California has arguably the most pro-employee employment laws in the country. Employees are entitled to numerous rights and protections under California employment law, and can recover large penalties if Employers violate those rights. Moreover, Employers cannot force employees to waive their right to the protections of California employment law. As an Employer in California, it is vitally important that you know these laws and your rights and responsibilities. The following is designed to educate small business owners as to their workplace obligations to avoid costly mistakes, and to create a more harmonious environment for all.
Coronavirus 2019 (COVID-19) FAQs
Q: Is there a change to the 60-day notice requirement in the California WARN Act because of the COVID-19 pandemic?
A: Yes. Governor Newsom issued Executive Order N-31-20 (PDF), which temporarily suspends the 60-day notice requirement in the California WARN Act for those employers that give written notice to employees and satisfy other conditions. The suspension was intended to permit employers to act quickly in order to mitigate or prevent the spread of coronavirus.
The Executive Order does not suspend the California WARN Act in its entirety, nor does it suspend the law for all covered employers. The Executive Order only suspends the California WARN Act’s 60-day notice requirement for those employers that satisfy the Order’s specific conditions.
Q: What impact does the Executive Order have on an employer’s ability to close an establishment (temporarily or permanently) because of COVID-19?
A: Recognizing that employers have had to rapidly close down their businesses to prevent or mitigate the effects of the COVID-19 pandemic, but have not been able to provide their employees the usual advanced notice of at least 60 days, the Executive Order provides a conditional suspension of the usual 60-day notice requirement. For purposes of the California WARN Act, closures can occur in one of three ways:
- A mass layoff: a layoff during any 30-day period of 50 or more employees at a covered establishment. Lab. Code § 1400(d).
- A relocation: the removal of all or substantially all of the industrial or commercial operations in a covered establishment to a different location 100 miles or more away. Lab. Code § 1400(e).
- A termination: the cessation or substantial cessation of industrial or commercial operations in a covered establishment. Lab. Code § 1400(f).
Q: What conditions must an employer satisfy to qualify for the Executive Order’s suspension of the California WARN Act’s 60-day notice requirements?
A: An employer seeking to rely on the Executive Order’s suspension of the California WARN Act’s 60-day advance notice requirement must satisfy the following three conditions:
- The employer’s mass layoff, relocation or termination must be caused by COVID-19-related “business circumstances that were not reasonably foreseeable at the time that notice would have been required.”
Note: The Executive Order states that such “business circumstances” should be understood to be consistent with the identical exemption under the federal WARN Act. Exec. Order N-31-20 § 2(iii) (noting 29 U.S.C. § 2103(b)(2)(A) and 20 C.F.R. § 639.9(b)). Notably, the U.S. Department of Labor has interpreted such “business circumstances” to include “[a] government ordered closing of an employment site that occurs without prior notice.” 20 C.F.R. § 639.9(b).
- The employer must provide written notices to:
- Employees affected by the mass layoff, relocation or termination;
- The EDD; the Local Workforce Development Board; and the chief elected official of each city and county government within which the termination, relocation, or mass layoff occurs.
- The employer must provide written notice that satisfies the following requirements:
- Give as much notice as is practicable (i.e., reasonably possible) at the time notice is given.
Note: The Executive Order provides that this condition should be read to be consistent with its usage in the federal WARN Act. Exec. Order N-31-20 § 2(ii) (noting 29 U.S.C. § 2102(b)(3)). Thus, case law interpreting this provision of the federal WARN Act can provide guidance. See, e.g., Carlberg v. Guam Indus. Servs., 2017 WL 4381667, at *3 (D. Guam Sept. 30, 2017) (citing cases).
- Provide a brief statement as to why the 60-day notification period could not be met.
- Include the following information in the notice to each affected employee:
- A statement as to whether the planned action is expected to be permanent or temporary and, if the entire location is to be closed, a statement to that effect
- The expected date when the plant closing or mass layoff will commence and the expected date when the individual employee will be separated
- An indication whether or not bumping rights exist 1
- The name and telephone number of a company official to contact for further information
- The following statement: “If you have lost your job or been laid off temporarily, you may be eligible for Unemployment Insurance (UI). More information on UI and other resources available for workers is available at labor.ca.gov/coronavirus2019.”
- The notice may include additional information useful to the employees such as, if the planned action is expected to be temporary, the estimated duration, if known.
- Include the following information in the notices separately provided to the EDD, the Local Workforce Development Board, and the chief elected official of each city and county government within which the termination, relocation, or mass layoff occurs:
- Name and address of the employment site where the closing or mass layoff will occur.
- Name and phone number of a company official to contact for further information.
- Statement as to whether the planned action is expected to be permanent or temporary and, if the entire location is to be closed, a statement to that effect.
- Expected date of the first separation, and the anticipated schedule for subsequent separations.
- Job titles of positions to be affected, and the number of employees to be laid off in each job classification.
- In the case of layoffs occurring at multiple locations, a breakdown of the number and job titles of affected employees at each location.
- An indication as to whether or not bumping rights exist.
- Name of each union representing affected employees, if any.
- Name and address of the chief elected officer of each union, if applicable.
- The notice may include additional information useful to the employees such as, if the planned action is expected to be temporary, the estimated duration, if known.
Note: Please provide all of the information listed above to ensure timely processing of WARNs, and to limit the number of requests for additional information from a covered establishment.
Note: The Executive Order states that the written notices must meet the requirements of Labor Code Section 1401(b). Labor Code 1401(b) requires that an employer include in its notices the elements required by the federal WARN Act, which are listed in (3)(c) and (3)(d) above. See 29 C.F.R. §639.7.
- Give as much notice as is practicable (i.e., reasonably possible) at the time notice is given.
Notably, the federal WARN Act requires notices to any representatives of employees affected (such as their union). Federal law requires the following information in the notice to any representatives of employees affected:
- The name and address of the employment site where the plant closing or mass layoff will occur, and the name and telephone number of a company official to contact for further information
- A statement as to whether the planned action is expected to be permanent or temporary and, if the entire plant is to be closed, a statement to that effect
- The expected date of the first separation and the anticipated schedule for making separations
- The job titles of positions to be affected and the names of the workers currently holding affected jobs
- The notice may include additional information useful to the employees such as information on available dislocated worker assistance, and, if the planned action is expected to be temporary, the estimated duration, if known.
1Bumping rights provide for an employee to displace another employee due to a layoff or other employment action as defined in a collective bargaining agreement, employer policy, or other binding agreement. These rights are often created through a seniority system.
Q: How do I send the California WARN Act notices?
A: To Employees: When providing the required notice, any reasonable method of delivery that ensures receipt of notice is acceptable (e.g., first class mail, personal delivery with optional signed receipt, electronic mail, etc.).
To the EDD: Please email email@example.com and provide the following information: The notice (as an attachment or within the body of the email), and Contact information for an employer representative in the event that the EDD needs information.Attachments should be compatible with Microsoft Office or Adobe Reader software.An employer may request acknowledgment of the receipt of their notification by including a request for acknowledgement in the email.
To the Local Workforce Development Board and Chief Elected Officials:
Your Local Workforce Development Area (Local Area) will assist you in contacting the chief elected officials in those communities affected by the planned layoff or closure. Visit Local Workforce Development Area Listing by County for information on how to contact your Local Area Board.
Q: How do I know if I am an employer covered by the California WARN Act?
A: The California WARN Act is applicable to employers that employ, or have employed in the preceding 12 months, 75 or more full-time or part-time workers. Lab. Code § 1400(a).
Q: What should I do with respect to providing notice if a closure occurred on or after March 4, 2020, but before the Executive Order was issued on March 17, 2020?
A: The COVID-19 state of emergency began on March 4, 2020. Between that date and the issuance of the Executive Order, because the California WARN Act was not subject to suspension, employers should have been providing notice as specified under the Act. Now that the Executive Order is in effect, an employer seeking to avail itself of the suspension must satisfy the conditions specified in the Executive Order. For more information, refer to What conditions must an employer satisfy to qualify for the Executive Order’s suspension of the California WARN Act’s 60-day notice requirements?
Q: Do I still need to send a WARN Notice to the EDD given the Executive Order suspending the 60-day notice requirement?
A: Yes. The Executive Order does not eliminate the written notice requirement — it only reduces the notice period. An employer is required to give as much notice as is practicable (i.e., reasonably possible) at the time notice is given. Employers who order a mass layoff, relocation, or termination without any written notice could be subject to liability under the California WARN Act.
Q: If I fail to give any notice at all on the basis that the layoff or closure is due to a “physical calamity,” will I be shielded from liability?
A: Only if you can prove that the claimed physical calamity actually meets the definition of a “physical calamity.” The Executive Order does not affect the California WARN Act’s so-called “physical calamity” exemption. Lab. Code § 1401(c). That exemption permits an employer to avoid providing any notice altogether. To avail itself of the exemption, you would need to prove that the COVID-19 pandemic is a “physical calamity.” However, there are currently no precedential cases interpreting what constitutes a “physical calamity” for purposes of the California WARN Act.
By contrast, the Executive Order temporarily suspends the usual 60-day requirement for those employers that provide notice to affected employees and fulfills the Executive Order’s other conditions. You would not have to demonstrate that the COVID-19 pandemic is a “physical calamity” if you follow the conditions of the Executive Order.
Q: How long is the California WARN Act temporarily suspended by the Executive Order?
A: The Executive Order’s suspension of the California WARN Act is for the period that begins March 4, 2020, through the end of the state of emergency declared as a result of the threat of COVID-19.
Q: Where can I find more information for employers and employees in California about COVID-19?
A: Additional information and other resources are available at Labor & Workforce Development Agency – Coronavirus 2019 (COVID-19) Resources for Employers and Workers.
For more information from the EDD about COVID-19, visit:
Q: What can I do if my business has slowed down due to COVID-19?
A: If COVID-19 has impacted your business or services, you can avoid potential layoffs by participating in the Unemployment Insurance (UI) Work Sharing Program. This program allows you to retain your employees by reducing their hours and wages no more than 60 percent and partially offsetting the wage loss with UI benefits. This helps you avoid the cost of recruiting, hiring, and training new employees and helps employees keep their jobs and receive some financial support with UI benefits. You and your employees can also be prepared to quickly adjust when business improves.
Q: What if I have to let go of some of my employees temporarily until business improves?
A: Your employees can file for unemployment benefits as long as they are unemployed and otherwise eligible. Employees who expect to return to work within a few weeks are not required to actively seek work each week as long as they are able and available to return to work during their unemployment and meet all other eligibility criteria. The EDD will explain the requirements to the employees when they apply for benefits.
Q: What can an I do if I have to shut done my business permanently?
A: If you are facing potential layoffs or plant closures, you can get help through the Rapid Response program. Rapid Response teams will meet with you to discuss your needs, help avoid layoffs where possible, and support your employees through the process. Services can include upgrades to current employee skills, customized training, career counseling, job search assistance, help with filing unemployment insurance claims, and information about education and training opportunities. For more information, refer to Rapid Response Services for Businesses Fact Sheet (DE 87144RRB) (PDF) You can also contact your local America’s Job Center of California for more information about available Rapid Response services.
Work Sharing Information for Employers
Q: How does an employee qualify for Work Sharing?
A: The employee must meet the following requirements for each Work Sharing week:
- The employee must be regularly employed by an employer whose Work Sharing Plan Application has been approved by the EDD.
- The employee must be a part of the employer’s permanent regular workforce and not a leased, intermittent, temporary, or seasonal employee.
- The employee must have qualifying wages in the base quarters used to establish a regular California unemployment insurance claim.
- The reduction in each participating employee’s hours and wages must be at least 10 percent and no more than 60 percent.
- The employee must have completed a normal work week (with no hour or wage reductions) prior to participating in Work Sharing.
Q: If I have multiple locations, can I have more than one Work Sharing plan?
A: No. You can only have one Work Sharing plan per California employer account number. However, units at the same or different locations can be included in the Work Sharing plan.
Q: Can I add an existing location, employee, or work unit to an existing Work Sharing plan?
A: Yes. If you are an employer and need to add an additional location, employees, or work units to an existing Work Sharing plan, complete the Work Sharing Unemployment Insurance Plan Application (DE 8686) (PDF) for expanded coverage. You will need the following information:
- Business name.
- Business address.
- California Employer Account Number.
- Effective date of your current plan.
- Effective date of requested expanded coverage.
- Names of the additional units or locations.
- Total number of employees in the units.
- Number of additional employees who will be participating.
- Employee names and Social Security numbers.
- Normal and reduced work hours of employees.
Q: How am I charged for Work Sharing?
A: Employers are charged for Work Sharing Unemployment Insurance (UI) benefits the same way as regular UI benefits.
Q: How do I cancel the Work Sharing plan?
A: If you no longer need a Work Sharing plan, stop giving the Work Sharing forms to your participating employees until the plan expires. Refer to the notice of Work Sharing plan approval for the expiration date of the approved plan. You can also request to cancel the plan by submitting a written notice to our Special Claims Office.
Q: How many subsequent Work Sharing plans can I receive?
A: Subsequent Work Sharing plans will be approved if you continue to meet the requirements of the program. The plan is effective for 12 months and subsequent plans may be approved until your economic conditions improve.
Q: Can a holiday be used as a Work Sharing plan day?
A: No, unless employees in the same position worked during that holiday as part of their normal weekly hours. The holiday must have also occurred during the 12-month period before their employer began the Work Sharing program.
Q: How do I change my holiday schedule?
A: A holiday schedule cannot be changed unless the employer provides documentation that the Work Sharing participants worked, or did not work, during the 12-month period before the employer began participating in the Work Sharing Program.
Q: Are employees who participate in the Work Sharing plan required to serve a one week waiting period?
A: Yes, like regular UI customers, Work Sharing employees must serve a one week unpaid waiting period. The waiting period is usually the first eligible week claimed after the Work Sharing UI claim is filed.
Q: What if I can’t pay or file my payroll taxes on time due to COVID-19?
A: With the California Governor’s emergency declaration, if your business is directly affected by COVID-19, you can request up to a 60-day extension to file your state payroll reports and deposit state payroll taxes without penalty or interest. The written request for extension, noting the impact of COVID-19, must be received within 60 days from the original delinquent date of the payment or return. For the address to send the request, along with other information, please see the State of Emergency or Disaster Fact Sheet (DE 231SED) (PDF).
You can also call the EDD Taxpayer Assistance Center with any questions you may have about your payroll tax responsibilities. Toll-free from the US or Canada: 1-888-745-3886. TTY: 1-800-547-9565.
Q: What can I do to protect my employees from COVID-19?
A: The Centers for Disease Control and Prevention Guidance for Business and Employers includes basic precautions like proper handwashing and cleaning, as well as making sure your sick leave policies are flexible and consistent with public health guidance. Visit Cal/OSHA Guidance on Coronavirus to learn more about workplace requirements.
FAQs on Laws Enforced by the California Labor Commissioner’s Office
Q: Can an employee use California Paid Sick Leave due to COVID-19 illness?
A: Yes. If the employee has paid sick leave available, the employer must provide such leave and compensate the employee under California paid sick leave laws. Paid sick leave can be used for absences due to illness, the diagnosis, care or treatment of an existing health condition or preventative care for the employee or the employee’s family member.
Preventative care may include self-quarantine as a result of potential exposure to COVID-19 if quarantine is recommended by civil authorities. In addition, there may be other situations where an employee may exercise their right to take paid sick leave, or an employer may allow paid sick leave for preventative care. For example, where there has been exposure to COVID-19 or where the worker has traveled to a high risk area.
Q: If an employee exhausts sick leave, can other paid leave be used?
A: Yes, if an employee does not qualify to use paid sick leave, or has exhausted sick leave, other leave may be available. If there is a vacation or paid time off policy, an employee may choose to take such leave and be compensated provided that the terms of the vacation or paid time off policy allows for leave in this circumstance.
Q: Can an employer require a worker who is quarantined to exhaust paid sick leave?
A: No. The employer cannot require that the worker use paid sick leave; that is the worker’s choice. If the worker decides to use paid sick leave, the employer can require they take a minimum of two hours of paid sick leave. The determination of how much paid sick leave will be used is up to the employee.
Q:Can an employer require a worker to provide information about recent travel to countries considered to be high-risk for exposure to the coronavirus?
A: Yes. Employers can request that employees inform them if they are planning or have traveled to countries considered by the Centers for Disease Control and Prevention to be high-risk areas for exposure to the coronavirus. However, employees have a right to medical privacy, so the employer cannot inquire into areas of medical privacy.
Q: Is an employee entitled to compensation for reporting to work and being sent home?
A: Generally, if an employee reports for their regularly scheduled shift but is required to work fewer hours or is sent home, the employee must be compensated for at least two hours, or no more than four hours, of reporting time pay.
For example, a worker who reports to work for an eight-hour shift and only works for one hour must receive four hours of pay, one for the hour worked and three as reporting time pay so that the worker receives pay for at least half of the expected eight-hour shift.
Additional information on reporting time pay is posted online.
Q: If a state of emergency is declared, does reporting time apply?
A: Reporting time pay does not apply when operations cannot commence or continue when recommended by civil authorities. This means that reporting time pay does apply under a state of emergency, unless the state of emergency includes a recommendation to cease operations.
Q: If an employee is exempt, are they entitled to a full week’s salary for work interruptions due to a shutdown of operations?
A: An employee is exempt if they are paid at least the minimum required salary and meet the other qualifications for exemption. Federal regulations require that employers pay an exempt employee performing any work during a week their full weekly salary if they do not work the full week because the employer failed to make work available.
An exempt employee who performs no work at all during a week may have their weekly salary reduced.
Deductions from salary for absences of less than a full day for personal reasons or for sickness are not permitted. If an exempt employee works any portion of a day, there can be no deduction from salary for a partial day absence for personal or medical reasons.
Federal regulations allow partial day deductions from an employee’s sick leave bank so that the employee is paid for their sick time by using their accrued sick leave. If an exempt employee has not yet accrued any sick leave or has exhausted all of their sick leave balance, there can be no salary deduction for a partial day absence.
Deductions from salary may also be made if the exempt employee is absent from work for a full day or more for personal reasons other than sickness and accident, so long as work was available for the employee, had they chosen to work.
Q: What protections does an employee have if they suffer retaliation for using their paid sick leave?
A: The Labor Commissioner’s Office enforces several laws that protect workers from retaliation if they suffer adverse action for exercising their labor rights, such as using paid sick leave or time off related a specified school activity as outlined in question 4. Additional information on how to file a retaliation or discrimination complaint is posted online.
Given the evolving nature of this unprecedented health emergency, if you choose not to use available paid sick leave, or have no other paid leave available, employees and employers should discuss what unpaid or paid leave options may be available.
Making immigration-related threats against employees who exercise their rights under these laws is unlawful retaliation.
Emerging Workplace Violations
Employee Rights and Employer Duties Continue During a Pandemic
As COVID-19 was classified as a pandemic, with growing anxieties, it is incumbent upon Employers to be vigilant against workplace discrimination, harassment and retaliation. Employers must, however, balance their responsibility to create a safe workplace with employee rights. California’s Fair Employment and Housing Act makes it illegal for an employer to fire, fail to hire, or engage in discrimination, harassment or retaliation in any way against an employee because of their disability, race, national origin or association with either. An Employer is permitted to ask an employee to seek medical attention and get tested for COVID-19. The CDC states that employees who exhibit symptoms of influenza-like illness at work during a pandemic should leave the workplace.
National Origin & Race Discrimination
An Employer, co-worker, customer and/or vendor, cannot treat an employee worse or in a differential manner, because of race, national origin or ethnic background as it would violate the Fair Employment and Housing Act. This includes real or perceived race or national origin, and includes negative stereotypes. Some examples of this type of discrimination that may occur during the COVID-19 pandemic include: employees will not sit with co-worker because they are of Asian decent; Employer only asks employee of Chinese national origin to work remotely; or Employer only asked employee who is Chinese if they have COVID-19.
An employer should not make assumptions about an employee’s illness or health condition, real or perceived, including but not limited to assuming an employee has coronavirus or treat an employee as if they are sick.
Employer cannot ask an employee if they have a health condition that would be or could be affected by coronavirus, such as a compromised immune system. Doing so would violate privacy and disclose a confidential disability. Employers may, however, inquire about symptoms related to COVID-19.
The duty to comply with anti-discrimination laws and duty to accommodate does not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities regarding COVID-19.
Q: How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic?
A: During a pandemic, ADA-covered employers (15 or more, though good guidance for though covered by FEHA as well) may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
See, US Equal Employment Opportunity Commission: “What You Should Know about the ADA, the Rehabilitation Act and the Coronavirus” and “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act”.
An employer cannot treat an employee deferentially because of association with a person who is of a specific national origin or is believed to have coronavirus. For example, employers cannot make assumptions about family members, can result in associational discrimination.
Employers can request that employees inform them if they are planning or have travel to countries considered by the CDC and Prevention to be high-risk areas for exposure to the coronavirus. Employees, however, have a right to medical privacy, so employers cannot inquire into areas of medical privacy. Example: Disability, real and perceived including immune compromised condition. If employee has coronavirus, the employer is required to keep this information and all related medical information private and confidential.
If you have any questions regarding how the COVID-19 pandemic will legally affect your legal obligations or impact your employees, please contact me at (916) 333-4653 or Stephen_Fiegel_ESQ@comcast.net for a FREE confidential consultation to learn more.
Q:What is the minimum wage in California?
A: As of 2020, the California statewide minimum wage is $13.00 per hour for Employers with 26 or more employees, and $12.00 per hour for Employers with 25 or fewer employees. California’s minimum wage overrides the federal minimum wage of $7.25 per hour, so California employees must be paid the higher state minimum wage.
California’s minimum wage is set to increase every year until 2023. The table below shows the minimum wage rate for 2020 until 2023.
Date: Minimum Wage for Employers Minimum Wage for Employers
with 25 Employees or Less: with 26 Employees or More:
01-01-2020 $12.00/hour $13.00/hour
01-01-2021 $13.00/hour $14.00/hour
01-01-2022 $14.00/hour $15.00/hour
01-01-2023 $15.00/hour $15.00/hour
Please note that many California localities (cities and counties) have a higher minimum wage rate. If your business is located in one of these places, you must pay the higher local minimum wage. Some California cities with higher minimum wages include (but are not limited to):
- Berkeley: minimum wage of $15.59;
- Los Angeles: minimum wage of $14.25 ($13.25 for employers with less than 26 employees);
- Oakland: minimum wage of $14.14;
- San Francisco: minimum wage of $15.59; and
- San Jose: minimum wage of $15.25
Check your local city and/or county laws to see if your business is required to pay a higher minimum wage rate.
Q: Can employees in California agree to receive less than the minimum wage?
A: No. In California, employees may NOT agree to receive a wage lower than the applicable minimum wage. The minimum wage is the lowest wage rate in California, and may not be waived by agreement between Employers and employees.
Q: Are there any exceptions to minimum wage requirements in California?
A: Yes, there are several exceptions to the California minimum wage requirements. They do not apply to:
- Student employees, camp counselors and program counselors of organized camps (only need to be paid 85% of the minimum wage);
- Participants in national service programs such as AmeriCorps;
- Mentally or physically handicapped employees working for authorized nonprofits and rehabilitation facilities;
- “Outside salespersons” (employees who spend more than half of their working hours away from the Employer’s place of business, selling items or obtaining orders); or
- Workers who are classified as “independent contractors.”
Q: Can restaurant owners/operators in California use waitperson’s tips to offset the obligation to pay employees the minimum wage?
A: No. In California, Employers may not use their employees’ tips as a credit toward its obligation to pay the minimum wage. Such employees who receive a significant portion of their compensation from tips are NOT exempt from California minimum wage laws. They must be paid the same minimum wage as other California employees.
Q: What can happen to Employers in California that pay employees less than the minimum wage?
A: In California, Employers who fail to pay their employees the applicable state or local minimum wage, overtime pay, or any other compensation for any reason, may be subject to wage claims filed by employees with the California Department of Industrial Relations – Division of Labor Standards Enforcement (DLSE) which is under the direction of the State Labor Commissioner’s Office (“Labor Commissioner”). The employees may also file a lawsuit in court against Employers to recover the lost wages. Additionally, if the employees are no employed by the Employers, they can make claims for the waiting time penalty.
Please note that the Labor Commissioner has no jurisdiction over “independent contractors” and only limited jurisdiction over public employees (those who work for federal, state, county or municipal government). Additionally, the Labor Commissioner sometimes lacks jurisdiction over wage claims of union members working under collective bargaining agreements. The Labor Commissioner, however, always has authority to determine if it has jurisdiction over a wage claim.
If you have any further questions regarding the minimum wage or other issues involving compensation claims, or a claim has been filed against you with the Labor Commissioner’s Office, contact me at (916) 333-4653 or Stephen_Fiegel_ESQ@comcast.net for a FREE confidential consultation to learn more.
Q: When are Employers in California required to pay their employees overtime pay?
A: In California, Employers are required to pay their employees at least one and one-half times the normal rate of pay for time worked over 8 hours in a single day, over 40 hours in a week, and the first 8 hours worked on the seventh consecutive day of the work week. Employers must also pay double the normal rate of pay when an employee works over 12 hours in a day, or over 8 hours on the seventh consecutive day of the work week.
To be eligible, employees must be over the age of 18 and employed in a non-executive, non-administrative, non-professional job. Employees over the age of 16 may be eligible if they’re legally able to leave school to start work.
A “workday” is 24 hours long, and can start at any point in the day, but subsequent workdays should begin at the same time. Workdays do not need to coincide with the start of employees’ shifts, and Employers can set different workdays for different shifts. Once workdays are established, they can only be modified if the change is permanent and not made to avoid overtime payments.
A “workweek” is seven consecutive 24-hour periods, comprising 168 hours in total, that start on the same day and at the same time each week. A workweek can begin at any time of any day, as long as the time and day are fixed and recurring. Once established, the starting point of a workweek can only be changed if the change is permanent and not made to avoid overtime payments.
Q: Can California Employers avoid paying overtime to employees classified as “exempt?”
A: Generally, California overtime laws apply to all nonexempt employees, and the law presumes all employees are nonexempt. The burden lies with Employers to prove their employees are “exempt.” Certain employees, however, are deemed exempt and thus not entitled to overtime pay, including:
- Executives: Anyone earning more than twice the minimum wage, and also runs a company or one of its departments, and manages more than two employees with the power to hire and/or fire them and review their work.
- Administrative employees: Anyone earning more than twice the minimum wage, and whose job duties do not involve manual labor, but require specialized training and allows them to decide how and when their work is to be performed with minimal supervision.
- Professional employees: Anyone earning more than twice the minimum wage, and whose job is in law, medicine, dentistry, optometry, architecture, engineering, teaching, accounting, sciences (if it does not involve manual labor), and the arts (if their work cannot be measured by a unit of production) and allows them to decide how and when their work is to be performed with minimal supervision.
- Other professionals, like drivers, actors, student nurses, and some journalists, are also exempt from some or all aspects of California overtime law.
Some employees who may otherwise be eligible for overtime will not receive it because they work a shift pattern different from the standard five, eight-hour days in a workweek—like four 10-hour days or three 12-hour days. Even though these shifts are over eight hours in length, employees only receive overtime once they work over 40 hours in any workweek.
Paying a nonexempt employee a salary does not relieve an Employer of its obligation to pay overtime. Nonexempt employees must be paid for all hours worked, including any daily or weekly overtime.
Q: Are Employers in California in the Agricultural Industry still required to pay employees overtime pay?
A: Yes. Many California agricultural employees are now entitled to the first in a series of phased-in overtime changes. Agricultural workers have historically received time and a half pay only after 10 hours per day, but that threshold will be reduced in annual increments until 2025. There is a delay for smaller Employers and exceptions for some types of agricultural businesses.
Q: How is California overtime pay calculated?
A: In California, overtime is based on an employee’s standard hourly rate of pay. If the employee is not paid by the hour but receives an annual salary and is eligible to receive overtime payments, an hourly rate is calculated by dividing the employee’s annual salary by 52 (the number of weeks in a year) and then by 40 (the number of hours in a workweek).
If an employee receives two different rates of pay during a 40-hour workweek, their overtime pay is calculated using a weighted average of the two rates.
If an employee takes a day off during a workweek—a vacation day or a sick day, for example—these hours cannot be counted towards their overtime calculation. Accordingly, if an employee works 48 hours in a workweek, but they took one day/eight hours off, they are not eligible for overtime because they did not work more than 40 hours.
Other benefits that cannot be counted as overtime rates are discretionary bonuses (like an annual holiday bonus) because they are considered outside of an employee’s standard rate of pay. Nondiscretionary bonuses, on the other hand, are based on the number of hours worked and the quality of the work performed. As such, they are included in overtime pay calculations because they are part of the employee’s standard rate of pay.
Q:When are Employers in California required to pay their employees overtime pay?
A: In California, Employers must pay their employees overtime pay in their next paycheck. This applies whether a manager has authorized the overtime or not. Employees cannot prevent Employers from knowing that they are about to accrue overtime. Employers should have the opportunity to refuse or authorize overtime requests in advance.
Employees cannot opt out of receiving overtime payments. If eligible for overtime payments, they must receive them. If they do not receive the money owed, employees have the right to file a claim against Employers.
Q: Can employees in California refuse to work overtime?
A: Generally in California, employees have no legal basis on which to refuse to work overtime. There are, however, some exceptions under the law, or if a company policy or union contract exists that addresses this subject. There are typically no limitations on the actual amount of overtime employees can be required to work, but some employees may need to be accommodated due to disabilities and religious needs.
Q: What can happen to Employers in California who fail to pay their employees for overtime hours worked?
A: In California, employees have the right to be paid, on time, for all of their hours worked, including overtime. If Employers fail to pay employees all of the wages owed, or otherwise pay them improperly, Employers may have to pay employees not only the wages owed, but additional damages as well designed to penalize Employers for wage violations. Examples of unlawful Employer actions include:
- Not paying overtime
- Failing to pay at least minimum wage
- Requiring work during meal breaks or rest breaks
- Misclassifying employees as independent contractors
- Forcing employees to work off-the-clock
- Altering pay stubs or time cards
- Illegally deducting money from employees’ pay
- Paying employees late
- Not paying employees at all
Q: What can happen if Employers in California fail to pay their employees overtime or other wages or compensation?
A: In California, employees who are owed unpaid wages or other compensation, may file a claim with the California Labor Commissioner. The Labor Commissioner has no jurisdiction over “independent contractors” and only limited jurisdiction over public employees (those who work for federal, state, county or municipal government). The Labor Commissioner sometimes lacks jurisdiction over wage claims of union members working under collective bargaining agreements, but always has authority to determine if it has jurisdiction over a wage claim.
Employers are legally responsible to keep accurate employee time and payroll records, and to provide employees with itemized wage statements each time they are paid (or at least semimonthly). Employees are NOT required to keep their own time records.
Note that under California wage and hour laws, a so-called “exempt employee” typically have to earn at least the minimum wage as one of the conditions of being exempt.
If you have any further questions regarding overtime pay or other issues involving compensation claims with the Labor Commissioner’s Office, or you have a wage claim filed against you, contact me at (916) 333-4653 or Stephen_Fiegel_ESQ@comcast.net for a FREE confidential consultation to learn more.
Meal & Rest Periods
Q: Are Employers in California require to provide their employees with a break for lunch?
A: Generally, yes. In California, Employers must provide employees with a 30-minute meal period on or before the 5th hour of work, unless the employee’s total work period per day is 6 hours or less, then the meal period may be waived by mutual consent of the Employer and employee.
A second 30-minute meal period is required if an employee works more than 10 hours per day. If however, the total hours worked is 12 hours or less, then the second meal period may be waived by mutual consent of the Employer and employee, but only if the first meal period was not waived.
Please note that employees must be “relieved of all duty” during the entire 30-minute meal period and be free to leave the Employer’s premises. If not, the meal period shall be considered “on duty,” be counted as “hours worked” and be paid for at the employees’ regular rate of pay.
“On duty” meal periods are only permitted when the nature of the work prevents employees from being relieved of all duty, and the on duty meal period is agreed to by written agreement between the Employer and employee. An Employer and employee may not agree to an on-duty meal period unless, based on objective criteria, any employee would be prevented from being relieved of all duty based on the necessary job duties.
If Employers fail to provide employees a meal period, employers must pay employees one additional hour of pay at the employees’ regular rate of pay for each workday the meal period is not provided (not one additional hour of pay for each meal period that was not provided during that workday).
Q: Are Employers in California required to provide their employees with rest breaks during the workday?
A: Yes. In California, Employers must provide employees covered by the rest period laws a net 10-minute paid rest period for every four hours worked or major fraction thereof. Insofar as is practicable, the rest period should be in the middle of the work period. A rest period is not required for employees whose total daily work time is less than 3 1/2 hours.
The rest period is defined as a “net” ten minutes, which means that the rest period begins when employees reach an area away from the work area that is appropriate for rest. Employers are required to provide suitable resting facilities that shall be available for employees during working hours in an area separate from the toilet rooms.
Exceptions exist for certain employees of 24-hour residential care facilities whose rest periods may be limited under certain circumstances. Another exception exist for swimmers, dancers, skaters, and other performers engaged in strenuous physical activities who shall have additional interim rest periods during periods of actual rehearsal or shooting.
For employees in certain on-site occupations, Employers may stagger rest periods to avoid interruption in the flow of work and to maintain continuous operations, or they may schedule rest periods to coincide with breaks in the flow of work that occur in the course of the workday. In these occupations, rest periods need not be authorized in limited circumstances when the disruption of continuous operations would jeopardize the product or process of the work. Employers, however, must then make-up the missed rest period within the same workday or compensate employees for the missed ten minutes of rest time at the employees’ regular rate of pay within the same pay period. Rest periods must take place at Employers designated areas which may include or be limited to employees immediate work area.
A reasonable amount of break time must be afforded female employees who desire to express breast milk for the employee’s infant child. The break time shall, if possible, run concurrently with any break time already provided to employees. Break time for employees that do not run concurrently with the rest time authorized for employees need not be paid. Employers shall make reasonable efforts to provide employees with the use of a room or other location, other than a toilet stall, in close proximity to the employees’ work area, for employees to express milk in private. The room or location may include the place where employees normally work if it otherwise meets certain requirements. Employers are not required to provide employees break time for purposes of lactating if to do so would seriously disrupt the operations of the Employer.
If Employers fail to provide employees with the appropriate rest period, Employers must pay employees one additional hour of pay at employees’ regular rate of pay for each workday the rest period is not provided (not one additional hour of pay for each rest period that was not provided during that workday).
Q: Can employees in California choose to work through their rest periods so they can leave work early?
A: No. In California, working through a rest period does not entitle employees to leave work early or arrive late.
Q: Can Employers in California require their employees to stay on the work premises during their rest period?
A: No. In California, Employers cannot impose any restraints not inherent in the rest period requirement itself. That is, during rest periods Employers must relieve employees of all duties and relinquish control over how employees spend their time. As a practical matter, however, if employees are provided a ten minute rest period, employees can only travel five minutes from the job before heading back to return in time.
Q: Can Employers in California require their employees to keep in radio communication on a rest period?
A: No. In California, “on-call rest periods” are prohibited, but this rule does not apply to other types of on-call issues such as on-call shifts or on-call meal periods, which are subject to different requirements and considerations.
Q: When employees in California need to use the toilet facilities during their work period, does that count as a ten minute rest break?
A: No. In California, the 10-minute rest period is not designed to be exclusively for use of toilet facilities. California law requires suitable resting facilities be in an area “separate from toilet rooms.” The intent of the law regarding rest periods is clear: the rest period is not to be confused with or limited to breaks taken by employees to use toilet facilities.
This is not to say that Employers do not have the right to reasonably limit the amount of time employees may be absent from their work station. California law simply prohibits Employers from requiring employees to count any separate use of toilet facilities as a rest period. Employees who choose to use the toilet facilities while on an authorized break may not extend the break time by doing so.
Q: Are Employers in California required to provide their employees that smoke additional rest periods to smoke?
A: No. In California, being a smoker does NOT entitle employees to any additional breaks.
Q: Are Employers in California required to provide their female employees who are breast feeding a child with opportunities to take breaks for lactation purposes?
A: Yes. In California, if Employers do not provide female employees who are breast feeding their child with adequate break time and/or a place to express milk as provided for by California law, the employees may file a report/claim with the California Department of Industrial Relations – Division of Labor Standards Enforcement (DLSE), Bureau of Field Enforcement (BOFE) at the BOFE office nearest the place of business.
The DLSE may, after an inspection, issue Employers a civil citation ($100.00 for each violation) for violating any provision of law. Additionally, employees who are victims of retaliation for either asserting a right to lactation accommodation or for complaining to the DLSE about the failure of Employers to provide this accommodation may file a retaliation claim with DLSE pursuant to California law.
Q: What can happen if an Employer in California does not allow their employees to take rest breaks?
A: In California, if an Employer does not provide the required rest breaks, the employees can either file a wage claims with the Labor Commissioner’s Office, or file a lawsuits in court against the Employer to recover the premium of one additional hour of pay at employees’ regular rate of compensation for each workday that the rest period is not provided.
Q: How much time do employees in California have to file rest period claims with the Labor Commissioner’s Office?
A: California law provides that the remedy for meal and rest period violations of “one additional hour of pay” is a wage claim subject to a three-year statute of limitations, so claims must be filed within three (3) years of the alleged rest period violation.
Q: What happens after an employee in California files a claim with the Labor Commissioner?
A: In California, after an employee files a claim with a local Labor Commissioner’s office, it is assigned to a Deputy Labor Commissioner to determine how best to proceed. The claim can be referred to a settlement conference or hearing, or it can be dismissed.
The purpose of the conference is to determine the validity of the claim, and to see if the claim can be resolved without a hearing. If the claim is not resolved at the conference, the matter is usually referred to a hearing or dismissed for lack of evidence.
If a hearing is held, evidence is presented by the parties, and they and their witnesses testify under oath; the proceeding is recorded. After the hearing, an Order, Decision, or Award (ODA) will be served on the parties.
Either party may appeal the ODA to a civil court of competent jurisdiction. The court will set the matter for trial, with each party having the opportunity to present evidence and witnesses. The evidence and testimony presented at the Labor Commissioner’s hearing will not be the basis for the court’s decision. In the case of an appeal by the employer, DLSE may represent an employee who is financially unable to afford counsel in the court proceeding.
Q: What can happen to an Employer in California that loses a claim but doesn’t pay the employee or appeal the ODA?
A: In California, when the ODA is in the employee’s favor and there is no appeal, and the Employer does not pay the ODA, the Labor Commissioner’s Office will have the court enter the ODA as a judgment against the Employer. This judgment has the same force and effect as any other money judgment entered by the court. As such, an employee may either try to collect the judgment themselves or assign it to DLSE.
Q: Can an Employer in California take any action against their employees because they objected to the fact that they weren’t provided a rest break?
A: In California, if an Employer discriminates or retaliates against employees in any manner whatsoever (for example, the Employer discharges or suspends the employee for objecting to not being provided with rest breaks, or because the employee filed a claim or threaten to file a claim with the Labor Commissioner), the employees can file a discrimination/retaliation complaint with the Labor Commissioner’s Office. In the alternative, the employees can file a lawsuit in court against the Employer.
If you have any further questions regarding meal & rest periods or other issues involving compensation claims with the Labor Commissioner’s Office, contact me at (916) 333-4653 or Stephen_Fiegel_ESQ@comcast.net for a FREE confidential consultation to learn more.
Q: Are Employers in California required to reimburse their employees for out-of-pocket work-related expenses?
A: Yes. Generally, employees in California have the right to be reimbursed for all of their out-of-pocket business expenses.
Q: Are Employers in California required to reimburse their employees for the use of personal cell phones as part of their job?
A: Yes. In California, Employers must pay some reasonable percentage of employees’ cell phone bills when employees are required to their personal cell phones for work-related purposes. This applies even when employees have cell phone plans with limited or unlimited minutes, the phone bills are paid for by a third person, employees changed plans to accommodate worked-related cell phone usage, or employees’ phone are part of a family or group plan.
Q: Are Employers in California required to reimburse their employees for the cost of using their personal vehicles for work-related activities?
A: Yes. In California, if employees use their personal vehicles to travel on company business, Employers must reimburse employees for the cost of that travel. Employers can reimburse employees in a number of ways:
- Reimburse the “actual expenses”: Employers can reimburse employees for the actual expenses incurred by separately paying the amount of vehicle expenses including the actual costs of fuel, maintenance, repairs, insurance, registration, and depreciation.
- Reimburse using a “mileage rate”: Employees keep a record of the number of miles driven for job duties, and then multiply those miles by a predetermined amount that approximates the per-mile cost of owning and operating a vehicle. This method merely approximates the actual expenses, and is less accurate than the actual expense method.
- Reimburse with a “lump-sum payment”: Employers pay a fixed (monthly or weekly) amount of money for vehicle expense reimbursement, such as a per diem, vehicle allowance, or gas stipend. This method is generally based on the number of miles employees routinely must drive to perform their job duties, and may be used only if the amount paid is sufficient to provide full reimbursement for actual expenses incurred. Employees can challenge the amount of a lump sum payment if it is insufficient to cover the mileage expenses.
Employers are NOT required to reimburse employees for mileage driven commuting to or from work. The same goes for other transportation costs incurred in commuting to and from work.
If you have any further questions regarding employee reimbursements or other issues involving compensation claims with the Labor Commissioner’s Office, contact me at (916) 333-4653 or Stephen_Fiegel_ESQ@comcast.net for a FREE confidential consultation to learn more.
Q: What can Employers in California lawfully deduct from their employees’ wages?
A: In California, Employers can lawfully withhold amounts from employees’ wages only: (1) when required or empowered to do so by state or federal law (such as income taxes or wage garnishments); (2) when a deduction is expressly authorized in writing by the employee to cover insurance premiums, benefit plan contributions or other deductions not amounting to a rebate on the employee’s wages, or (3) when a deduction to cover health, welfare, or pension contributions is expressly authorized by a wage or collective bargaining agreement.
Please note that although a wage garnishment is a lawful deduction from wages under California law, Employers cannot discharge employees because a garnishment of wages has been threatened or if employees’ wages have been subjected to a garnishment for the payment of one judgment.
Q: What are some common examples of unlawful payroll deductions made by Employers in California?
A: Unlawful Employer deductions include:
- Gratuities. Employers cannot collect, take, or receive any gratuity or part thereof given or left for employees, or deduct any amount from wages due employees on account of a gratuity given or left for employees. A restaurant may have a policy, however, allowing for tip pooling/sharing among employees who provide direct table service to customers.
- Photographs. If Employers require a photographs of applicants or employees, Employers must pay the cost of the photographs.
- Bond. If Employers require a bond of applicants or employees, Employers must pay the cost of the bond.
- Uniforms. If Employers require employees to wear uniforms, Employers must pay the cost of the uniforms. The term “uniform” includes wearing apparel and accessories of distinctive design and color.
- Business Expenses. Employees are entitled to be reimbursed by Employers for all expenses or losses incurred in the direct consequence of the discharge of employees’ work duties.
- Medical or Physical Examinations. Employers may not withhold or deduct from the wages of employees or require prospective employees or applicants for employment to pay for pre-employment medical or physical examinations taken as a condition of employment, nor may Employers withhold or deduct from the wages of employees, or require employees to pay for medical or physical examinations required by any federal or state law or regulation, or local ordinance.
Q: Can Employers in California deduct from their employees’ wages the cost of breakage or damage to Employers’ property caused by the employees while performing their job?
A: No. In California, Employers cannot legally make such a deduction from employees’ wages if, by reason of mistake or accident a cash shortage, breakage, or loss of company property/equipment occurs. Losses occurring without any fault on the part of employees or that are merely the result of simple negligence are inevitable in almost any business operation and thus, Employers must bear such losses as a cost of doing business.
A deduction may be legal, however, if the Employer can prove that the cash shortage, breakage, or loss of company property was the result of the employee’s dishonesty, willfulness, or grossly negligent act. The law does not automatically assume, however, that an employee was dishonest, acted willfully or was grossly negligent when an Employer asserts such as a justification for making a deduction from an employee’s wages to cover a shortage, breakage, or loss to property or equipment.
The law clearly prohibits any deduction from employees’ wages which are not either authorized by employees in writing or permitted by law, and any Employer who resorts to self-help does so at its own risk as an objective test is applied to determine whether the loss was due to dishonesty, willfulness, or a grossly negligent act.
If the Employer makes such a deduction and it is later determined that the employee was not guilty of a dishonest or willful act, or grossly negligent, the employee would be entitled to recover the amount of the wages withheld. Additionally, if the employee no longer works for the Employer who made the deduction and it’s decided that the deduction was wrongful, the employee may also be able to recover the waiting time penalty.
Q: If Employers in California cannot deduct cash shortages from their employees wages unless the employees were dishonest, acted willfully or were grossly negligent, what can Employers do instead?
A: In California, Employers may subject employees to disciplinary action, up to and including termination of employment for cash shortages. Additionally, Employers can bring an action in court to try to recover any damages and/or losses it has suffered.
Q: Can Employers in California deduct anything from their employees’ paycheck if employees comes to work late?
A: Yes. In California, Employers can deduct money from employees’ paycheck for coming to work late. The deduction shall not, however, exceed the proportionate wage that would have been earned during the time actually lost, but for a loss of time less than 30 minutes, a half hour’s wage may be deducted.
Q: What can happen if an Employer in California makes an illegal deduction from their employees’ paycheck?
A: In California, Employees can either file a wage claim with the Labor Commissioner’s Office, or file a lawsuit in court against the Employer to recover the lost wages. Additionally, if an employee longer works for this Employer, the employee can make a claim for the waiting time penalty.
If you have any further questions regarding payroll deductions or other issues involving compensation, or you need legal representation once a claim has been filed, contact me at (916) 333-4653 or Stephen_Fiegel_ESQ@comcast.net for a FREE confidential consultation to learn more.
Sick Leave Pay
Q: Are Employers in California required to provide their employees with Paid Sick Leave?
A: Yes. Effective July 1, 2015, the Healthy Workplace Healthy Family Act of 2014 entitles all California employees, including part-time and temporary employees, to paid sick leave. If Employers already have a sick leave policy in place for covered employees before the new law was adopted, however, and that existing sick leave policy already satisfied the requirements of the new law, there may not have been any required changes to employees’ right to accrue and take sick leave.
Q: How do employees in California qualify for paid sick leave?
A: To qualify for sick leave in California, employees must work for the same Employer, on or after January 1, 2015, for at least 30 days within a year in California, and satisfy a 90-day employment period (similar to a probationary period) before taking any sick leave.
Q: Are employees in California entitled to paid sick leave if they work less than 30 days in California within a year?
A: In California, employees are not entitled to paid sick leave under this law if the employees work less than 30 calendar days within a year for the same Employer in California.
Q: Are employees in California entitled to paid sick leave if they work more than 30 days in California within a year but less than 90 days?
A: In California, the 90 calendar day period works like a probationary period, so if the employees work less than 90 days for the Employer, they are not entitled to take paid sick leave.
Q: When are employees in California entitled to take paid sick leave?
A: In California, qualifying employees begin to accrue paid sick leave beginning on July 1, 2015, or if hired after that date on the first day of employment. As such, employees are entitled to use (take) paid sick leave beginning on the 90th day of employment.
Q: Does paid sick leave apply to all employees who work in California?
A: Generally, yes. In California, all employees who work at least 30 days for the same Employer within a year in California, including part-time, per diem, and temporary employees, are covered by this law with some specific exceptions. Employees exempt from the paid sick leave law include:
- Employees covered by collective bargaining agreements with specified provisions
- Individuals employed by an air carrier as a flight deck or cabin crew member, if they receive compensated time off at least equivalent to the requirements of the new law
- Retired annuitants working for governmental entities
Q: Are employees in California employed by a staffing agency entitled to paid sick leave?
A: Yes. In California, employees of a staffing agency are covered by the law, so Employers or joint Employers are required to provide paid sick leave to qualifying employees.
Q: For what circumstances can employees in California use paid sick leave?
A: In California, employees may take paid sick leave for themselves or family members, for preventive care or diagnosis, care or treatment of an existing health condition, or for specified purposes if they are a victim of domestic violence, sexual assault or stalking. “Family member” include employees’ parents, children, spouses, registered domestic partners, grandparents, grandchildren, and siblings. “Preventive care” includes annual physicals or flu shots.
Employees may decide how much paid sick leave they want to use (for example, whether they want to take an entire day, or only part of a day). Employers can require employees to take a minimum of at least two hours of paid sick leave at a time, but otherwise the determination of how much time is needed is left to employees.
Q: Are employees in California required to notify their Employers before taking sick leave?
A: Generally, yes. In California, employees must notify their Employer in advance if the sick leave is planned, as may be the case with scheduled doctors’ visits. If the need is unforeseeable, employees need only give notice as soon as practical, as may occur in the case of unanticipated illness or a medical emergency.
Q: When are Employers in California required to pay their employees for sick leave?
A: In California, Employers are required to pay employees for the sick leave no later than the payday for the next regular payroll period after the sick leave was taken. This does not prevent Employers from making the adjustment in the pay for the same payroll period in which the leave was taken, but it permits Employers to delay the adjustment until the next payroll. If, for example, an employee did not clock in for a shift and therefore was not paid for it but utilized his or her paid sick leave, the Employer would have to pay the employee no later than the following pay period and account for it in the wage stub or separate itemized wage statement for that following regular pay period.
Q: How much are Employers in California required to pay their employees for the sick leave taken?
A: In California, it depends on whether employees are “exempt” or “non-exempt” employees. Non-exempt employees will be paid their regular or normal non-overtime hourly rate for the amount of time the employees took as paid sick leave. For example, if the employee took two hours of paid sick leave to attend a doctor’s appointment, the employee will be paid for those two hours at the same non-overtime hourly rate they would have earned if they had been working.
To determine the rate of pay, Employers may either:
- Calculate employees’ regular, non-overtime rate of pay for the workweek in which they used paid sick leave, whether or not the employee actually worked overtime in that workweek (in general terms, this is usually done by dividing the employee’s total non- overtime compensation by the total non-overtime hours worked), or
- Divide the employees’ total compensation for the previous 90 days (excluding overtime premium pay) by the total number of non-overtime hours worked in the full pay periods of the prior 90 days of employment.
For exempt employees, paid sick leave is calculated in the same manner the employer calculates wages for other forms of paid leave time (for example, vacation pay, paid-time off).
Q: Are Employers in California required to show their employees how much sick leave they have accrued?
A: Yes. In California, Employers must show how many days of sick leave employees have available on their pay stub, or on a document issued the same day as their paycheck. If Employers provide unlimited paid sick leave or unlimited paid time off, Employers may indicate “unlimited” on employees’ pay stub or other document provided to employees the same day as their wages.
Employers also must keep records showing how many paid sick days employees earned and used for three years. This information may be stored on documents available to employees electronically.
Q: Are Employers in California required to document the reason their employees use paid sick leave?
A: No. In California, Employers are not obligated to inquire into, or record, the purposes for which employees use paid sick leave or paid time off.
If you have any further questions regarding paid sick leave time, or you need legal representation once a claim has been filed, contact me at (916) 333-4653 or Stephen_Fiegel_ESQ@comcast.net for a FREE confidential consultation to learn more.
Q: Are Employers in California required to provide their employees with vacation time?
A: No. There is no legal requirement in California that Employers provide its employees with either paid or unpaid vacation time. However, if an Employer does have an established policy, practice, or agreement to provide paid vacation, then certain restrictions are placed on the Employer as to how it fulfills its obligation to provide vacation pay.
Q: Can Employers in California vacation plans provide that no vacation is earned during the first six months of employment?
A: Yes. California law does not preclude Employers from providing a specific period of time at the beginning of the employment relationship during which employees do not earn any vacation benefits. This could apply to a probationary or introductory period, and can even apply to the whole first year of employment. Such a provision in a vacation plan will only be recognized, however, if it is not a subterfuge (phony reason) and in fact, no vacation is implicitly earned or accrued during that first year or other period.
Q: How is vacation earned in California?
A: Paid vacation is a form of wages in California, so it is earned as labor is performed. Employers’ vacation plans may provide for the earning of vacation benefits on a day-by-day, by the week, by the pay period, or some other period basis.
In contrast to how vacation pay may be earned, the calculation of vacation pay for terminating employees (a quit, discharge, death, end of contract, etc.) who have earned and accrued and unused vacation on the books at the time of termination must be prorated on a daily basis and must be paid at the final rate of pay in effect as of the date of the separation.
Q: Can Employers in California deny their part-time employees from earning vacations?
A: Yes. In California, Employers may exclude certain classes of employees, such as part-time, temporary, casual, probationary, etc. from their vacation time plans. To avoid any misunderstandings in this area, the vacation plan/policy should state clearly and specifically which employee classification(s) are excluded.
Q: Can Employers in California have a vacation policy that requires their employees to use all of their annual vacation entitlement by the end of the year, or lose the unused balance?
A: No. In California, vacation pay is another form of wages which “vests” (meaning employees are invested or endowed with rights in the wages) as it is earned. As such, Employer policies that provide for the forfeiture of vacation pay that is not used by a specified date (known as a “use it or lose it” policy) are unlawful in California.
Q: Can Employers in California combine vacation and sick leave plans into one program and call it “paid time off” (PTO), and provide employees with a certain number of paid days each year they can take off from work for any purpose?
A: In California, a “paid time off” (PTO) plan or policy does not allow Employers to circumvent the law with respect to vacations. Where Employers replace its separate arrangements for vacation and sick leave with a program whereby employees are granted a certain number of “paid days off” each year that can be used for any purpose, including vacation and sick leave, the employees have an absolute right to take these days off. The law requires that such programs are subject to the same rules as other vacation policies.
Q: What are Employers in California required to do with an employee’s earned and accrued but unused vacation if the employee is discharged or quit his or her job?
A: Under California law, unless otherwise stipulated by a collective bargaining agreement, whenever the employment relationship ends, for any reason whatsoever, and the employee has not used all of his or her earned and accrued vacation, the Employer must pay the employee at his or her final rate of pay for all of his or her earned and accrued and unused vacation days. Because paid vacation benefits are considered wages, such pay must be included in the employee’s final paycheck.
If an Employer fails to include any unused vacation days in the employee’s final paycheck, an employee can either file a wage claim with the Labor Commissioner’s Office, or file a lawsuit in court against an Employer to recover the lost wages. Additionally, when an employee no longer works for the Employer, the employees can make a claim for the waiting time penalty.
If you have any further questions regarding vacation time or other issues involving compensation, or you need legal representation once a claim has been filed, contact me at (916) 333-4653 or Stephen_Fiegel_ESQ@comcast.net for a FREE confidential consultation to learn more.
Q: Are Employers in California required to pay their female employees the same wages as their male employees who perform substantially similar work?
A: Generally, yes. The California Equal Pay Act prohibits Employers from paying any of its employees wage rates that are less than what it pays any employees of the opposite sex, or of another race, or of another ethnicity for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.
“Substantially similar work” refers to work that is mostly similar in skill, effort, responsibility, and performed under similar working conditions. Skill refers to the experience, ability, education, and training required to perform the job. Effort refers to the amount of physical or mental exertion needed to perform the job. Responsibility refers to the degree of accountability or duties required in performing the job. Similar working conditions has been interpreted to mean the physical surroundings (temperature, fumes, ventilation) and hazards.
Q: How do employees in California prove they have been denied equal pay?
A: Under California law, employees must prove they are being paid less than any employees of the opposite sex, of another race, or of another ethnicity who are performing substantially similar work. Once employees make this showing, Employers must then prove it has a legitimate reason for the pay difference such as seniority, merit, a system that measures production, and/or a “bona fide factor” other than sex, race, or ethnicity.
Q: Can Employers in California pay certain employees more money than other employees if the employees earning more have different job titles?
A: No. In California, the Equal Pay Act compares jobs that are “substantially similar,” so the job titles that are being compared do not have to be similar or the same, only the work itself has to be “substantially similar.”
Q: Can employees in California ask their Employers how much other employees are paid?
A: Yes. In California, employees can ask their Employers about how much other employees are paid, but Employers are not required to provide that information.
Q: Can Employers in California take action against their employees for asking about other employees’ wages?
A: No. In California, Employers may not prohibit employees from disclosing their own wages, discussing the wages of others, inquiring about other employees’ wages, or aiding or encouraging other employees to exercise rights under the Equal Pay Act. Accordingly, Employers may not retaliate against employees for engaging in such conduct.
Q: Can prospective Employers in California ask job applicants what they are currently paid or were paid in the past?
A: Effective January 1, 2018, California law prohibits Employers from, either orally or in writing, personally or through an agent, asking any information concerning applicants’ salary history information, which includes compensation as well as benefits. The law also prohibits Employers from relying on applicants’ salary history information as a factor in determining whether to offer employment at all or in determining what salary to offer.
Employers may, however, seek the salary history information of applicants for employment during times when applicants worked for a public employer and applicants’ salary was disclosed or made available to the public under either the California Public Records Act or the federal Freedom of Information Act.
Employers may also ask applicants for their salary expectations for the position, as distinguished from asking what applicants earned in the past. “Applicant” has been defined to mean someone seeking employment with the Employer and who is not currently employed with that Employer.
Q: May job applicants in California voluntarily disclose their salary history information to a prospective Employer?
A: Yes. In California, applicants may voluntarily disclose their salary history information to prospective Employers, as long as it is being done without prompting from the prospective Employer. If applicants voluntarily and without prompting from the Employer discloses salary history information, the prospective Employer may factor in that voluntarily disclosed information in determining the salary for that person. Employers are, however, prohibited from relying on prior salary to justify a pay difference between employees of the opposite sex, or different race or ethnicity, who are performing substantially similar work.
Q: Are Employers in California required to provide job applicants the pay scale for an open position?
A: Yes. Upon reasonable request, Employers in California shall provide the pay scale for an open position to applicants applying for employment. A “reasonable request” has been defined to mean one made after an applicant has completed an initial interview with the Employer.
Q: How is “pay scale” defined in California?
A: California law defines “pay scale” to mean a salary or hourly wage range for a position. Employers who intend to pay a set hourly amount or a set piece rate amount, and not a pay range, may provide that set hourly rate or set piece rate in response to a reasonable request for a pay scale. It is unlawful for Employers to fail to provide a pay scale in response to a reasonable request for a pay scale.
If you have any further questions regarding equal pay or other issues involving compensation, or you need legal representation once a claim has been filed, contact me at (916) 333-4653 or Stephen_Fiegel_ESQ@comcast.net for a FREE confidential consultation to learn more.
Independent Contractor vs. Employee
Q: If an Employer in California has a worker sign an agreement stating the worker is an independent contractor, and the Employer does not make payroll deductions or withholdings for taxes or Social Security for that worker, and at the end of the year provides the worker with an IRS Form 1099 instead of a W-2, does that mean the worker is an Independent Contractor and not an employee?
A: No. In California, being labeled an independent contractor, being required to sign an agreement stating that one is an independent contractor, or being paid as an independent contractor (that is, without payroll deductions and with income reported by an IRS Form 1099 rather than a W-2), is not what determines employment status.
Nor can an Employer change a person’s status from that of an employee to one of an independent contractor by requiring a written agreement to that effect or by giving them an IRS Form 1099 instead of a W-2.
Q: Is there a test to determine whether a worker is an Independent Contractor or an employee in California?
A: Yes. California law requires the application of the “ABC test” adopted by the California Supreme Court in 2018 to determine if workers in California are employees or independent contractors. Under the ABC test, a worker is considered an employee and not an independent contractor, unless the hiring entity satisfies all three of the following conditions:
- The worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;
- The worker performs work that is outside the usual course of the hiring entity’s business; and
- The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.
Q: Are there situations where the ABC test does not apply in California?
A: Yes. Sometimes the California Legislature or the Industrial Welfare Commission (IWC) has defined the employment relationship in a specific way. In such cases, the specific language contained in the IWC wage orders, the Labor Code, or Unemployment Insurance Code will remain in effect. Additionally, where a court determines the ABC test cannot apply for a reason other than an express exception, another test, the “Borello test,” will apply. For example, if a court were to determine in a particular case that the ABC test is preempted by an applicable federal law, the Borello test would be used. Finally, the ABC test may not apply for certain occupations and contracting relationships.
If you have any further questions regarding whether you have classified workers properly as independent contractors or employees, or other issues involving compensation, contact me at (916) 333-4653 or Stephen_Fiegel_ESQ@comcast.net for a FREE confidential consultation to learn more.
Q: What does the term ” unlawful workplace discrimination” mean in California?
A: Both federal and California law provide that an employee has the right to be free from unlawful discrimination in the workplace. In California, this applies to Employers with five or more full-time or part-time employees. Unlawful workplace discrimination may be based upon an employee’s:
- religious creed (including religious dress and grooming practices);
- national origin;
- physical or mental disability;
- medical condition;
- genetic information;
- marital status;
- gender identity;
- gender expression;
- sexual orientation;
- military and veteran status;
- age (if 40 or over); or
- pregnancy, childbirth, breastfeeding or related medical conditions.
Employers that use one or more of the above listed “protected categories” of an employee to engage if any one of the adverse actions listed below, may be subjected to an unlawful workplace discrimination claim:
- refusing to hire or employ;
- refusing to select for a training program leading to employment or an unpaid internship;
- discharging from employment or from a training program leading to employment or an unpaid internship;
- discriminating in compensation or terms, conditions or privileges of employment.
If you have any further questions regarding unlawful workplace discrimination, contact me at (916) 333-4653 or Stephen_Fiegel_ESQ@comcast.net for a FREE confidential consultation to learn more.
Q: Are Employers in California required to provide their employees with sexual harassment training?
A: Yes, most Employers. Effective January, 2019, California now requires that all Employers with 5 or more employees provide 1 hour of sexual harassment and abusive conduct prevention training to non-managerial employees and 2 hours of sexual harassment and abusive conduct prevention training to managerial employees once every two years.
The training and education required by this law shall include information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment and the remedies available to victims of sexual harassment in employment.
Existing law also requires the training to include practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, retaliation, and harassment based on gender identity, gender expression, and sexual orientation and to be provided by trainers or educators with knowledge and expertise in those areas.
There is no requirement that the 5 employees or contractors work at the same location or that all work or reside in California. The definition of “employee” includes full-time, part-time, and temporary employees. Both managerial and non-managerial employees must receive training by January 1, 2020. After January 1, 2020, employees must be retrained once every two years. That means that all employees statewide must be retrained by January 1, 2022.
Q: What should Employers in California do if their employees complain they have been subjected to unwanted sexual comments and advances by another employee or their boss?
A: Both California and federal law prohibit Employers and employees from sexually harassing any workers or employees. Sexual harassment generally includes negative, inappropriate or unwanted conduct directed at a worker or employee based on a their gender, and can include unwelcome sexual advances, unwelcome requests for sexual favors, unwelcome physical contact of a sexual nature, or unwelcome verbal or visual conduct of a sexual nature. Unwelcome verbal or physical conduct of a sexual nature includes, but is not limited to, the deliberate, repeated making of unsolicited gestures or comments of a sexual nature, and/or the deliberate and repeated display of offensive sexually graphic materials which is not necessary for business purposes.
Gender does not matter in a sexual harassment case. The victim can be male or female, as can the harasser. Sexual harassment violates the law if the conduct is objectively hostile or abusive. Sexual harassment may include:
- Unwanted Physical Touching. This is generally the most obvious type of sexual harassment. In most cases, physical touching is usually more offensive than mere words or verbal abuse.
- Sexually Derogatory Comments. These comments are usually, but not always, directed toward women in the workplace, and might include, jokes, insults, slurs, or other types of verbal harassment. This is one of the most common types of sexual harassment.
- Inappropriate Propositions. A single request by a co-worker to go on a date does not usually amount to sexual harassment, unless the request is made by a supervisor. A valid claim of sexual harassment may occur, however, if the employee is subjected to repeated unwanted advances by a coworker or if the employee is punished for rejecting an advance.
- Favoritism And Unequal Treatment. This can occur when supervisors reward employees with whom they are having sex and/or punish those who refuse to have sex with them.
- Quid Pro Quo Harassment. This occurs if a manager or supervisor is requesting or demanding sexual favors in exchange for promotions or other favorable treatment.
- Isolated Incidents of sexually-charged conduct have in the past usually not been enough to rise to the level of unlawful sexual harassment even when the employee experienced several such incidents spread out over multiple years. Recently however, a single incident may be sufficient to create a sexually hostile work environment if the harassing conduct has unreasonably interfered with the victim’s work performance, or created an intimidating, hostile, or offensive working environment.
Employers are directly responsible for the actions of supervisors or other managers who act as their agents if the harassment results in tangible employment action (e.g. termination, denial of promotion). They are also responsible for harassment by supervisors and co-workers if they have knowledge of the harassment and fail to take prompt corrective action.
Q: Can Employers in California take any punitive action against an employee who files a sexual harassment claim against a co-worker, boss or the Employer?
A: In California, many employees who are sexually harassed at work are afraid to report it for fear of being fired, demoted or given other adverse treatment. It is unlawful for any Employer to retaliate against employees for reporting sexual harassment and other workplace violations.
If you have any further questions regarding sexual harassment, or you have had a claim filed against you or another in your workplace, contact me at (916) 333-4653 or Stephen_Fiegel_ESQ@comcast.net for a FREE confidential consultation to learn more.
Pregnancy & Maternity Discrimination
Q: Can Employers in California treat female employees differently at work because they are pregnant, or recently gave birth?
A: Generally, no. In California, female employees, and job applicants who are pregnant, have a pregnancy-related medical condition, or are recovering from childbirth, are protected by California and federal laws against discrimination or harassment. Pregnancy discrimination occurs when an employee or job applicant receives less favorable treatment because she is pregnant or may someday become pregnant. To establish a claim for pregnancy discrimination, an employee must prove that:
- the Employer is covered by the pregnancy discrimination laws (in California, this usually means that at least five employees work for the Employer);
- the employee either worked for the Employer or that the employee applied to work for the Employer;
- the Employer discharged or refused to hire or took some other adverse action against the employee or the employee had to leave because the circumstances were so unbearable;
- the pregnancy was a substantial motivating reason for the adverse action;
- the employee suffered some type of harm from the Employer’s action.
To establish a case of pregnancy discrimination, an employee must show that her Employer knew she was pregnant and evidence of pregnancy-discriminatory motive on her Employer’s part. The type of workers covered by pregnancy discrimination laws in California include:
- Traditional full-time employees
- Part time employees
- Temporary employees (“temps”)
- Job applicants
- Unpaid interns
In California, victims of pregnancy discrimination are eligible for backpay, punitive damages, and compensation for emotional pain and suffering.
If you have any further questions regarding pregnancy and maternity discrimination, or you have had a claim filed against you, contact me at (916) 333-4653 or Stephen_Fiegel_ESQ@comcast.net for a FREE confidential consultation to learn more.
Pregnancy Disability Leave
Q: Are Employers in California required to give their pregnant employees time off from work or provide work-related accommodations?
A: Yes. In California, employees that work for Employers with five or more employees are entitled to rights and protections under California law in the event of pregnancy, childbirth, loss of pregnancy, and related physical or mental conditions. These rights and protections include the right to reasonable accommodations and the right to time off from work.
A pregnancy disability is a physical or mental condition related to pregnancy or childbirth that prevents an employee from performing essential duties of her job, or if her job would cause undue risk to her or her pregnancy’s successful completion. Her health care provider should determine whether or not she has a pregnancy disability.
An employee is eligible if she has at least 12 months of service with the Employer (and have worked at least 1,250 hours during the previous 12-month period), and the Employer employs at least 20 employees within 75 miles of the worksite. The employee is entitled to take up to 12 weeks of parental leave to bond with a new child within one year of the child’s birth, adoption, or foster care placement.
Examples of pregnancy disability include severe morning sickness, prenatal or postnatal care, need for bed rest, gestational diabetes, pregnancy-induced hypertension, preeclampsia, post-partum depression, lactation conditions such as mastitis, loss or end of pregnancy, and recovery from loss or end of pregnancy.
Employers covered by these rules can be one or more individuals, partnerships, corporations, companies, labor organizations, apprentice training programs, employment agencies, or licensing boards.
It is unlawful for Employers to fire, refuse to hire, bar, harass, discharge, or otherwise discriminate against employees because of their pregnancy, childbirth, or a related medical condition.
Q: What type of work-related accommodations must Employers in California provide their pregnant employees?
A: In California, an employee may be entitled to accommodations if she has a pregnancy disability. Accommodations are changes to the work environment that allow her to perform her job. Examples of changes or accommodations are:
- Modifying work duties to be less strenuous.
- Use of a stool or chair while performing work duties.
- Temporary transfer to a less strenuous or hazardous job.
- Longer or more frequent breaks.
- Private lactation accommodations.
- Pregnancy Disability Leave (PDL).
- Additional leave as a reasonable accommodation at the end of PDL.
Whether an employee is entitled to any particular accommodation depends upon the circumstances of her pregnancy-related disability and her workplace.
Q: What is Pregnancy Disability Leave (PDL) in California?
A: Pregnancy Disability Leave, or PDL, is leave from work to accommodate employees with a pregnancy disability. An employee’s health care provider will recommend how long she needs to take leave from work, but she is entitled to up to four months of PDL per pregnancy. This leave is in addition to any other leave for which she may be eligible under the Fair Employment and Housing Act (FEHA), California Family Rights Act (CFRA), other state laws and local ordinances, or the Employer’s leave policies. If the Employer has a policy of providing more than four months of leave for other disabilities, then the Employer must also provide her the same leave, if required by her pregnancy-related disability.
Q: What determines if an employee in California is eligible for PDL?
A: In California, if the Employer employs five or more employees and the employee has a pregnancy disability, she is eligible for PDL. There is no minimum requirement for number of hours or years worked to be eligible. Her health care provider should recommend PDL for her to apply for it.
Q: Does an employee in California have to take her PDL all at once?
A: No. In California, the employee may take her PDL all at once or “intermittently” by taking leave in small increments, which can be hours, days, weeks or months. This could mean taking a few hours off every day, or taking a few days or weeks off at a time. For example, she could work 4 hours per day instead of 8, or work 4 days per week instead of 5, or starting work later in the day 5 days per week, or take 2 weeks off at a time, or take 4 months off at once.
Q: How do employees in California request PDL?
A: In California, employees who think they may need to take time off from work for their pregnancy-related disability, should inform the Employer as soon as possible, and if possible, give the Employer 30 days’ notice. If the employee requests it, the Employer must give her a written guarantee that she will be reinstated to her same job after PDL. The Employer may require the employee to provide a written medical certification from her health care provider substantiating her need for leave.
Q: Can Employers in California permanently replace employees who takes PDL?
A: No. In California, it is unlawful for Employers to fire employees because they are pregnant or because they take PDL. However, PDL does not protect employees from employment actions not related to her pregnancy, such as layoffs. Employers are otherwise required by law to reinstate employees to the same job she had before taking leave. In some situations, employees may be reinstated to a position that is comparable (same tasks, skills, benefits, and pay) to the job she had before taking PDL.
Q: Can Employers in California transfer employees as part of a pregnancy disability accommodation, and are Employers required to transfer employees back to their original job?
A: Yes. In California, if the Employer transfers the employee as part of a pregnancy accommodation, the Employer is required to reinstate the employee to her original job after she is no longer disabled by pregnancy. In some situations, employees may be reinstated to a comparable job (same tasks, skills, benefits, and pay).
Q: Do Employers in California have to pay their employees who takes PDL?
A: Maybe. In California, if an Employer pays employees for other temporary disability leave, then the Employer must pay the employee for her PDL. The employee will be paid if she uses paid vacation or paid time off during her PDL. The employee may also collect partial wage replacement if she pays into State Disability Insurance (SDI). She may also be eligible for paid leave through other state laws or local ordinances, such as Paid Family Leave Benefits.
Q: Does PDL count for sick or vacation time?
A: In California, Employers may require employees to use available sick leave during PDL. If Employers do not require employees to use available sick leave during PDL, the employees may use it at their discretion. Employers may not require employees to use vacation or paid time off, but employees may use vacation or paid time off at their discretion during PDL.
Q: Are Employers in California required to continue their employee’s health coverage during PDL?
A: Yes. In California, Employers are required to pay for the continuation of an employee’s group health coverage (if employees are covered by the Employer) for all four months of the PDL.
Q: Do employees in California lose seniority or benefits if they take PDL?
A: No. In California, employees will not lose seniority or benefits while taking PDL. If the Employer allows employees to accrue seniority and/or benefits while on other temporary disability leave or during sick or vacation leave, then the employees will continue to accrue seniority and/or benefits while on PDL.
Q: What happens if an employee in California is still experiencing a pregnancy disability after her four months of PDL are up?
A: In California, if an employee has completed her four months of PDL, she may be eligible for leave under CFRA and she is still entitled to “reasonable accommodation” under FEHA, which may include additional time off from work.
Q: Are employees in California entitled to leave to bond with their new child?
A: Yes – if they qualify. In California, after an employee takes PDL, she may be entitled to 12 additional weeks within 12 months of birth, adoption, or beginning of foster care, to bond with her new child under CFRA. Both parents of the child may be entitled to bonding leave. CFRA leave may be limited to 12 weeks total for both parents if both parents work at the same company. However, CFRA has different requirements than PDL. CFRA leave may also be taken to care for a sick family member.
Q: Are employees in California entitled to any leave in addition to PDL and CFRA bonding leave?
A: Maybe. The FEHA is clear that PDL operates in addition to other provisions of the Act. Therefore, the employee may be entitled to leave as a reasonable accommodation, even beyond what PDL requires. She may also be entitled to leave under the Family & Medical Leave Act (FMLA). Both parents are entitled to FMLA leave. DFEH does not enforce FMLA because it is a federal law under the jurisdiction of the United States government. Additionally, the employee may be entitled to leave under FMLA to care for a family member. Finally, the employee may be entitled to leave under local ordinances.
Q: What if the employee in California qualifies for PDL, CFRA, NPLA, and FMLA?
A: In California, employees may be entitled to take leave under each law—PDL, CFRA, NPLA, and FMLA—if they qualify. PDL and FMLA may run at the same time. CFRA will be counted separately from PDL. CFRA will also be counted separately from FMLA taken for pregnancy disability, childbirth, or related medical conditions. PDL and FMLA run at the same time because both cover pregnancy-related medical conditions. NPLA is not available to employees who qualify for FMLA and CFRA. Employees will receive an additional 12 weeks of bonding leave under CFRA or NPLA depending on which leave they qualify for.
Q: Are transgender employees in California who have a pregnancy disability eligible for PDL and other reasonable accommodations?
A: Yes. In California, transgender employees who have pregnancy disabilities are entitled to all the same rights and accommodations afforded any other employee with pregnancy-related conditions.
Q: Can employees in California be fired or otherwise punished for taking PDL or needing reasonable accommodation?
A: No. In California, it is unlawful for Employers to terminate, punish, refuse to hire, harass, or discriminate against employees for taking PDL or reasonable accommodation for their pregnancy-related condition.
Q: Can Employers in California require their employees to take PDL?
A: No. In California, Employers may not force employees to take PDL. Even if the employee chooses to not take PDL, the employee is still entitled to reasonable accommodations for her pregnancy-related condition. For example, the employee’s physician may recommend that the employee spend less time than her normal 40 hours per week at work during her pregnancy. If the employee is able to complete essential functions of her job from home, she may request telework for one day per week as a reasonable accommodation to save her PDL for after childbirth. The employer is required to grant the employee this reasonable accommodation and may not require her to use PDL instead of teleworking.
Q: What can employees in California do if they believe their rights to PDL and/or reasonable accommodations have been violated?
A: In California, if employees think their rights have been violated, they may file a complaint with DFEH within one year of the date of violation.
If you have any further questions regarding PDL, contact me at (916) 333-4653 or Stephen_Fiegel_ESQ@comcast.net for a FREE confidential consultation to learn more.
Paid Family Leave
Q: Are Employers in California required to give time off to their employees to take care of their spouses or other family members if the employees don’t have any sick leave or vacation time available?
A: Yes. In California, employees who have a loss of wages when they need to take time off work to care for a seriously ill spouse, registered domestic partner, child, parent, parent-in-law, grandparent, grandchild, sibling, or to bond with a new child entering the family through birth, adoption, or foster care placement, may be eligible for Paid Family Leave (PFL) benefits. To be eligible for PFL benefits, the employee must:
- Be unable to do his or her regular or customary work due to the need to provide care for a seriously ill family member or to bond with a new child.
- Be employed or actively looking for work at the time his or her family leave begins.
- Have lost wages because he or she were caring for a seriously ill family member or bonding with a new child.
- Have earned at least $300 from which State Disability Insurance (SDI) deductions were withheld during his or her base period.
- Complete and submit his or her claim form no earlier than the first day his or her family leave begins, but no later than 41 days after his or her family leave begins or he or she may lose benefits.
- Provide a medical certificate on his or her care claim for the seriously ill family member. The certificate must be completed by the care recipient’s physician/practitioner.
- A nurse practitioner or physician assistant may certify to the need for care within their scope of practice; however, they must perform a physical examination and collaborate with a physician or surgeon.
- If the care recipient is under the care of a religious practitioner, request a Practitioner’s Certification for Paid Family Leave (PFL) Benefits (DE 2502F), from an SDI office. Certification by a religious practitioner is acceptable only if the practitioner has been accredited by the Employment Development Department.
The Employer will be notified that the employee has submitted a PFL claim. However, the care recipient’s medical information is confidential and will not be shared with the Employer.
A “serious health condition” means an illness, injury, impairment, or physical or mental condition of a patient that involves any period of incapacity (e.g., inability to work or perform other regular daily activities) or inpatient care in a hospital, hospice, or residential medical care facility and any subsequent treatment in connection with such inpatient care; or continuing treatment by a physician/practitioner.
An independent medical examination of the care recipient may be required to determine the employee’s initial or continuing eligibility. PFL does not provide job protection, only monetary benefits; however, the employee’s job may be protected through other federal or state laws such as the Family and Medical Leave Act (FMLA), or the California Family Rights Act (CFRA).
Q: What do Employers in California do when they have an employee who is pregnant or a new Mom and she wants to take time off work?
A: In California, an employee who becomes pregnant can receive up to four weeks of Disability Insurance (DI) benefits for a normal pregnancy before her expected due date. She can also receive up to six weeks (for normal delivery) or eight weeks (for Cesarean section) of DI benefits after her delivery to recover from childbirth. New moms with an active DI-related pregnancy claim will automatically be sent a form to transition to PFL. So if you have an employee that is a pregnant mom, she needs to start with a DI claim first and transition to PFL to bond with her new baby. To be eligible for California PFL benefits, the employee must:
- Have welcomed a new child into the family in the past 12 months either through a partner’s pregnancy, adoption, or foster care.
- Have paid into State Disability Insurance (noted as “CASDI” on paystubs) in the past 5 to 18 months.
- Not have taken the maximum six weeks of PFL in the past 12 months (the six weeks leave does not have to be taken all at once).
Citizenship and immigration status do not affect eligibility.
Attention San Francisco Employers: SF Employers may be required to provide supplemental compensation to employees if they are receiving PFL benefits for bonding with a new child through birth, adoption, or foster care placement. For more information, visit the City and County of San Francisco, Office of Labor Standards Enforcement, Paid Parental Leave Ordinance.
If you have any further questions regarding PFL, contact me at (916) 333-4653 or Stephen_Fiegel_ESQ@comcast.net for a FREE confidential consultation to learn more.
New Parent Leave Act
Q: How does the New Parent Leave Act apply to Employers in California?
A: The California New Parent Leave Act guarantees time off of work for certain employees who have just had a child. The law became effective on January 1, 2018, and it provides time off from work for both mothers and fathers after: a biological child is born; a child is adopted; or a child is placed with the parents for fostering.
The New Parent Leave Act applies to: employers with 20 or more employees; and the State and any political or civil subdivision of the State and cities, regardless of the number of employees.
An employee is eligible for leave if the employee: worked for a covered employer for at least 12 months; worked at least 1,250 hours in the last 12 months before taking parental leave; and works at a work-site that has at least 20 employees within a 75-mile radius.
The new benefit is in addition to Pregnancy Disability Leave, creating the potential for a combined 7-month leave period. However, the New Parent Leave Act does not apply to an employee who is already subject to both the California Family Rights Act (CFRA) and the federal Family and Medical Leave Act (FMLA).
Eligible employees include both mothers and fathers and they are guaranteed: up to 12 weeks of job-protected parental leave; full health plan coverage during leave (coverage will be maintained during the entire time the employee is off of work to protect the health of the parent and child); and employment upon the employee’s return to the same or a comparable position.
Covered Employers must:
- Maintain and pay for health plan coverage for an eligible employee under its group plan at the level and under the conditions that coverage would have been provided if the employee had continued to work in his or her position for the duration of the leave. Employers are entitled to recover their portion of the premium should the employee fail to return to the job following leave, unless failure to return is due to a serious health condition or other circumstances beyond the employee’s control.
- Guarantee employment upon return to the job in the same or a “comparable position.”
- Permit employees to “utilize accrued vacation pay, paid sick time, other accrued paid time off, or other paid or unpaid time off negotiated with the employer, during the period of parental leave.”
“Comparable position” means:
- provides the same hourly rate or salary;
- provides the same benefits;
- requires similar or identical duties;
- requires similar experience and education;
- does not involve any kind of “demotion”
Parents who both work for the same Employer are entitled to a combined total of 12 weeks of unpaid leave under this Act. An Employer may, but is not required to, grant simultaneous leave to both employees. Employees are not entitled to payment during parental leave, but are able to use accrued time, like vacation pay, sick time, or other paid time off earned through the Employer.
Employers are not allowed to prevent employees from using accrued paid leave, or require employees to use their paid leave. This protects the rights of employees while they care for their families.
It is unlawful for Employers to deny or interfere with an employee’s right under the act. This includes:
- wrongful termination,
- refusal to hire,
- failure to promote,
- harassment, and
If an Employer violates the law, it can be held liable for its action and the damages caused to the employee. California Employers should update their Employee Handbooks and company policies to include the New Parent Leave.
If you have any further questions regarding the New Parent Leave Act, contact me at (916) 333-4653 or Stephen_Fiegel_ESQ@comcast.net for a FREE confidential consultation to learn more.
Q: Can Employers in California discipline, demote, suspend or terminate their employees for reporting alleged unlawful activity to federal or state agencies?
A: No. In California, if an employee discovers fraud or misconduct at the workplace, and takes legal action to expose that fraud or misconduct, he or she is protected against retaliation as a “whistleblower.” Under California and federal laws, employee whistleblowers may be entitled to receive a portion of the damages recovered by the government as a result of exposing the fraud. Common areas of fraud that whistleblowers expose include:
- Medicaid and Medicare Fraud
- IRS/ Tax fraud (IRS and state tax)
- Doctor and hospital overbilling practices
- Pharmaceutical overbilling schemes
- Defense contractor fraud
- Environmental harm or fraud
- Any government contract overbilling
If the Employer retaliates against the employee for filing a whistleblower claim, the employee has legal protection that includes:
- Employers may not make, adopt, or enforce any rule, regulation, or policy preventing an employee from being a whistleblower.
- Employers may not retaliate against an employee who is a whistleblower.
- Employers may not retaliate against an employee for refusing to participate in an activity that would result in a violation of a state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.
- Employers may not retaliate against an employee for having exercised his or her rights as a whistleblower in any former employment.
If you have any further questions regarding whistleblowers, contact me at (916) 333-4653 or Stephen_Fiegel_ESQ@comcast.net for a FREE confidential consultation to learn more.
Q: Do Employers in California need a justifiable reason to fire their employees from their jobs?
A: No, as long as the reason is not unlawful. Employment in California is known as “at-will.” That means Employers or employees may terminate the employment relationship at any time, for any reason, as long as the reason is not unlawful. It makes no difference whether the employee actually did anything wrong. If employees are “at-will”, then the employees can be fired for any reason at all, with some limited exceptions. Only if an Employer terminates an employee for an unlawful reason (for example workplace discrimination), can it result in a “wrongful termination” claim.
Only employees (or former employees) can bring a claim for wrongful termination. “Independent contractors” cannot bring a claim for wrongful termination, but if employees are misclassified as independent contractors, and should have been classified as employees, then the independent contractors may have other claims that they may pursue, such as claims for misclassification.
There are many situations that might give rise to a claim for wrongful termination. Some examples include (but are not limited to) being fired for:
- Having a physical or mental disability;
- Being pregnant;
- Race, gender, age, sexual orientation/gender Identity, religion, or national origin;
- AIDS/HIV status;
- Military or veteran status;
- Victim of domestic violence, stalking, or assault;
- Political beliefs or activities;
- Retaliation for being a whistleblower;
- Retaliation for complaints regarding health and safety, unpaid wages, and Labor Code violations;
- Constructive termination (when working conditions are so intolerable, that an employee is forced to quit)
Employees who are wrongfully terminated may be entitled to recover damages that may include:
- Lost wages (including back pay and front pay, benefits);
- you may also potentially be able to recover emotional distress damages (depending not the type of case you bring);
- You may also be entitled to punitive damages (depending on the type of case you bring, and if the employer’s conduct was especially reprehensible);
- You may also be able to recover attorneys fees and costs.
If you have any further questions regarding terminating employees, contact me at (916) 333-4653 or Stephen_Fiegel_ESQ@comcast.net for a FREE confidential consultation to learn more.
State Disability Insurance
Q: What can Employers in California do when an employee has been off work for more than a week because of a non-work-related medical condition, it is unknown as to when this condition will improve, or when the employee will be able to return to work, and the employee has used up all of their sick days and vacation time?
A: In California, employees who are unable to work due to their own non-work-related illness, injury, pregnancy, or childbirth and are losing wages may be eligible for short-term disability insurance (DI) benefits provided by the California State Disability Insurance (SDI) program.
To be eligible, employees must be unable to do their regular work for at least eight consecutive days, have lost wages because of the disability, and be either employed or actively looking for work when the disability began.
DI does not provide job protection or return to work rights, only monetary benefits. Their job may be protected through other federal or state laws such as the federal Family and Medical Leave Act, the California Family Rights Act, or the New Parent Leave Act.
To receive benefits, an employee must:
(1) File a claim for DI benefits using “SDI Online” or a paper claim form.
(2) Serve a seven-day, non-payable waiting period.
(3) Have at least $300 in wages that were subject to SDI contributions during your 12-month base period.
(4) Have a physician/practitioner certify to the disability by completing the Physician/Practitioner Certification.
Once a properly completed claim form is received, the California Employment Development Department (EDD) usually determines within 14 days whether the employee is eligible to receive DI benefits.
Employees are eligible to receive benefits until they recover or returns to work on the date the physician/practitioner provides to the EDD. If the employee has not fully recovered and wants to extend their disability period to continue benefits, he or she must have the physician/practitioner complete another form certifying the continued disability.
If you have any further questions regarding the SDI program, contact me at (916) 333-4653 or Stephen_Fiegel_ESQ@comcast.net for a FREE confidential consultation to learn more.
Q: Are employees in California that are terminated or quit their job, entitled to collect unemployment benefits?
A: Generally, yes, but it depends. To receive Unemployment Insurance (UI) benefit payments in California, employees must meet all eligibility requirements when filing a claim and when certifying for benefits. The employee must have earned enough wages during the base period to establish a claim (a base period is a specific 12-month term the EDD uses to see if you earned enough wages to establish a UI claim), and be:
- Totally or partially unemployed.
- Unemployed through no fault of your own.
- Physically able to work.
- Available for work.
- Ready and willing to accept work immediately.
- Actively looking for work.
Even if employees quit their employment, they may be entitled to UI benefits if they can prove good cause for quitting. Employees who are fired, however, can still collect UI benefits unless the Employers can prove they were fired due to “misconduct.”
If you have any further questions regarding unemployment insurance benefits, or you want to dispute an employee’s claim, contact me at (916) 333-4653 or Stephen_Fiegel_ESQ@comcast.net for a FREE confidential consultation to learn more.
National Labor Relations Act
Q: What are Employee Rights under the National Labor Relations Act?
A: The National Labor Relations Act (“NLRA”) is a federal law that grants Employees the right to form or join Unions; engage in protected, concerted activities to address or improve working conditions; or refrain from engaging in these activities.
Q: What is the National Labor Relations Board and what is its role?
A: The National Labor Relations Board (“NLRB”) is an independent federal agency created to enforce the NLRA. Headquartered in Washington DC, it has regional offices across the country where Employees, Employers and Unions can file charges alleging illegal behavior, or file petitions seeking an election regarding Union representation.
Q: Are all Employers in California subject to the NLRA?
A: No. The NLRA applies to most private sector Employers, including manufacturers, retailers, private universities, and health care facilities, but does not apply to federal, state, or local governments; Employers who employ only agricultural workers; or Employers subject to the Railway Labor Act (interstate railroads and airlines).
Q: Are all Employees in California protected under the NLRA?
A: No. Most Employees in the private sector are covered under the NLRA, but not government Employees, agricultural laborers, independent contractors, and supervisors (with limited exceptions).
Q: Do Employees in California have to be in a union to be protected by the NLRA?
A: No. Employees at Union and non-Union workplaces have the right to help each other by sharing information, signing petitions, and seeking to improve wages and working conditions in a variety of ways.
Q: What are an Employer’s and Union’s obligation under the NLRA?
A: Employers and Unions may not restrain or coerce Employees who are exercising their rights under the NLRA. In a Union workplace, the Employer and Union are obligated by law to bargain in good faith with each other over terms and conditions of employment, either to agreement or impasse.
Q: Do Employees in California have to pay Union dues if there is a Union at their workplace?
A: In California, yes. The question of Union dues is subject to federal and state laws and court rulings. The NLRA allows Unions and Employers to enter into agreements that require all Employees in a bargaining unit to pay Union dues. However, 27 states have banned such agreements by passing so called “right to work” laws. California is NOT a right to work state, so there is no such ban in this state.
Q: Is it legal to strike or picket an Employer?
A: Strikes and picketing are protected by the NLRA under certain conditions and to varying degrees. A Union cannot strike or picket an Employer to force it to stop doing business with another Employer who is the primary target of a labor dispute. At worksites with more than one Employer, such as a construction site, picketing is only permitted if the protest is clearly directed exclusively at the primary Employer.
Q: What can Employees in California do if they believe their rights have been violated under the NLRA?
A: If an Employee believes his or her rights have been violated under the NLRA, she or she may file a “charge” with the NLRB Regional Office, usually with the help of an Information Officer, within six months of the occurrence. The Regional Office will investigate the charge and, if found meritorious, will issue a complaint.
If you have any further questions regarding the National Labor Relations Act, contact me at (916) 333-4653 or Stephen_Fiegel_ESQ@comcast.net for a FREE confidential consultation to learn more.