Counting To 10: Simpler In Kindergarten Than In Proposition 65

California's Proposition 65 ("Prop. 65") requires businesses to provide warnings for any products that contain certain levels of chemicals determined by the State of California to cause cancer or reproductive harm. Prop. 65 is often enforced by private plaintiffs who target companies that are allegedly not providing necessary warnings. Companies with fewer than 10 employees are exempt from Prop. 65, but this exception is often more complicated than it appears. These companies can still be liable under Prop. 65 in certain situations.

For one, the definition of "employees" in Prop. 65 is borrowed from the California Labor Code and Unemployment Insurance Code, and this definition is surprisingly broad. It includes full-time and part-time employees, lawful or unlawful employees, officers or directors of a company, and some relationships that might be more commonly thought of as independent contractors. For example, there are various State law tests, such as the