1 comment on “At Will Employment – What Does It Really Mean?”

At Will Employment – What Does It Really Mean?

At Will Employment

By Deborah H. Petito, Esq.

All employers—large and small—are governed by a myriad of state and Federal laws with complex legal requirements. Navigating the complicated and ever-changing maze of employment laws can be confusing, and employers may find themselves caught in an employee lawsuit if they aren’t careful to avoid making these common mistakes.

Many employers do not understand the true meaning of “at will” employment. At will employment is defined as the right of the employer or the employee to terminate the employee’s employment at their will for any reason.  In California, Labor Code §2922 provides that all employees are employed at will and specifically states, “An employment having no specified term, may be terminated at the will of either party on notice to the other.”  It seems pretty clear but employers often fail to take other laws into consideration that affect at will employment.

Employers have two basic misunderstandings about at will employment:

  1. They can terminate an employee’s employment at any time for any reason (given the definition this is a valid assumption); and
  2. They can do nothing to change the at will status of an employee.

First, employees always have the right to terminate their employment at will unless they have a contract which provides otherwise in which case they may be giving up benefits under the agreement. Employers cannot force employees to work – slavery was abolished long ago.  Employers on the other hand are restricted by both federal and state law. These laws include: discrimination under the California Fair Employment and Housing Act and Title VII, worker’s compensation, Americans with Disabilities Act, Family Medical Leave/California Family Rights Act, whistleblower laws, and other California and federal statutes that provide rights to employees. Employers cannot terminate employees for a discriminatory or retaliatory reason or because employees have exercised their rights or complained because they were not allowed to exercise their rights under these laws. Employers also cannot terminate an employee for complaining to an outside government agency about the employer’s practices. There are many nuances to each of these laws and employers need to be aware of them before they decide to take action to terminate an employee.

Second, while employees begin their employment as at will employees (unless there is a contract), employers can change the employee’s at will status by its words and actions. Employers may refer to the company as a family operation where everyone “grows old together,” or tell employees they have a “job for life.” These words can change the at will relationship and in the 1980s court decisions confirmed this fact. Also, similar statements in employee handbooks can change the at will relationship. While the owner or management team may be aware of this fact, they often forget to train their supervisors and managers. In California supervisors and managers are the eyes and ears of the employer and can create liability for the employer. Therefore, it is necessary for employers to recognize that fact and train their supervisors and managers not to make such statements.

In order to protect its interests, employers should:

  1. Review terminations of employees carefully and ask themselves:
  • Is the employee in a protected class?
  • Has the employee complained?
  • Did the employee file a workers’ compensation claim?

A careful review may reveal underlying issues. The best practice is to contact your employment attorney and discuss each termination to undercover any potential issues. Upper management also should not blindly accept recommendations from lower management without asking questions. This review, even if it uncovers some potential issues, does not mean that the termination does not occur but it allows consideration of potential claims and may lead to offering severance to avoid future litigation.

  1. Make sure that employee handbooks contain at will provisions which specifically state that the at will relationship cannot be changed except in writing by the owner, president or other high level officer of the employer. Take out progressive discipline from your handbook. You should use it in making decisions but do not commit to using it. There will always be a situation where warnings will not be given before termination and plaintiff’s attorneys will use that provision to show you did not follow your own policies.
  2. Evaluate and terminate employees as soon as performance, attendance or other issues arise. Many employers fail to use the orientation period to evaluate employees. The message is evaluate early and do not keep a problem employee. They rarely get better.

Hope you found the above discussion helpful. In my upcoming posts, I plan to share with the readers practical knowledge and tips on a variety of labor and employment law topics applicable to employers.  Stay tuned for another conversation on ClarkTalk!!

Thank you for joining us on ClarkTalk! We look forward to seeing you again on this forum. Please note that the views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog.  If you wish to consult with the author of this post or another attorney at Clark & Trevithick, please contact Deborah Petito by email at dpetito@ClarkTrev.com or telephonically by calling the author at (213)629-5700.

0 comments on “San Jose “Opportunity to Work” Ordinance”

San Jose “Opportunity to Work” Ordinance

San Jose, California

By Deborah H. Petito, Esq.

San Jose is the next city to pass an ordinance that regulates employers. In what appears to be partially motivated to prohibit employers from hiring part-time employees to avoid providing health insurance under the Affordable Care Act, San Jose has passed the “Opportunity to Work” ordinance. The San Jose ordinance prohibits employers from hiring a temporary employee or employees through staffing agencies before offering additional hours to existing employees who, in the employer’s good faith and reasonable judgment, have the skills and experience to perform the necessary work. This ordinance also requires that the employer use a “transparent and nondiscriminatory” process to distribute these extra hours among existing employees. Employers do not have to provide additional hours to existing employees if it would require payment of overtime.

Employers will be required to post a notice prepared by the City and employers will be required to keep records for any new hire documenting that current employees were offered additional hours. Employers will also be required to maintain records, such as employee work schedules, and any other records the City requires employers to retain.

There are no fines, fees or civil penalties for the first violation. The Ordinance also provides a hardship exemption and small business exemption.

The Ordinance is effective April 6, 2017. As local government becomes more active in the employment area, employers need to keep abreast of local government actions.


Thank you for joining us on CIarkTalk! We look forward to seeing you again on this forum.  Please note that views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog.  If you have any questions about San Jose’s “Opportunity to Work” Ordinance, please feel free to email Deborah H. Petito at DPetito@ClarkTrev.com or Leonard Brazil at LBrazil@ClarkTrev.com, or contact our office at (213) 629-5700.

0 comments on “Layoffs: Intended and Unintended Consequences”

Layoffs: Intended and Unintended Consequences

Employee Layoffs

By Deborah H. Petito, Esq. and Leonard Brazil, Esq.

Layoffs based on business necessity are permissible, but problems arise when an employer does not properly implement a layoff. It is equally important to understand how layoffs may affect existing or subsequent claims raised by other employees.

 A. Follow A Two Step Process When Implementing A Layoff

  1. Demonstrate Business Necessity

Unfortunately (in a business sense), these days employers may find it far too easy to establish that a layoff is based on business necessity. The need to reorganize or to reduce the number of employees due to a downturn in business should be well substantiated by internal company documentation.  This is also true when a position is eliminated.  Employers should document why the particular position was chosen for elimination prior to the actual layoff.

  1. Layoff Selection Process

While there may exist a clear and compelling business necessity to implement a reduction in force, the employer may face liability if it does not carefully analyze which employees are to be included in a layoff. Courts have found that an employer was justified in implementing a reduction in force, but concluded that the selection of the actual employee(s) laid off was motivated by an illegal reason such as the person’s age. The employer should do the following to minimize the likelihood of such a claim:

a. Identify the list of employees being considered for a layoff (“Target Employees”) and document the business reasons why those particular individuals have been identified, such as lesser seniority, performance, relative skills of the employees and other reasonable business criteria.

b. If there are other employees in the same or similar positions who are not being laid off, the employer should document why the Target Employees are being considered for layoff while the others have not been selected.

c. If only some of the Target Employees are ultimately selected to be laid off, there should be documentation which expresses the company’s reasoning as to the selection of those actually laid off.

d. When the employer has identified those to lay off, an evaluation should be made as to whether the layoff affects a disproportionate number of employees in a “protected classification,” such as age, race, gender or other classifications which may raise the issue of discrimination, harassment or retaliation. For example, if 8 of the 10 employees laid off are over age 40, the employer must be able to clearly articulate and establish the legitimate business reasons why those particular employees were selected.  If there is a concern of being able to establish such business justification, the employer should reconsider those to be laid off.

Senior managers and executives often rely on lower level managers to select the individuals who will be laid off. Senior management should make sure they review that process and the individuals selected to avoid claims of discrimination, harassment or retaliation.  Ultimately, the decision rests with senior management and trusting lower level management, without questioning who is chosen for layoff and why, could create liability and reflect poorly on senior management.

Also, keep in mind that if you are implementing a group layoff and are presenting the employees with a release of claims in return for a severance package, the release agreement proposed to employees over age 40 must include certain information about those being laid off and those employees who will not be impacted by the layoff. Additionally, if the layoff is part of a plant closing or mass layoff, the employer may be subject to the state and/or federal Worker Adjustment Retraining Notification Act which requires advance notice to employees of such a layoff.

B. How A Layoff Or Termination May Affect Other Employee Claims

The layoff or termination of an employee may have significant and unintended negative consequences to existing or future claims filed by other employees. An employer should consider the following when deciding to terminate or lay off an employee:

a. The departing employee may be an important witness in potential or existing litigation.  If so, it is critical for the company to apprise counsel of potential terminations or layoffs when such action is first contemplated.  Such employees may be hard to later track down, their memories may fade or they may become hostile to the company.

b. If a departing employee has relevant information regarding litigation, consider obtaining a declaration under penalty of perjury to memorialize the employee’s knowledge before it becomes faded or the employee becomes hostile to the company.  If the departing employee is being offered a severance agreement, consideration should be given to tying any installment payments to the departed employee’s continued cooperation in any litigation or potential litigation.

c. Implement safeguards to ensure that the departing employee’s e-mails, to the extent potentially relevant in litigation or potential litigation, are not deleted. The company should issue an internal records hold notice to identify files and electronic documents which are not to be deleted. Such a records hold notice should be periodically reissued within the company to account for new hires while such litigation is pending or threatened.

d. Obtain from the departing employee information as to where important files or e-mails may be located. Advise the departing employee to not delete any e-mails, discard any documents or remove anything from the company’s premises.

C. Conclusion

While employers have valid reasons for layoffs, they often fail to review the list of laid off employees in detail and are unaware that those chosen all fall within a selected category or that individuals present specific issues that may lead to litigation.   Also, employers often fail to consider the impact that an employee’s departure may have on current litigation.  Looking at the details before implementing a layoff and documenting why specific employees have been chosen, can help employers avoid litigation.


Thank you for joining us on CIarkTalk! We look forward to seeing you again on this forum.  Please note that views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog.  If you have any questions about employee layoffs or terminations, please feel free to email Deborah H. Petito at DPetito@ClarkTrev.com or Leonard Brazil at LBrazil@ClarkTrev.com, or contact our office at (213) 629-5700.

Clark & Trevithick is a full service Los Angeles-based law firm that has been representing clients throughout California for 40 years. The firm’s attorneys have broad expertise which permits Clark & Trevithick to provide its clients with the comprehensive legal advice necessary to operate in today’s business environment. For more information, visit www.clarktrev.com

0 comments on “New I-9 Form Required”

New I-9 Form Required

Signing Contract

By Deborah Petito, Esq.

U.S. Citizenship & Immigration Services (“USCIS”) has revised and issued a new I-9 Form effective November 14, 2016. Employers are required to have every new employee fill out Section 1 of the I-9 Form on their first day of hire and Section 2 of the I-9 Form within three (3) days of their hire.  Employers must retain I-9 Forms while the employee is employed and for at least one year after the employee leaves the employer.  Applicants should not be requested to fill out an I-9 Form until they have been offered employment.  Employers can be penalized if they fail to have employees fill out I-9 Forms and if they fail to retain the completed I-9 Forms.  Employers can also be penalized for failing to properly fill out the I-9 Form.  The form can be filled out in hard copy or on the computer and printed.

Employers are prohibited from discriminating against employees because of their immigration status. Employers should ensure that all employees are required to fill out an I-9 Form and should carefully review each form to ensure it is properly and fully completed.  Employers can ask to see and copy documents which support an employee’s right to work in the United States.  The best practice is to copy those documents and maintain them with the I-9 Form.

Employers are subject to audit and should keep I-9 Forms in a file separate from employee personnel files. The file containing the I-9 Forms can then be handed to the government agent for review and there is no reason to review the employees’ personnel files.

Employers are required to begin using the new I-9 Form on January 22, 2017. Employers should make sure they review the instructions and other documents available from USCIS so that they understand their obligations: www.uscis.gov/i-9.


Thank you for joining us on CIarkTalk! We look forward to seeing you again on this forum.  Please note that views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog.  If you have any questions about the new I-9 form, please feel free to contact our Labor & Employment attorneys Deborah Petito by email at dpetito@clartktrev.com or Leonard Brazil at lbrazil@clarktrev.com or telephonically by calling the author at (213) 341-1359.

0 comments on “Employees Can Claim Disability Discrimination Even If They Do Not Have A Disability”

Employees Can Claim Disability Discrimination Even If They Do Not Have A Disability

By Deborah H. Petito, Esq.

One of the most difficult areas for employers is how to handle employee requests for reasonable accommodations based on disability. Employers are required to accommodate an employee who is disabled.  There is a recent California case which requires employers to accommodate employees who associate with disabled individuals even if the employee is not disabled.

Prior to this recent California case, employers could focus on the employee’s disability and whether or not the employee could be accommodated. Now employers must be aware that an employee can also request a reasonable accommodation to care for a third party who is disabled with whom the employee is associated.  It is unclear whether that disabled person needs to be a family member as required by the family and medical leave laws.  The first California appellate case on this issue, Luis Castro-Ramirez v. Dependable Highway Express, was decided in 2016.  The employee administered dialysis to his son.  The employee’s original schedule allowed him to be home at night to do so.  However, a new supervisor changed his schedule and terminated him when he refused to work the new schedule.  The Court of Appeal held that the employee could bring claims for disability discrimination and retaliation even though he was not disabled.  The Court of Appeal specifically held that “FEHA creates an associational disability discrimination claim” because “’physical disability’ . . . include[s] ‘. . . that the person is associated with a person who has, or is perceived to have, any of those characteristics.’”

There are no hard and fast rules about reasonable accommodations or time limits on the length of a disability leaves based upon an employee’s serious health condition or the need of an employee to care for a third party with whom the employee is associated. The length of a leave depends on a number of circumstances, including the level of the employee’s job (how hard it is to have another employee perform their job duties), the size of the employer and whether or not the employer can show that there is an undue hardship in allowing an extended leave.  Other reasonable accommodations also depend on the specific request and its effect on the employer.  Employers who do not understand the law either deny the reasonable accommodation,  terminate the leave too early and open themselves up to a disability discrimination lawsuit or let employees have unlimited leaves of absence which causes operational issues, particularly when the employee wants to return to work.

The Castro-Ramirez case is a classic “bad facts make bad law” case. However, the effect is that employers are faced with whether to grant a leave as an accommodation to those employees who request leaves not only for their own disability but also to take care of a disabled third party, who is not necessarily related to the employee, who has or is perceived to be disabled.  This is a significant broadening of the protections under the Fair Employment and Housing Act.  It remains to be seen how broadly associational disability discrimination will be integrated by future court decisions, but for now employers must entertain a leave of absence requested by an employee to care for another disabled person.

To avoid claims of disability discrimination, employers should:

  1. Train supervisors and managers regarding what constitutes a disability and that the disabled person does not have to be the employee.  Supervisors are often the first person to hear that an employee needs or would like an accommodation.
  2. Make sure they understand how to engage in the interactive process and how to evaluate accommodations to determine if they are “reasonable.”

The best advice in this area for employers is to consult their employment counsel before taking action because the employment laws overlap and have different requirements. Some employers do not want to pay the fees for a legal consultation, but a small investment now may avoid a huge legal headache.


Thank you for joining us on CIarkTalk! We look forward to seeing you again on this forum.  Please note that views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog.  If you have any questions about disability discrimination, including associational disability discrimination, the interactive process or reasonable accommodations, please feel free to contact Deborah Petito by email at dpetito@clartktrev.com or Leonard Brazil at lbrazil@clarktrev.com or telephonically by calling the author at (213) 341-1359.

0 comments on “New Minimum Hourly Rates for Exempt Computer Software and Licensed Physicians and Surgeons”

New Minimum Hourly Rates for Exempt Computer Software and Licensed Physicians and Surgeons

By Deborah H. Petito

The minimum hourly rates for computer software professionals and licensed physicians and surgeons was announced by the Department of Industrial Relations (“DIR”). Effective January 1, 2017, the rates are as follows:

Physicians – $77.23 per hour. Previously, the hourly rate was $76.24 (the DIR does not set monthly or annual minimums for physicians and surgeons.

Computer Software Professionals – $42.39 per hour, $7359.88 per month and $88,318.55 per year. Previously, the rates were $41.85 per hour, $7,265.43 per month and $87,185.14 per year. A computer software professional must meet the following criteria in order to be exempt under the professional exemption:

  • The employee is primarily engaged in work that is intellectual or creative and requires the exercise of discretion and independent judgment.
  • The employee is primarily engaged in duties that consist of one or more of the following:
  • The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications.
  • The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to, user or system design specifications.
  • The documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems.
  • The employee is highly skilled and is proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. A job title shall not be determinative of the applicability of the exemption.

Also, remember that the Department of Labor’s Final Rule on exempt employees is effective December 1, 2016 and requires that all exempt employees be paid at least $46,467 annually in order to be exempt. This is higher than current California law (except in some cities where the minimum wage is higher. You can read more on this topic in my blog article posted in May. Will Your Exempt Employee Still Be Exempt?


Thank you for joining us on ClarkTalk!  We look forward to seeing you again on this forum.  Please note that the views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog.  You should certainly consult legal counsel of your choice if you need assistance in determining whether or not an employee is exempt or whether they are being paid appropriately.  If you wish to consult with the author of this post or another attorney at Clark & Trevithick, please contact Debbie Petito dpetito@clarktrev.com or Leonard Brazil lbrazil@clarktrev.com by email at or telephonically by calling the author at (213) 629-5700.

1 comment on “Employers Cannot Deprive Employees of Access to California Courts or Law”

Employers Cannot Deprive Employees of Access to California Courts or Law

By Deborah H. Petito

A new statute has been added to the Labor Code (§925) which prohibits employers from requiring employees to agree to a provision requiring them to bring claims arising, either in court or before an arbitrator, in a jurisdiction other than California. The new statute also prohibits an employer from requiring employees to agree to a provision which deprives the employee of the substantive protections of California law in any lawsuit or arbitration.  This means that employers cannot require employees to sign employment agreements, including arbitration agreements, confidentiality agreements, etc., which state that the matter will be adjudicated in another state or that the law of another state will govern any litigation or arbitration dispute.

This new statute applies to an employee who “primarily resides and works in California.” While the statute does not differentiate between the level of the employee, it does exclude contracts when the employee is individually represented by legal counsel in negotiating the terms of the contract.  This will generally mean a higher level employee.  While the law does not apply to contracts where the employee is individually represented, there are no guarantees that a California court will uphold a legal challenge to such contracts so they should be cautiously approached.

There are teeth in the new statute which provides that any contract requiring the employee to adjudicate his or her claims in another state or apply another state’s laws is voidable by the employee and provides that a court may award attorney’s fees to an employee who enforces his or her rights. The dreaded attorney’s fees language – a motivation for plaintiff’s attorneys to file lawsuits.

Presumably, if another state has the same substantive law in a given area, the employer could designate that other law would apply but in the employment area, chances are that California’s laws are tougher.  This is an area where legal counsel should be consulted.

This new statute is effective January 1, 2017 and applies to any contract entered into, modified or extended after that date.

Thank you for joining us on ClarkTalk!  We look forward to seeing you again on this forum.  Please note that the views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog.   If you wish to consult with the author of this post or another attorney at Clark & Trevithick, please contact Deborah H. Petito by email at dpetito@clarktrev.com or telephonically by calling the author at (213) 629-5700.

 

0 comments on “San Diego Amends Its Paid Sick Leave Ordinance”

San Diego Amends Its Paid Sick Leave Ordinance

By Deborah H. Petito

Effective September 2, 2016, Employers Who Have Employees Working in San Diego Can Front Load and Cap Paid Sick Leave

There are now six cities with paid sick leave laws. San Diego’s paid sick leave law was effective on July 11, 2016, however, the law as adopted by the voters in June left a lot of unanswered questions.  On August 3, 2016, the City Council approved an implementing ordinance that answers most of those questions.  The main question that employers had was whether or not accrued paid sick leave could be capped.  Under the original ordinance, there was no cap which meant that employees could accrue unlimited paid sick leave.  The implementing ordinance allows a cap of not less than 80 hours.  This means that once an employee subject to an 80 hour cap accrues 80 hours of paid sick leave, the employee cannot accrue any additional paid sick leave until the employee uses some paid sick leave.

The other question answered was whether employers could front load the 40 hours of paid sick leave required by the original ordinance. The answer is yes.  If front loaded, employers do not have to impose a cap because they may prohibit carryover of sick leave.  However, the 40 hours must be front loaded regardless of the employee’s status as full-time, part-time or temporary.  Employers who use the accrual method (not less than 1 hour for every 30 hours worked) must be permitted to carryover unused sick leave.

The original ordinance allows employees to cap sick leave usage at 40 hours of paid sick leave each year. That was left unchanged in the implementing ordinance.

Differences With Other California City Paid Sick Leave Laws

The San Diego 80 hour cap is higher than any other city in California. Four of the cities have a 72 hour cap for large employers.  Los Angeles and San Diego do not differentiate between large and small employers.  Some of the provisions are consistent, such as an employee is only entitled to paid sick leave if they work a minimum of 2 hours in the city per week and employees cannot use their paid sick leave until they have been employed for 90 days.  The challenge is for an employer who has employees working in more than one city with a paid sick leave law.  Such employers must decide whether to have separate policies or one policy that gives all employees the greatest benefits.  Each of the cities have separate posting requirements and they all have a required poster.  If employers have employees working remotely, how do they comply with the posting requirements?

Enforcement Provisions Added

The San Diego implementing ordinance also provides some teeth to ensure enforcement and compliance. The implementing ordinance establishes an Enforcement Office in the City which will eventually issue regulations.  However, employees are not required to complain to the City’s Enforcement Office and are allowed to sue their employers and to obtain attorney’s fees if they are successful.  The statute of limitations under the implementing ordinance is 2 years.

Under the implementing ordinance, any adverse action against an employee within 90 calendar days of the employee exercising their rights provided under the ordinance creates a rebuttable presumption that the employer retaliated. This puts the burden on the employer to prove that their actions were not retaliatory.

There are also penalties for employers who violate the law. Some of these penalties include:

  1. Liquidated damages up to $1,000 for a violation not resulting in termination;
  2. Liquidated damages up to $3,000 for a violation resulting in termination;
  3. Civil penalties of not more than $1,000 for each day that the employer fails to provide paid sick leave; and
  4. Penalties for failing to provide notice and posting.

If an employer ceases business operations, sells its business or transfers its interest any successor becomes liable for unpaid damages and penalties.

Steps for Employers

  1. Determine whether you have employees in any of the six California cities with paid sick leave laws.
  2. Make sure your paid sick leave policy complies with the paid sick leave laws that apply to you and make necessary revisions.
  3. Notify employees and post the appropriate notices.
  4. Monitor local ordinances.
  5. Monitor local governing boards and entities to ensure you are aware of new paid sick leave laws or changes to existing paid sick leave laws.

Thank you for joining us on CIarkTalk! We look forward to seeing you again on this forum.  Please note that views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog.  If you have any questions about the San Diego implementing ordinance or sick leave in California, please feel free to contact Deborah Petito by email at dpetito@clartktrev.com or Leonard Brazil at lbrazil@clarktrev.com or telephonically by calling the author at (213) 341-1359.

0 comments on “Employers Are Required To Post Two New Federal Posters Effective August 1, 2016”

Employers Are Required To Post Two New Federal Posters Effective August 1, 2016

By Deborah H. Petito

Employers are required to post two new federal posters effective August 1, 2016. One is the revised minimum wage poster and the other relates to polygraph tests.  These posters can be accessed by clicking here.

Thank you for joining us on CIarkTalk!  We look forward to seeing you again on this forum.  Please note that views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog.  If you have any questions about minimum wage compliance in California, please feel free to contact Deborah Petito at dpetito@clartktrev.com or Leonard Brazil at lbrazil@clarktrev.com by email or telephonically by calling the author at (213)629-5700.

 

0 comments on “Complying with California Sick Leave Laws – Can it get any harder?”

Complying with California Sick Leave Laws – Can it get any harder?

By Deborah H. Petito

On July 1, 2015, California’s new paid sick leave law became effective.  It applies to almost all employers and requires that employers provide at least three (3) days OR twenty-four (24) hours of paid sick leave.  In August of 2015, the Division of Labor Standards Enforcement (the California Labor Commissioner) issued an opinion stating that employers must offer 24 hours or 3 days of paid sick leave, whichever is greater, meaning an employee who normally works 10 hours in a day would be entitled to 30 hours of paid sick leave at a minimum.  Employers who implemented a policy frontloading twenty-four hours are now at risk of not being in compliance.

The trend to localize minimum wages has extended to paid sick leave benefits.  Six California cities – San Francisco, Oakland, Emeryville, Los Angeles, San Diego and Santa Monica – have implemented their own sick leave laws and they provide greater benefits than California law.  This article does not discuss all of the differences and employers are encouraged to contact their employment counsel to make sure that, in their specific circumstances, their policy(ies) are in compliance.

This fragmentation of paid sick leave rules and regulations  at the local level has made compliance more difficult for employers, particularly those with employees who work in multiple cities.  In Oakland, employers were required to comply by March 2, 2015.  In Emeryville the effective date was July 2, 2015; in Los Angeles and San Diego the effective dates were in July of 2016; and San Francisco and Santa Monica are effective in 2017.  It does not matter that the employer does not have a facility in the city.  The standard is whether the employer has employees who work in the city.  With the exception of San Francisco, employers must comply with the local paid sick leave laws if any employees work in those cities at least two hours in a week.  Employees who drive and deliver product, make sales calls or even those who work from home and live in one of these cities must receive the required paid sick leave benefits.

This creates several issues for employers beyond making sure that employees working in those cities are receiving the required sick leave benefits because the amounts of sick leave required and the rules surrounding how the employer provides the sick leave benefits are different.  It may be possible to give a certain class of employees, e.g. drivers, greater paid sick leave benefits because they work in these cities, but in some cases defining the group of employees who might be entitled to greater benefits may be difficult  and employers face a decision of having various policies or giving all employees greater paid sick leave benefits to avoid an administrative nightmare.

The major difference between the state and local laws is how an employer provides paid sick leave benefits.  Under California law, an employer may use the frontload method by providing all of the sick leave at the beginning of each year or use the accrual method, allowing employees to accrue sick leave at the rate of not less than one hour for every thirty hours worked.  If the employer uses the accrual method, they can cap sick leave at six day or 48 hours each year, which means an employee does not earn any additional sick leave until he or she has taken some sick leave.  Not all cities allow frontloading.  Each of the cities are consistent in allowing employers to use the accrual method and provide one hour of sick leave for each thirty hours that the employee works.  Two of the cities – San Diego and Oakland, do not provide a frontload method.  Logically, one would think that if an employer frontloaded the required sick leave, an employer would be in compliance, however, the Oakland City Attorney has opined that use of the frontload method “may risk” a violation of Oakland’s law.  Most employers chose the frontload method for administrative efficiency.  However, those employers will have to revise their policies if they have employees in cities that do not allow employers to use that frontload method.

There are also several other major differences between the requirements of these cities.  The use increments vary.  California law states an employer cannot require an employee to use sick leave in increments larger than 2 hours and two of the cities, while Oakland and San Francisco have reduced the increment to one hour.  Sick leave under California law and these local laws allows sick leave to be used for family members but the definition of family member differs and Oakland allows employees to use sick leave to care for a service dog.  Certain of the cities have different sick leave caps depending on the employer’s size.  The cities also each have their own posters/bulletins that must be posted.  While the California law does not have a provision allowing an employee to sue their employer for violation of the sick leave law, each of the cities allows an employee to do so and certain cities have penalties for violations.

As varying regulations are imposed by more and more local governmental entities, employers are severely challenged to stay abreast of the new laws, how they differ from state law and how to comply with them.

Thank you for joining us on CIarkTalk!  We look forward to seeing you again on this forum.  Please note that views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog.  If you have any questions about the new Los Angeles City Ordinance or sick leave in California, please feel free to contact Deborah Petito at dpetito@clartktrev.com or Leonard Brazil at lbrazil@clarktrev.com by email at or telephonically by calling the author at (213)629-5700.