examples include those performing temporary clerical or accounting services, janitorial or maintenance services, or repair services.