Employees in California are lucky. California has arguably the most pro-employee 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. Additionally, Employers cannot force employees to waive their right to the protections of California employment law. As an employee in California, it is vitally important that you know these laws and your rights. The following is designed to educate employees as to their workplace rights to create a more harmonious environment for all.
Q: What is the minimum wage in California?
A: As of 2020, the statewide minimum wage in California 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 state minimum wage overrides the federal minimum wage of $7.25 per hour. If you work in California, you must be paid the higher state minimum wage.
California’s minimum wage is set to increase every year until 2023. The table below shows what the minimum wage will be between 2020 and 2023.
|Year||CA Minimum Wage for Employers with 26 or more employees||CA Minimum Wage for Employers with 25 or fewer employees|
Many California localities (cities and counties) have higher minimum wages, so if you work in one of these places, your Employer must pay you the higher local minimum wage. 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 Employer is required to pay a higher minimum wage rate.
Q: Can an employee in California agree to receive less than the minimum wage?
A: No. 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, who only need to be paid eighty-five percent (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; or
- “Outside salespersons” who is an employee who spends more than half of his/her working hours away from the Employer’s place of business, selling items or obtaining orders.
- Workers who are classified as “independent contractors”
Note that so-called “exempt employee” under California wage and hour laws typically have to earn at least the minimum wage as one of the conditions of being exempt.
Q: Can owners/operators of restaurants in California use waitpersons’ tips to offset the obligation to pay employees the minimum wage?
A: No. In California, Employers may not use waitpersons’ tips as a credit toward its obligation to pay the minimum wage. 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 employees in California do if their Employer pays them less than the minimum wage?
A: In California, If an Employer fails to pay employees the applicable state or local minimum wage, overtime pay, or any other compensation for any reason, the employees may either file a wage claim 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, or they may file a lawsuit in court against the Employer to recover the lost wages. Additionally, if an employee no longer work for this Employer, the employee can make a claim 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). Also, 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.
Q: What happens after an employee in California files a claim with the California Labor Commissioner?
A: After an employee files a wage claim with a local office of the California Labor Commissioner, it will be assigned to a Deputy Labor Commissioner who will determine, based upon the circumstances of the claim and information presented, how best to proceed. The matter may be referred to a settlement conference or hearing, or the claim may be dismissed.
If the claim is referred to a conference, the parties will be notified by mail of the date, time and place of the conference. 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 to referred to a hearing or dismissed for lack of evidence.
If the claim is sent to a hearing, the parties can present evidence and witnesses who will testify under oath, and the proceeding is recorded. After the hearing, an Order, Decision, or Award (ODA) of the Labor Commissioner will be served on the parties. Either party may appeal the ODA to a civil court of competent jurisdiction whereby the court will set the matter for trial, with each party having the opportunity to present evidence and witnesses. 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.
If you have any further questions regarding minimum wage or other issues involving compensation, or you need legal representation once your claim has been filed, contact my office for a FREE confidential consultation to learn more.
Q: Are employees in California entitled to a daily lunch break, and if so, for how long?
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 the employee’s total hours worked is 12 hours or less, 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.
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 employees must be paid at their regular rate of pay.
An “on duty” meal period is only permitted when the nature of the work prevents the employee 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 an Employer fails to provide an employee a meal period, the Employer must pay the employee one additional hour of pay at the employee’s regular rate of pay for each workday that the meal period is not provided (not one additional hour of pay for each meal period that was not provided during that workday).
If you have any further questions regarding meal period breaks or other issues involving compensation, or you need legal representation once your claim has been filed, contact my office for a FREE confidential consultation to learn more.
Q: Are employees in California entitled to paid rest periods during the workday?
A: Yes. Employees covered by California rest period laws are entitled 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.
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, the Employer may stagger the rest periods to avoid interruption in the flow of work and to maintain continuous operations, or 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. The Employer, however, must then make-up the missed rest period within the same workday or compensate the employee for the missed ten minutes of rest time at his or her regular rate of pay within the same pay period. Rest periods must take place at Employer designated areas which may include or be limited to the employees immediate work area.
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 the employee. Break time for an employee that does not run concurrently with the rest time authorized for the employee need not be paid. The Employer shall make reasonable efforts to provide the employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee’s work area, for the employee to express milk in private. The room or location may include the place where the employee normally works if it otherwise meets certain requirements. An Employer is not required to provide an employee break time for purposes of lactating if to do so would seriously disrupt the operations of the Employer.
The rest period is defined as a “net” ten minutes, which means that the rest period begins when the employee reaches 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.
Employer that fail to provide employees with the appropriate rest period, must pay employees one additional hour of pay at the employee’s regular rate of pay for each workday that 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 their job early?
A: No. In California, working through a rest period does not entitle employees to leave work early or arrive late.
Q: Can employees in California be required 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. 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 an employee is provided a ten minute rest period, the employee can only travel five minutes from the job before heading back to return in time.
Q: Can employees in California be required to keep in radio communication with their Employer on a rest period?
A: Generally 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 an employee in California needs 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. The law requires suitable resting facilities be in an area separate from toilet rooms. The rest period is not to be confused with or limited to breaks taken by employees to use toilet facilities.
Employers do, however, have the right to reasonably limit the amount of time an employee may be absent from his or her work station, and an employee who chooses to use the toilet facilities while on an authorized break may not extend the break time by doing so. The law simply prohibits Employers from requiring employees count any separate use of toilet facilities as a rest period.
Q: Are employees in California entitled to additional rest periods for “smoke breaks?”
A: No. In California, being a smoker does NOT entitle an employee to any additional breaks.
Q: Are employees in California who are breast feeding their child entitled to take breaks for lactation purposes?
A: Yes. In California, if Employers do not provide 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 DLSE Bureau of Field Enforcement (BOFE) at the BOFE office nearest their place of employment.
The DLSE may, after an inspection, issue to 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 rights do employees in California have if they are not afforded a rest break during their workday?
A: Employees can either file a wage claim with the Labor Commissioner’s Office, or they can file a lawsuit in court against the Employer to recover the premium of one additional hour of pay at their regular rate of compensation for each workday that the rest period is not provided.
Q: What is the applicable statute of limitations on filing a rest period claim in California?
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. Accordingly, a claim must be filed within three (3) years of the alleged rest period violation.
Q: What happens after an employee in California files a claim?
A: After a claim is filed with a local office of the Labor Commissioner, it will be assigned to a Deputy Labor Commissioner to determine how best to proceed. The claim can be referral 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 set for 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) of the Labor Commissioner will be served on the parties. Either party may appeal the ODA to a civil court of competent jurisdiction that will set the matter for trial, and each party will have the opportunity to present evidence and witnesses. 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 employees in California do if they prevail at the hearing but the Employer doesn’t pay or appeal the Order, Decision, or Award?
A: In Californial, when the employee prevails and there is no appeal, but the Employer does not pay the employee, the DLSE 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.
Q: What can an employee in California do if the Employer retaliates against the employee for filing a claim?
A: In California, if an Employer discriminates or retaliates against the employee for objecting to the Employer’s rest break policy, or files a claim, the employee can file a discrimination/retaliation complaint with the Labor Commissioner’s Office, or file a lawsuit in court against the Employer.
If you have any further questions regarding rest breaks or other issues involving compensation, or you need legal representation once your claim has been filed, contact my office for a FREE confidential consultation to learn more.
Q: What can Employers in California lawfully deduct from their employees wages?
A: Under California law, an Employer can lawfully withhold amounts from an employee’s 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 the 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: In California, unlawful Employer deductions include:
- Gratuities. An Employer cannot collect, take, or receive any gratuity or part thereof given or left for an employee, or deduct any amount from wages due an employee on account of a gratuity given or left for an employee. However, a restaurant may have a policy allowing for tip pooling/sharing among employees who provide direct table service to customers.
- Photographs. If an Employer requires a photograph of an applicant or employee, the Employer must pay the cost of the photograph.
- Bond. If an Employer requires a bond of an applicant or employee, the Employer must pay the cost of the bond.
- Uniforms. If an Employer requires that an employee wear a uniform, the Employer must pay the cost of the uniform. The term “uniform” includes wearing apparel and accessories of distinctive design and color.
- Business Expenses. An employee is entitled to be reimbursed by his or her Employer for all expenses or losses incurred in the direct consequence of the discharge of the employee’s work duties.
- Medical or Physical Examinations. An Employer may not withhold or deduct from the wages of any employee or require any prospective employee or applicant for employment to pay for any pre-employment medical or physical examination taken as a condition of employment, nor may an Employer withhold or deduct from the wages of any employee, or require any employee to pay for any medical or physical examination 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, an Employer cannot lawfully make such a deduction from an employee’s 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 the employee or that are merely the result of simple negligence are inevitable in almost any business operation and thus, the Employer must bear such losses as a cost of doing business.
A deduction may be lawful, however, if the Employer can show that the cash shortage, breakage or loss of company property was caused by the employee’s dishonest or willful act, or by the employee’s gross negligence. 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 an employee’s wages which is not either authorized by the employee in writing or permitted by law. 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: What, if anything, can an Employer in California do if an employee experiences shortages in their cash drawer?
A: In California, the Employer may subject the employee to disciplinary action, up to and including termination of employment. Additionally, the Employer can bring an action in court to try to recover any damages and/or losses it has suffered.
Q: Can an Employer in California deduct anything from their employee’s paycheck if the employee comes to work late?
A: Yes. In California, the Employer can deduct money from the employee’s 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 an employee in California do if the Employer makes an illegal deduction from the employee’s paycheck?
A: In California, the employee can either file a wage claim with the California Labor Commissioner’s Office, or file a lawsuit in court against the Employer to recover the lost wages. Additionally, if the 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 your claim has been filed, contact my office for a FREE confidential consultation to learn more.
Q: Are employees in California entitled to be reimbursed for their 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 employees in California entitled to be reimbursed for the use of their personal cell phones as part of their job?
A: Yes. In California, Employers must pay some reasonable percentage of employees’ cell phone bill when employees are required to use their personal cell phone for work-related purposes. This applies even when the employee has a cell phone plan with limited or unlimited minutes, the phone bill is 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 employees in California entitled to be reimbursed 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 automobile 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, an 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 an employee routinely must drive to perform his or her 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 reimbursement for work-related expenses, or other issues involving compensation, or you need legal representation once your claim has been filed, contact my office for a FREE confidential consultation to learn more.
Sick Leave Pay
Q: Are employees in California entitled to receive Paid Sick Leave?
A: Yes. Effective July 1, 2015, all employees in California have the right to begin accruing and taking paid sick leave. If an Employer already had 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 an employee’s 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, an employee 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, if an employee works less than 30 calendar days within a year for the same Employer in California, then that employee is not entitled to paid sick leave under this new law.
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: The 90 calendar day period works like a probationary period. If an employee works less than 90 days for the Employer, the employee is not entitled to take paid sick leave.
Q: When are employees in California entitled to take paid sick leave?
A: In California, a qualifying employee begins to accrue paid sick leave beginning on July 1, 2015, or if hired after that date on the first day of employment. An employee is 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: 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 new law with some specific exceptions. Employees exempt from the paid sick leave law include:
- Providers of publicly-funded In-Home Supportive Services (IHSS) – but only until July 1, 2018
- 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 new law. Thus, the Employer or joint Employer is required to provide paid sick leave to qualifying employees.
Q: Under what circumstances can employees in California use their paid sick leave?
A: In California, employees may take paid sick leave for themselves or a family member, 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” includes the employee’s parent, child, spouse, registered domestic partner, grandparent, grandchild, and sibling. “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 the employee.
Q: Are employees in California required to notify their Employer 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: If employees in California take paid sick leave, when will they get paid for that leave?
A: In California, the law requires an Employer to pay the employee 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 an Employer from making the adjustment in the pay for the same payroll period in which the leave was taken, but it permits an Employer to delay the adjustment until the next payroll. For example, if 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 will employees in California get paid for the sick leave taken?
A: In California, it depends on whether the employee is an “exempt” or “non-exempt” employee. A non-exempt employee will be paid their regular or normal non-overtime hourly rate for the amount of time the employee 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, the Employer may either:
- Calculate the employee’s 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 employee’s 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: How do employees in California know much sick leave they have accrued?
A: 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 an Employer provides unlimited paid sick leave or unlimited paid time off, the Employer 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 day employees earned and used for three years. This information may be stored on documents available to employees electronically.
Q: Do employees in California have to provide documentation for their use paid sick leave?
A: California law states that an Employer is not obligated to inquire into, or record, the purposes for which an employee uses paid sick leave or paid time off.
If you have any further questions regarding paid sick leave time or other issues involving compensation, or you need legal representation once your claim has been filed, contact my office for a FREE confidential consultation to learn more.
Q: Are employees in California entitled to 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 have a vacation plan that does not provide vacation time 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 an employee does 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: Can part-time employees in California be excluded from earning vacation time?
A: Yes. In California, an Employer’s vacation plan/policy may exclude certain classes of employees, such as part-time, temporary, casual, probationary, etc. To avoid any misunderstandings in this area, the vacation plan/policy should state clearly and specifically which employee classification(s) are excluded.
Q: Can employees in California be required to use all of their annual vacation time by the end of the year, or lose the unused balance?
A: No. In California, vacation pay is another form of wages which “vests” (like wages) as it is earned. As such, Employers 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) is unlawful under California law.
Q: Once an employee in California earns a certain amount of vacation hours, can a vacation policy provide that no more vacation may be earned (accrued) until the vacation balance falls below that level?
A: Yes, such a provision is lawful in California. Whereas a “use it or lose it” policy results in a forfeiture of accrued vacation pay, a “cap” simply places a limit on the amount of vacation that can accrue until the balance falls below the cap. The time periods involved for taking vacation must, of course, be reasonable. If implementation of a “cap” is a subterfuge to deny employees vacation or vacation benefits, the policy will be deemed unlawful. DLSE has repeatedly found vacation policies which provide that all vacation must be taken in the year it is earned (or in a very limited period following the accrual period) are unfair and unlawful.
Q: Can employees in California be told by the Employer when they can take their vacation?
A: Yes. In California, Employers have the right to manage its vacation pay responsibilities, and one of the ways it can do this is by controlling when vacation can be taken and the amount of vacation that may be taken at any particular time.
Q: Can employees in California that don’t use all of their vacation by the end of the year, be paid for the vacation that was earned and accrued that year, but not taken?
A: Yes, In California, Employers have the right to manage its vacation pay responsibilities. One of the ways it can do this is by paying employees off each year for vacation that they earned and accrued that year, but did not take.
Q: Can Employers in California combined vacation and sick leave plans into one program called “paid time off” (PTO) whereby their employees are entitled to take a certain number of paid days off each year 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. Such a program is subject to the same rules as other vacation policies.
Q: What happens with the earned and accrued but unused vacation time of an employee in California if the employee is discharged or quits their 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 you have any further questions regarding vacation time or other issues involving compensation, or you need legal representation once your claim has been filed, contact my office for a FREE confidential consultation to learn more.
Q: When are employees in California entitled to be paid overtime pay?
A: In California, Employers must pay employees at least one and one-half times their 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 their employees double their 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 also be eligible if they are legally allowed 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’ shift, 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 brought in to avoid overtime payments.
Q: Can an employee in California be denied overtime pay if their position is 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 an employee is “exempt.” Certain employees, however, are deemed exempt and thus not entitled to overtime pay including:
- Executives: This includes anyone who earns 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 them, review their work, and fire them.
- Administrative employees: This includes anyone who earns 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: This includes anyone who earns 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.
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 employees in California in the Agricultural Industry entitled to overtime?
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 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: 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 should employees in California receive their overtime pay?
A: In California, employees should receive overtime pay in their next paycheck. This applies whether a manager has authorized the overtime or not. Employees cannot prevent their 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 they are eligible for overtime payments, they must receive them. If they do not receive the money owed, an employee has the right to file a claim against the Employer.
Q: Can employees in California refuse to work overtime?
A: Generally, employees in California 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.
If you have any further questions regarding overtime pay or other issues involving compensation, or you need legal representation once your claim has been filed, contact my office for a FREE confidential consultation to learn more.
Q: Are female employees in California entitled to be paid the same wages as male employees who perform substantially similar work?
A: Generally, yes. The California Equal Pay Act prohibits an Employer from paying any of its employees wage rates that are less than what it pays an employee or 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. “Working conditions” mean the physical surroundings (temperature, fumes, ventilation) and hazards.
Q: What do employees in California need to prove they have been denied equal pay?
A: Under the current California law, an employee must prove that he or she is being paid less than an employee or employees of the opposite sex, of another race, or of another ethnicity who is performing substantially similar work. Once an employee makes this showing, the Employer must then prove that 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 an employee in California be paid more money than another employee who is performing similar work if the employee who earns more has a different job title?
A: No. The California Equal Pay Act compares jobs that are “substantially similar,” so the job titles that are being compared do not have to be the same. What is important is whether the work itself is “substantially similar.”
Q: Can an employee in California ask their Employer how much other employees are paid?
A: Yes, in California a employee can ask the Employer about how much other employees are paid. The law, however, does not require the Employer to provide that information.
Q: Can an employee in California be disciplined for asking about other employees’ wages?
A: No. in California an Employer may not prohibit an employee from disclosing his or her own wages, discussing the wages of others, inquiring about another employee’s wages, or aiding or encouraging any other employee to exercise rights under the Equal Pay Act. Accordingly, an Employer may not retaliate against an employee for engaging in such conduct.
Q: May a job applicant in California be asked by a prospective Employer what they are currently being paid or what they were paid in the past?
A: No. California law prohibits an Employer from, either orally or in writing, personally or through an agent, asking any information concerning an applicant’s salary history information, which includes compensation as well as benefits. The law also prohibits an Employer from relying on an applicant’s 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 the applicants worked for a public Employer and the 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: Can a job applicant in California voluntarily disclose their salary history information to a prospective Employer?
A: Yes. Under California law, an applicant may voluntarily disclose his or her salary history information to a prospective Employer, as long as it is being done without prompting from the prospective Employer. In that case, the prospective Employer may factor in that voluntarily disclosed information in determining the salary for that person. An Employer is prohibited, however, 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 as it violates the Equal Pay Act.
Q: Are Employers in California required to provide the pay scale for an open position to an applicant for that position?
A: Under California law, upon reasonable request, an Employer shall provide the pay scale for a position to an applicant applying for employment. A “reasonable request” has been defined to mean one made after an applicant has completed an initial interview with the Employer.
California law defines “pay scale” to mean a salary or hourly wage range for a position. An Employer who intends 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. An Employer who fails to provide a pay scale in response to a reasonable request for a pay scale is in violation of California law.
Q: Are public Employers in California covered by the Equal Pay Act?
A: Yes. Effective January 1, 2018, all California public Employers, such as state, county, and local agencies and entities, are covered by the Equal Pay Act, so now a public employee may file an Equal Pay Act claim against his or her public Employer.
Q: How much time does an employee in California have to file an Equal Pay Act claim?
A: Under the California Equal Pay Act, an employee must file a claim within two years from the date of the violation. If the violation is willful, then an employee has three years to file. Each paycheck that reflects unequal pay is considered a violation for the purpose of calculating the deadline for filing.
Q: Where can an employee in California go to bring a claim against their Employer for violating the California Equal Pay Act?
A: In California, an employee whose Employer has violated the California Equal Pay Act can file a claim with the California Labor Commissioner’s Office or file an action in court. An employee does not have to file a claim with the Labor Commissioner’s Office before filing an action in court.
Q: What is the procedure after an employee in California files a claim with the California Labor Commissioner’s Office?
A: The California Labor Commissioner’s Office will investigates the employee’s claim and make a determination as to whether or not the Employer violated the California Equal Pay Act. If the Labor Commissioner’s Office determines that no violation occurred, it will dismiss the claim. If the Labor Commissioner’s Office determines that a violation occurred, it will make a demand for remedies. If the Employer fails to comply with the Labor Commissioner’s demand for remedies, then the Labor Commissioner files a civil action in court to try to recover any wages, interest, and liquidated damages owed to you.
Q: Does the California Labor Commissioner Office also handle claims involving the denial of a promotion based on the employee’s gender, or does an employee need to file another claim somewhere else?
A: The Labor Commissioner’s Office only investigates the Equal Pay Act when it comes to unfair treatment based on gender. Employees that also claim discrimination in promotion based on sex can file a complaint with the California Department of Fair Employment and Housing (“DFEH”). DFEH enforces a law that prohibits discrimination based on sex, race, national origin, ancestry, in addition to other protected categories. Employees may, but are not required to, file a complaint with the DFEH if they are only claiming unequal pay based on sex, race, or ethnicity.
Q: What is an employee in California entitled to if he or she prevails in their California Equal Pay Act claim?
A: Under the California Equal Pay Act, an employee can recover the difference in wages, interest, and an equal amount as liquidated damages. If an employee files a case in court, he or she can also recover attorney’s fees and costs.
Q: Is an employee in California protected from retaliation if he or she complains about a California Equal Pay Act violation?
A: Yes, the California Equal Pay Act specifically prohibits an Employer from retaliating against an employee for “any action taken by the employee to invoke or assist in any manner” with the enforcement of the Equal Pay Act.
Q: What is the deadline for an employee in California to file a retaliation claim with the Labor Commissioner?
A: Unlike an California Equal Pay Act claim, which can be filed within two years of the date of the violation or three years, if willful, an employee must file a retaliation claim with the California Labor Commissioner within six months of the retaliation. Alternatively, an employee may file a civil action for retaliation in court within one year of the retaliation. An employee does not have to file a retaliation claim with the Labor Commissioner before filing an action in court.
Q: What are employees in California entitled to if they prevail in a retaliation claim?
A: Under California law, an employee who prevails in a retaliation claim may be awarded reinstatement, back pay, interest on back pay, and possibly other remedies.
If you have any further questions regarding equal pay or other issues involving compensation, or you need legal representation once your claim has been filed, contact my office for a FREE confidential consultation to learn more.
Independent Contractor vs. Employee
Q: If a worker in California signs 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 in California to determine whether a worker is an Independent Contractor or an employee?
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 will not apply?
A: Yes. Sometimes the Legislature or the Industrial Welfare Commission 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 are classified properly as an independent contractor or an employee, or other issues involving compensation, contact my office for a FREE confidential consultation to learn more.
Q: What can an employee in California do if he or she believes they have been discriminated at their workplace?
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 any employer 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.
Unlawful workplace discrimination may include:
- 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.
To determine whether you have been subjected to unlawful workplace discrimination, contact my office for a FREE confidential consultation to discuss your rights, your options, and the available remedies you might have. These types of claims must be brought within a very narrow time window, so the longer you wait, the less likely that you will be able to prevail on your claim.
Pregnancy Disability Leave
Q: If an employee in California is pregnant and having some medical issues related to her pregnancy, can she take time off work or seek some work-related accommodations without fearing any reprisals from her Employer?
A: Yes. If a California Employer has five or more employees, an employee is 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 someone because of pregnancy, childbirth, or a related condition.
Q: What can an employee in California do if her doctor places restrictions on her due to her pregnancy?
A: In California, an employee may be entitled to workplace accommodations if she has a pregnancy disability. Accommodations are changes to the work environment that allow her to perform your 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 will depend upon the circumstances of her pregnancy-related disability and her workplace.
Q: What is Pregnancy Disability Leave (PDL)?
A: Pregnancy Disability Leave, or PDL, is leave from work to accommodate employees with a pregnancy disability. The 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 her employer’s leave policies. If her 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: Do employees in California have to take their PDL all at once?
A: No. In California, an employee may take her PDL all at once or “intermittently.” Intermittent PDL is 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 start 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, if an employee thinks she may have to take time off from work for her pregnancy-related disability, she should inform her Employer as soon as possible. If possible, give the Employer 30 days’ notice. The Employer must give the employee a written guarantee that she will be reinstated to her same job after PDL, if she request it. The Employer may require that the employee provide a written medical certification from her health care provider substantiating her need for leave.
Q: Will employees in California lose their job if they take PDL?
A: In California, it is unlawful for an Employer to fire an employee because she is pregnant or because she takes PDL. PDL does not, however, protect the employee from employment actions not related to her pregnancy, such as layoffs. Employers are otherwise required by law to reinstate the employee to the same job she had before taking leave. In some situations, the employee may be reinstated to a position that is comparable (same tasks, skills, benefits, and pay) to the job she had before taking PDL.
Q: If an employee in California is transferred as part of pregnancy disability accommodation, will she be transferred back to her original job?
A: Yes. In California, the Employer is required to reinstate the employee to her original job after she is no longer disabled by pregnancy. In some situations, the employee may be reinstated to a comparable job (same tasks, skills, benefits, and pay).
Q: Will the employee in California be paid if she takes PDL?
A: Maybe. In California, if the 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). The employee may also be eligible for paid leave through other state laws or local ordinances, such as Paid Family Leave Benefits.
Q: Will PDL count for sick or vacation time?
A: In California, the Employer may require the employee to use available sick leave during PDL. If the Employer does not require the employee to use available sick leave during PDL, the employee may use it at her discretion. The Employer may not require the employee to use vacation or paid time off. The employee may use vacation or paid time off at her discretion during PDL.
Q: Will an employee in California continue to be covered by the Employer’s group health coverage during PDL?
A: Yes. In California, the employer is required to pay for the continuation of the employee’s group health coverage (if the employee is covered by the Employer) for all four months of her PDL.
Q: Will the employee in California lose seniority or benefits if she takes PDL?
A: No. In California, the employee 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 employee will continue to accrue seniority and/or benefits while on PDL.
Q: What happens if the employee in California is still experiencing a pregnancy disability after her four months of PDL are up?
A: In California, if the 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: Can a transgender employee in California who has a pregnancy disability be 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 an employee in California be fired or otherwise punished for taking PDL or needing reasonable accommodation?
A: No. In California, it is unlawful for an Employer to terminate, punish, refuse to hire, harass, or discriminate against an employee for taking PDL or reasonable accommodation for her pregnancy-related condition.
Q: Can an employee in California be required to take PDL?
A: No. In California, an Employer may not force an employee 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, a physician may recommend that the employee spend less time than her normal 40 hours per week at work during her pregnancy, or 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’s reasonable accommodation and may not require her to use PDL instead of teleworking.
Q: What can an employee in California do if she believes her rights to PDL and/or reasonable accommodation have been violated?
A: In California, if an employee believes her rights have been violated, she may file a complaint with DFEH within one year of the date of violation.
If you have any further questions regarding pregnancy disability leave, or other issues involving compensation, contact my office for a FREE confidential consultation to learn more.
Pregnancy & Maternity Discrimination
Q: Can an employee in California be treated differently at work because she is pregnant, or just recently gave birth?
A: That depends. 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 the Employer knew she was pregnant and evidence of pregnancy-discriminatory motive on the 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.
To determine whether you have been unlawfully discriminated against because of your pregnancy, a pregnancy-related medical condition, or are recovering from childbirth, contact my office for a FREE confidential consultation to discuss your rights, your options, and the available remedies you might have. These types of claims must be brought within a very narrow time window, so the longer you wait, the less likely that you will be able to prevail on your claim.
Q: Are employees in California entitled to receive sexual harassment training?
A: Yes. Effective January, 2019, California now requires that all Employers of 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.
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 does an employee in California do if they have been subjected to unwanted sexual comments and/or advances at work by another employee or 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 based on a worker’s 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. Physical touching is usually more offensive than mere words or verbal abuse, in most cases.
- Sexually Derogative Comments. These comments are usually 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 type 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.
Every sexual harassment case results in an emotional loss to the victim. The loss might include mental suffering, loss of enjoyment of life, grief, anxiety, humiliation, and emotional distress. These are very real losses and can manifest in physical forms of:
- Appetite disruption
- Self-isolation difficulty concentrating
- Panic attacks or anxiety
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: If an employee in California files a sexual harassment claim against a co-worker, a boss or the Employer, can the employee be demoted, suspended, or terminated?
A: No. 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. Remember, Employers are prohibited from retaliating against employees for reporting sexual harassment and other workplace violations.
To determine whether you have been subjected to unlawful sexual harassment or workplace retaliation, contact my office for a FREE confidential consultation to discuss your rights, your options, and the available remedies you might have. The time to bring a sexual harassment and a retaliation claim is very short, and it is important to make sure that you do not lose your right to bring such a claim.
Q: What protections do employees in California have it they discover that their boss or Employer has engaged in unlawful activity and report it?
A: 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.” The purpose of the whistleblower laws is to motivate employees to confront and expose corruption, even if it might threaten their jobs or lives. Under California and federal laws, an employee whistleblower 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
Oftentimes, whistleblowers will face unlawful discrimination and workplace retaliation from their Employers for such actions. If the Employer retaliates against the employee for filing a whistleblower claim, the employee has legal protection that includes an Employer may not:
- Make, adopt, or enforce any rule, regulation, or policy preventing an employee from being a whistleblower.
- Retaliate against an employee who is a whistleblower.
- 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.
- Retaliate against an employee for having exercised his or her rights as a whistleblower in any former employment.
To determine whether you have been subjected to unlawful workplace retaliation and are protected as a “whistleblower,” contact my office for a FREE confidential consultation to discuss your rights, your options, and the available remedies you might have. The time to bring such a claim is very short, and it is important to make sure that you do not lose your right to bring a claim.
Q: Can an employee in California be fired from their job for no valid reason?
A: That depends. California is known as an “at-will” employment state. Thus, an Employer or an employee 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 the employee is “at-will”, then the employee 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.”
Only an employee (or a former employee) can bring a claim for wrongful termination. “Independent contractors” cannot bring a claim for wrongful termination, but if an employee was misclassified as an independent contractor, and should have been classified as an employee, then the independent contractor may have other claims that he 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.
To determine whether you have been “wrongfully terminated,” contact my office for a FREE confidential consultation to discuss your rights, your options, and the available remedies you might have. The time to bring a wrongful termination claim is very short, and it is important to make sure that you do not lose your right to bring a such claim.
State Disability Insurance
Q: What can employees in California do if they are unable to work for more than a week due to a medical condition, don’t know when the condition will get better, when they will be able to return to work, and 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 disability insurance benefits. The California State Disability Insurance (SDI) program is an employee-funded program that provides short-term Disability Insurance (DI) benefits to eligible employees.
To be eligible, an employee must be unable to do their regular work for at least eight consecutive days, have lost wages because of their disability, and be either employed or actively looking for work at the time the disability began.
DI does not provide job protection or return to work rights, only monetary benefits. However, the employee’s 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.
The employee is eligible to receive benefits until the employee recovers 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 the disability period to continue benefits, the employee must have the physician/practitioner complete another form certifying the continued disability.
If the employee is disqualified from receiving DI benefits, he or she will receive an Appeal Form (DE 1000A) with the disqualification notice. The employee has the right to appeal any disqualification within 30 days of the issue of the notice from the SDI program. Complete the form with a detailed explanation of why the employee believes the disqualification is in error. The EDD will evaluate the detailed facts the employee provides in their Appeal form and notify he or she of its findings.
If the EDD is not able to issue the employee payments, the appeal form will be forwarded to the California Unemployment Insurance Appeals Board local Office of Appeals. The Office of Appeals will mail the employee a notification with the hearing date, time, location, and their phone number. At the hearing, an impartial Administrative Law Judge will listen to both sides of the appeal and make a determination based on the facts presented by the employee and by an SDI representative.
To determine whether you are entitled to DI benefits, or you have received a disqualification notice from EDD and notice of appeal, contact my office for a FREE confidential consultation to discuss your rights, your options, and the available remedies you might have. The time to bring a claim is very short, and it is important to make sure that you do not lose your right to bring a such claim or file an appeal.
Paid Family Leave
Q: Can an employee in California take time off from work to care for an ill spouse or other family member but don’t have sick leave or vacation time available?
A: Yes. In California, workers 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 their 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 your family leave begins.
- Have lost wages because they 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 their base period.
- Complete and submit a claim form no earlier than the first day the family leave begins, but no later than 41 days after the family leave begins or they may lose benefits.
- Provide a medical certificate on the 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.
Unless complications arise, cosmetic treatments, the common cold, influenza, earaches, upset stomach, minor ulcers, and headaches other than migraines, are examples of conditions that do not meet the definition of a serious health condition for purposes of PFL.
An independent medical examination of the care recipient may be required to determine the 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: Are employees in California who are pregnant or recently gave birth eligible for any benefits?
A: Yes. In California, an employee who is a pregnant mom can receive up to four weeks of Disability Insurance (DI) benefits for a normal pregnancy before the expected due date. The employee can also receive up to six weeks (for normal delivery) or eight weeks (for Cesarean section) of DI benefits after the 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’re a pregnant mom, start with a DI claim first and transition to PFL to bond with the new baby. To be eligible for California PFL benefits, an 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.
- Fun fact: You can break up your six weeks of leave. You don’t have to take it all at once!
Citizenship and immigration status do not affect eligibility.
San Francisco workers: The Employer may be required to provide supplemental compensation to an employee if he or she is 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 California Paid Family Leave, contact my office for a FREE confidential consultation to learn more.
New Parent Leave Act
Q: What is the California New Parent Leave Act, and how does it apply to employees in California?
A: The California New Parent Leave Act (NPLA) guarantees time off of work for certain employees who have just had a child. The law became effective on January 1, 2018. Both mothers and fathers are eligible for time off of work after:
- a biological child is born;
- a child is adopted; or
- a child is placed with the parents for fostering.
The NPLA 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.
To be eligible for leave, the employee must:
- 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 worksite 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. The NPLA does not, however, 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 mothers and fathers and they are guaranteed:
- up to 12 weeks of job-protected parental leave;
- full health plan coverage during leave; and
- employment upon the employee’s return to the same or a “comparable position.”
A “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.
Eligible 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.”
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 his or her 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 illegal for an employer 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.
If you have any further questions regarding the California New Parent Leave, contact my office for a FREE confidential consultation to learn more.
Q: Is an employee in California who is fired or quits entitled to unemployment benefits?
A: That depends. To receive Unemployment Insurance (UI) benefit payments in California, the employee must meet all eligibility requirements when filing a claim and when certifying for benefits. When filing for UI 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 the employee earned enough wages to establish a UI claim), and be:
- Totally or partially unemployed.
- Unemployed through no fault of their own.
- Physically able to work.
- Available for work.
- Ready and willing to accept work immediately.
- Actively looking for work.
Even if an employee quits the employment, the employee may be entitled to UI benefits if he or she can prove good cause for quitting. If the employee is fired, however, the employer must prove there was “misconduct.”
To request benefit payment, the employee must complete and file a form online, by phone, or by mail. If the information provided shows that the employee did not meet eligibility requirements, EDD will schedule a phone interview to determine the eligibility. If the employee or the Employer disagrees with EDD’s decision to deny benefits, either may file an appeal.
To determine whether you qualify for UI benefits, or if you have received a disqualification notice from EDD and notice of appeal, contact my office for a FREE confidential consultation to discuss your rights, your options, and the available remedies you might have. The time to bring a UI claim or file an appeal is very short, and it is important to make sure that you do not lose your right to bring a such claim, or file an appeal.
National Labor Relations Act
Q: What is 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: Which Employers in California are subject to the NLRA?
A: The NLRA applies to most private sector Employers, including manufacturers, retailers, private universities, and health care facilities, but it 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, or supervisors (with limited exceptions).
Q: Is Union membership required for employees in California 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: Are employees in California required to pay Union dues if there is a Union at their workplace?
A: Usually, yes. 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 in California?
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 my office for a FREE confidential consultation to learn more.
Union Employee Rights
Q: What are Weingarten Rights for Union Employees?
A: In 1975 the United States Supreme Court in the case of NLRB v. J. Weingarten, upheld a National Labor Relations Board (NLRB) decision that employees have a right to union representation during investigatory interviews. These rights have become known as the Weingarten rights.
If an employee has a reasonable belief that discipline or other adverse consequences may result from what he or she says, the employee has the right to request union representation. When the employee makes the request for a union representative to be present management has three options:
(1) it can stop questioning until the representation arrives.
(2) it can call off the interview or,
(3) it can tell the employee that it will call off the interview unless the employee voluntarily gives up his/her rights to union representation (an option the employee should always refuse).
The NLRB ruled that the employee must request representation, and once the employee invokes his or her Weingarten rights, he or she cannot be asked any questions without a union representative present. The NLRB stated that “any attempt by the employer to force the employee to answer questions or intimidate the employee will taint the session.
Q: Who do Weingarten rights apply to?
A: An employee’s Weingarten rights only apply in certain workplace situations where: The employer is conducting an examination in connection with an investigation. The employee has an objectively reasonable belief that discipline could result.
Q: Do non-union members have Weingarten rights?
A: No. Specifically, the Board has determined that so-called Weingarten rights do not apply to nonunion employees. Weingarten rights enable union workers to insist on having a representative present during investigatory interviews that could reasonably result in discipline.
Q: Does Weingarten apply to public employees?
A: The NLRA does not apply to public sector employees employed by state governments. Whether a similar right exists for these unionized public sector employees is based on state law, not Weingarten rights.
Q: Can an employee bring a lawyer to an HR meeting?
A: Generally speaking, an employee cannot bring his/her lawyer to a meeting at work. There is no absolute right to counsel that affords employees the right to have an attorney involved in employment matters.
If you have any further questions regarding Weingarten rights, contact my office for a FREE confidential consultation to learn more.
Disability Retirement & Industrial Disability Retirement
California Public Employees Retirement System (CalPERS)
Q: If an employee of the State of California is unable to continue working due to a medical condition, what are their options?
A: California State employees are generally members of the California Public Employees Retirement System (CalPERS). CalPERS Disability or Industrial Disability Retirement pay a monthly benefit to the employee for life or until recovery from a disabling injury or condition. The be eligible, an employee must be “substantially incapacitated from the performance of duty.” This “substantial incapacity” must be due to a medical condition of permanent or extended and uncertain duration (lasting longer than 6 months), on the basis of competent medical opinion. The cause of the disability does not need to be related to the employment to qualify for Disability Retirement benefits. The inability to perform the job duties must be due to a job-related injury or illness, however, to qualify for Industrial Disability Retirement benefits.
To be eligible for Disability Retirement benefits, an employee must be:
- A local miscellaneous employee
- Vested (must have 5 years credited service in Tier 1; 10 years credited service on Tier 2)
- Of no minimum age
To be eligible for Industrial Disability Retirement, an employee must be
- A safety employee
- A peace officer/firefighter
- A patrol officer
- A local safety employee
- A certain State/local miscellaneous employee
- A State industrial employee (with exception)
- Of no minimum age or service time
Once an employee is unable to perform the job because of an illness or injury which is expected to be permanent or last longer than six months, the employee (or someone on the employee’s behalf) should submit an application for Disability Retirement. The condition does not have to be permanent and stationary before an application is submitted and the employee should not wait until the outcome of a workers’ compensation claim. A workers’ compensation award does NOT automatically entitle the employee to an Industrial Disability Retirement.
Employees who are eligible to retire on a Service Retirement and have a disabling condition, may elect to apply for Service Retirement pending Disability or Industrial Disability Retirement. While the employee’s medical qualification for Disability Retirement is being determined, the employee could be receiving a Service Retirement allowance. If later the Disability Retirement is approved, the retirement status and benefits will be adjusted from Service to Disability retroactive to the effective Service Retirement date. Please note that if the Disability Retirement is denied, the employee will NOT have mandatory return to work rights.
The employee and employer will be notified when CalPERS makes a determination of disability. All parties have the right to appeal the approval/denial of the application for Disability/Industrial Disability Retirement by filing a written request with CalPERS within 30 days of the mailing of the determination letter. The appeal should set forth the factual basis and legal authorities for said appeal.
All hearings are heard by an independent Administrative Law Judge (“ALJ”) with the Department of General Services, Office of Administrative Hearing. The ALJ receives and reviews the evidence in the case, and writes a recommendation, called a “Proposed Decision”, to the CalPERS Board of Administration.
Though appeal hearings are “public hearings,” they are generally not attended by anyone except the actual parties involved. The party challenging the CalPERS decision will have the burden of proof and will proceed first. Evidence is presented (usually medical records) and witnesses are called (usually medical experts and the employee who filed the application). These hearings are treated very much like “trials”, and CalPERS will be represented by an attorney, so it is highly recommended (though NOT required) that the employee be represented by an attorney as well.
To determine whether you qualify for Disability or Industrial Disability retirement benefits, or if you have received a denial of benefits notice from CalPERS and notice of appeal, contact my office for a FREE confidential consultation to discuss your rights, your options, and the available remedies you might have. The time to apply for these benefits, or file an appeal can be very short, and it is important to make sure that you do not lose your rights.
California State Teachers’ Retirement System (CalSTRS)
Q: If a California public school teacher is unable to continue working due to a medical condition, what are their options?
A: California teachers who are injured on the job may be eligible for workers compensation or Disability Retirement claims through the California State Teachers’ Retirement System (CalSTRS). To apply for CalSTRS Disability Retirement benefits, a teacher must:
- Have 5 years or more of credited service.
- The last five years of credited service must have been performed in California.
- Four of the five years of credit must be for actual performance of creditable service
- At least one year of service credit must have been earned either
- After receiving a disability benefit
- Following a service retirement
- Following the most recent refund of your accumulated contributions
However, if a CalSTRS member is disabled due to an unlawful act of bodily injury while performing CalSTRS-covered employment, they may qualify for disability benefits with only one year of service credit.
To qualify for Disability Retirement benefits, the member’s impairment must be permanent or expected to last 12 or more continuous months beyond his or her last day of work. It must also prevent the member from performing their current job duties, their current duties with a reasonable modification, or job duties consisting of a comparable level of work.
CalSTRS members cannot collect Disability Retirement benefits for injuries that are a result of a willful self-inflicted injury.
The disability must be “substantiated by medical documentation”, and the disability determination will be based on criteria established in the California Education Code, not those used by other disability benefit providers such as Social Security or workers’ compensation. Disability benefits are not available for an impairment that existed before the teacher became a CalSTRS member unless the impairment has substantially worsened.
Under CalSTRS, there are two types of disability benefit coverage – Coverage A and Coverage B. If the teacher became a member of CalSTRS on or after October 16, 1992, he or she has Coverage B. If the teacher became a CalSTRS member before October 16, 1992, and did not elect Coverage B before April 1993, he or she has Coverage A.
In general, the basic disability benefit available under both types of coverage is 50 percent of the teacher’s final compensation. The maximum benefit he or she can receive, including benefits for eligible dependent children, is 90 percent of his or her final compensation.
Under Coverage A:
- The teacher must be under age 60 to receive disability benefits. When the teacher turns 60, his or her disability benefit will end unless he or she still have eligible dependent children, and he or she may apply for service retirement. The service retirement benefit may be less than his or her disability benefit.
- If the teacher is at least 45, but under age 60, with fewer than 10 years of service credit, the disability benefit will be 5 percent of his or her final compensation multiplied by his or her years of service credit, instead of 50 percent of the final compensation.
Under Coverage B:
- The teacher may apply for disability benefits at any age
- The disability benefits can continue for life, as long as he or she continue to qualify.
There are very strictly followed procedures and timelines to file for disability benefits, and failure to follow these could result in the application for benefits being denied. This is why an attorney experienced in handling CalSTRS Disability Retirement cases can be extremely helpful. They will know what medical documentation to submit and the strict timelines in which to filed them.
To determine whether you qualify for Disability Retirement benefits, or if you have received a denial of benefits notice from CalSTRS and notice of appeal, contact my office for a FREE confidential consultation to discuss your rights, your options, and the available remedies you might have. The time to apply for these benefits, or file an appeal can be very short, and it is important to make sure that you do not lose your rights.
Sacramento County Employees’ Retirement System (SCERS)
Q: If Sacramento County public employee is unable to continue working due to a medical condition, what are their options?
A: Sacramento County employees are generally members of the Sacramento County Employees’ Retirement System (SCERS). As such, if they become injured or ill, whether on the job or otherwise, they may be eligible for Disability Retirement through SCERS if the condition prevents him or her from performing the duties of his or her position. To make a claim for this benefit, one must file a Disability Retirement application with SCERS. One will need supporting documents from the physician(s) treating the condition(s) he or she claims are disabling.
Generally, members applying for Disability Retirement must spend significant time and effort, and likely some expense, to complete the process and obtain a determination on their application. Members who are also eligible to retire for service at the time they consider applying for Disability Retirement are encouraged to compare and evaluate the economic result of each benefit alternative.
There are two types of Disability Retirement benefits:
1. Service-Connected Disability Retirement applies when one has a permanent incapacitation from performing the duties of their position resulting from an injury or illness that arises out of and in the course of their employment and the employment substantially contributes to the incapacity. One does not have to be vested to apply for a Service-Connected Disability Retirement.
2. Nonservice-Connected Disability Retirement applies when one has a permanent incapacitation from performing the duties of the position resulting from an injury or illness that does NOT arise out of and in the course of the employment nor did the employment substantially contribute to the incapacity. One must be Vested (have five (5) or more years of full-time Service Credit with SCERS or in total when combined with the service under a Reciprocal System) to apply for a Nonservice Connected Disability Retirement.
To qualify for Disability Retirement, one must:
1. Be a SCERS member;
2. Have contributions on deposit with SCRES; and
3. Prove based on medical evidence that one is permanently incapacitated from performing the duties of the position.
One should file a Disability Retirement application as soon as one is reasonably certain that the medical condition permanently incapacitates one from performing the duties of the position and:
1. One has supporting medical evidence of the disability, and
2. One are still employed, or
3. Within four months after one has discontinued service, or
4. Any time after one has separated from employment if one has been continuously disabled since one discontinued service and SCERS’s ability to investigate the application has not been impaired because of an unreasonable delay in filing the application.
There are very strictly followed procedures and timelines to file for disability benefits, and failure to follow these could result in an application for benefits being denied. This is why an attorney experienced in handling SCRES Disability Retirement cases can be extremely helpful. They will know what medical documentation to submit and the strict timelines in which to filed them.
To determine whether you qualify for Disability or Industrial Disability retirement benefits, or if you have received a denial of benefits notice from SCERS and notice of appeal, contact my office for a FREE confidential consultation to discuss your rights, your options, and the available remedies you might have. The time to apply for these benefits, or file an appeal can be very short, and it is important to make sure that you do not lose your rights.