By Leonard Brazil

Employment lawsuits commonly referred to as PAGA (“Private Attorney General Act”) claims have gained a lot of notoriety and media coverage.  PAGA allows employees to sue not only on their own behalf, but also as a representative of other current and former employees who have raised no complaint.  PAGA claims are similar to a class action, but are much easier to assert against an employer — turning a claim by one employee into a lawsuit on behalf of many, thereby greatly increasing the financial exposure of the company.

On September 26, 2017, the Court of Appeal issued a ruling on a PAGA claim which will further increase the filing of such claims against employers.  (Lopez v. Friant &Associates LLC)  An employee filed a PAGA claim alleging his employer issued wage statements (commonly referred to as pay stubs) which failed to include the last four digits of his social security number or employee ID number as required by California Labor Code Section 226.  This statute specifically states a violation occurs only if the omission of required information on a wage statement (i) was a “knowing and intentional failure by an employer” and (ii) caused injury to the employee.  The statute also expressly states that “a knowing and intentional failure” does not include an isolated and unintentional payroll error due to a clerical error or inadvertent mistake.

The trial court in Lopez rejected the PAGA claim alleging a violation of Section 226 because the employee had no evidence of a knowing and intentional failure by the employer to include the social security numbers and there was no evidence of injury.  However, the Court of Appeal reversed the trial court’s ruling.  The appellate court concluded that while a suit by an individual for a wage statement violation requires proof of an employer’s willful failure to include the social security numbers, in a PAGA suit (a representative claim on behalf of other employees) an employer can be liable even if the omission of the required wage statement information was purely accidental.  The Court went further and held that while an individual claiming a violation of Labor Code Section 226 must suffer an injury, recovery under PAGA is allowed even if the employee cannot demonstrate an injury.  As a result, the representative lawsuit which included hundreds of other employees was allowed to proceed against the employer.

What Should You Do?

A PAGA claim based on Labor Code Section 226 can expose an employer to significant financial risk, but it is easy to avoid.  Be sure your wage statements include all of the following information required by Labor Code Section 226:  (1) gross wages earned, (2) total hours worked by the employee (unless the employee is exempt—not entitled to overtime pay), (3) if the employee is paid on a piece rate basis, the number of piece rate units earned and any applicable piece rate, (4) all deductions, (5) net wages earned, (6) the inclusive dates of the period for which the employee is paid, (7) the name of the employee and only the last four digits of the social security number or employee identification number, (8) the name and address of the legal entity that is the employer (additional requirements exist for a farm labor contractor), and (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee (there are additional requirements for temporary services employers).

Also, before employees file a PAGA claim, they must send a letter to the employer and the California Labor and Workforce Development Agency specifying the alleged facts giving rise to a PAGA claim.  Immediately provide a copy of the letter to your employment attorney because the letter provides an opportunity to take corrective action if there has been a Labor Code violation.

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 do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interest relating to the subject matter covered by the blog. If you have any questions about PAGA claims, or about other labor and employment law issues, please feel free to email Leonard Brazil at or to call him at 213.629.5700.

Documenting Employee Problems – Who Has The Time!

Documenting Employee Problems

By Leonard Brazil, Esq.

In this ten-part series, Debbie Petito and I plan to share with you, based on our experiences, the top ten most common mistakes employers make that can lead to potential employee lawsuits. In Part One of this series, Debbie shared with you common misconceptions employers have about “at will” employment.

The frustrated employer calls its employment lawyer complaining about and detailing the continued poor performance of an employee and the countless conversations the supervisor has had with the employee which results in no meaningful improvement. The employer concludes by saying, “Surely I can terminate him.”  The attorney requests a copy of the company’s documentation of the history of poor performance.  The request is first met by silence and then the exasperated reply that the company had more pressing matters to address than spending time documenting a personnel file with write-ups.

This is an all too familiar conversation employment lawyers have with clients. Yes, while documenting poor performance or behavior of an employee is time consuming, it is essential.  The failure to document employee problems is often the achilles heel of the employer’s defense against a wrongful termination claim.  It allows an employee to deny being previously disciplined for poor performance, leaving the employer in the uncomfortable position of insisting employee’s poor performance is not fabricated and having to explain the failure to document problems serious enough to justify termination.

Documenting the Problem:  Poor performance, excessive absences or tardiness, insubordination, poor interpersonal skills with coworkers, or other unacceptable employee conduct should be documented in the personnel file.  Such documentation typically occurs in one of two ways–either a written warning given to the employee or a verbal warning followed by a memo or note placed in the employee’s personnel file confirming the details of the verbal warning.  Serious offenses should always be documented by a written warning to the employee.  The employee should be requested to sign the warning notice whereby the employee acknowledges receiving the notice.  If the employee refuses to sign an acknowledgement of receiving the notice, the supervisor should note such refusal on the notice, initial and date it.

Describe Employee Problems Factually:  Documentation of poor performance or employee conduct should be stated in objective terms rather than in a conclusory fashion.  For example, if the employee is working too slowly, describe it factually ( e.g., the employee produces X number of units per hour while the average production of others is Y units per hour).  A warning notice that the employee “works too slow,” “has a bad attitude,” or is “insubordinate” fails to state what the employee actually did or failed to do.  Stick to the observable facts.  Do not speculate as to the reason why the employee is not performing or behaving well.  Stating a belief that the employee’s recent poor performance may be due to some physical problem or that erratic behavior might be due to some emotional instability exposes the employer to a claim that the termination was a result of disability discrimination.

Documenting Complaints of Discrimination, Harassment or Retaliation: Any employee complaint of discrimination, harassment or retaliation must be carefully documented.  An employer is legally obligated to conduct a diligent and good faith investigation into any such complaint.  Inadequate documentation of a harassment complaint not only leaves the company unable to demonstrate the investigation was done diligently and in good faith, it also prevents it from establishing either there was no harassment or that harassment was discovered and the company took effective remedial action in response.  Each step of the investigation and resulting information obtained should be dated and well documented.  Documentation of the investigation should include the identity of the person reporting the incident, the date it was reported, details of the improper conduct, the identity of witnesses, information they provided, dates it was provided, conclusions, if any, reached based on the investigation and any remedial action taken by the company.

In a fast paced work environment, taking time to document employee problems may appear to be low on a company’s priority list. However, the time spent documenting such issues is inconsequential compared to the time and money required to defend a poorly documented wrongful termination claim, not to mention the increased risk of legal liability due to the inadequacy of evidence to defend.

Hope you found the above discussion helpful. In the upcoming posts, Debbie and I plan to share with you additional common mistakes employers make that can lead to litigation. 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 Leonard Brazil by email at or telephonically by calling the author at (213) 629-5700.

2017 Employment Law Update

Employment and Labor Law

By Leonard Brazil, Esq.

Court Decision

When Is a Rest Break Not a Rest Break?

In December 2016, the California Supreme Court published an opinion (Augustus v. ABM Security Services, Inc.) which exposes many employers to an unknowing violation of the rest break law.  Security guards filed a class-action against their employer alleging rest break violations.  The guards were required to keep their pagers and radio phones on during their rest breaks and to respond when the need arose even if they were on their rest break.

The Supreme Court concluded that “[d]uring rest breaks, employers must relieve their non-exempt employees of all duties and relinquish any control over how employees spend their break time.” The Court reasoned that because the guards were on call to respond, if needed, the employer had not relinquished control over the guards during their rest break.  As a result, the Court ruled that the guards’ rest break rights were violated and reinstated a class action judgment of $90 million.  Significantly, no evidence was presented that any of the guards ever had their rest break interrupted by having to respond to a page or call.


A. Minimum Wage.  California’s minimum wage increased to $10.50 on January 1, 2017 for employers with 26 or more employees.  Employers with less than 26 employees will be increased to $10.50 on January 1, 2018.  Employers also need to be mindful of city ordinances regulating the pay of employees in specific cities, such as Los Angeles, Santa Monica, San Francisco and San Jose which have established separate minimum wage requirements. Other cities are likely to do the same thereby increasing the burden on employers to keep track of local government wage and hour decisions.

The minimum wage in California will increase to $11 on January 1, 2018 for employers with 26 or more employees and a $1/year thereafter until the minimum wage increases to $15 on January 1, 2022. The increases for employers with less than 26 employees will follow one year after minimum wage increases are imposed on employers with more than 25 employees.  For example, on January 1, 2019, the minimum wage for employers with less than 26 employees will be $12.

B. Marijuana Legalized. California legalized marijuana in November of 2016. Employers are not affected by the new law.  Employees cannot smoke marijuana at work or come to work under the influence even if they have been prescribed marijuana for medical purposes.  Employers can continue to test employees for drug use when they have “reasonable suspicion.”

C. Restrictions on Employment Agreements.  Out of state employers often times have California employees agree to what is referred to as a choice of laws and venue provision––meaning employee claims must be (i) determined under the laws of another state and (ii) filed and litigated outside of California.  Labor Code §925 is a new statute which prohibits employers from including such a provision in an agreement with an employee.

  1. This new statute applies to an employee who “primarily resides and works in California.”  However, the new law allows a choice of law and venue provision in an agreement if the employee is individually represented by an attorney in negotiating the contract.
  2. Employees can collect attorney’s fees if they enforce their rights under this statute which provides a motivation for plaintiff’s attorneys to file lawsuits.

D. Sick Leave

  1. There are a number of local jurisdictions which have passed their own sick leave laws.  Currently, these include San Diego, Los Angeles, Santa Monica, San Francisco, Oakland and Emeryville.  These sick leave laws provide greater benefits that the California sick leave law and generally apply if an employee works two hours per week or more in that City even if the employer is not located there.  These laws differ in who is considered a family member, whether sick leave can be accrued or front loaded, as well as in other areas.

Accordingly, employers need to maintain an awareness of changes in sick leave laws in cities where they have facilities or have employees working.

E. Gender Wage Equality (Labor Code 1197.5)

This law was revised and effective January 1, 2016. The law prohibits employers from paying any employee less than an employee of the opposite sex for “substantially similar work, when viewed as a composite of skill, effort and responsibility.”

Additionally, the amendment prohibits employers from prohibiting an employee from disclosing the employee’s own wages, discussing the wages of others, inquiring about another employee’s wages, or aiding or encouraging any other employee to exercise his or her rights under these provisions.

As of January 1, 2017, the law has been expanded to also prohibit paying an employee less based on that person’s race or ethnicity. It also prohibits an employer from justifying an employee’s salary disparity based on that person’s prior salary.

F. Amendment to Labor Code Section 432.7 – Criminal History of Applicants – Also Known as “Ban the Box.”

The amendment prohibits employers from asking an applicant for employment to disclose, through any written form or verbally, certain information concerning arrests without a conviction, participation in pretrial or post trial diversion programs, or to use such information as a factor in determining any condition of employment, including hiring.

Excluded from the definition of conviction is a judicial adjudication entered by a juvenile court or any other court order or action taken against a person who is under the process and jurisdiction of the juvenile court.  There are also carve outs for health care facilities as defined by Health and Safety Code Section 1250 (dealing with the health of humans).

The City of Los Angeles passed an Ordinance, which is effective January 22, 2017, applies to all employers with 10 or more employees who are located in or doing business with the City of Los Angeles and provides:

  1. Covered employers are prohibited from asking any applicant about their criminal history or requiring disclosure of any criminal history.
  2. After a conditional offer has been made (defined as an offer of employment conditioned on the applicant’s criminal history), the employer can ask the employee about their criminal background, but must then perform a written assessment that links aspects of the applicant’s criminal history with the job duties for the position sought.
  3. If employers decide to deny the applicant the position, they must go through the “Fair Chance Process” which requires written notification to the applicant and gives the applicant five business days to provide information or documentation. Then the employer must perform a written reassessment before taking the adverse action of not hiring the applicant.
  4. There are carve outs for specific jobs, such as police officers or jobs that require use of a gun, or positions for which the employer is prohibited from hiring an individual convicted of a crime, etc.

G. Smoking in the Workplace (AB 7; Labor Code Section 6404.5)

This statute became effective June 9, 2016. Existing law prohibits smoking of tobacco products inside most enclosed spaces at a place of employment.

The new law expands the prohibition on smoking to an owner-operated business which is defined as one where the owner-operator is the only worker–meaning there are no other employees, independent contractors or volunteers working there. The new law also eliminates most prior exemptions that permitted smoking in certain work environments.

H. Janitorial Workers (AB 1978; Labor Code Sections 1420 et. seq)

This bill enacts new record-keeping, registration and training requirements for the janitorial industry. The intent is to protect janitorial workers from wage theft and sexual violence or harassment.

Effective July 1, 2018, an employer must register its business with the Division of Labor Standards Enforcement (“DLSE”) requiring the employer to make various disclosures and meet certain conditions. Thereafter, there are specified dates by which the DLSE and employers must be taken certain steps intended to minimize incidents of wage theft and sexual violence or harassment against janitorial employees.

I. Agricultural Employee Overtime (AB 1066; Labor Code Section 857 et. Seq)

Existing law states agricultural workers who work more than 10 hours per day are entitled to overtime at 1 1/2 times their regular rate of pay. Agricultural employers are also exempt from the requirement to provide one day’s rest in seven worked.

Effective January 1, 2017, agricultural employers are no longer exempt and cannot require employees to work more than six days in seven. The new law will phase in increased over time requirements for agricultural employees over a period of four years beginning January 1, 2019.

J. Single-User Restrooms (AB 1732; Health & Safety Code Section 118600)

  1. Effective March 1, 2017, all single-user toilets in any business establishment, place of public accommodation, or state or local government agency must be identified by signage as all-gender toilet facilities and designated for use by no more than one occupant at a time, or for family or assisted use. “Single user toilet facility” means a toilet facility with no more than one toilet and urinal with a lock.

K. Employment Protections for Victims of Domestic Violence, Sexual Assault or Stocking (AB 2337; Labor Code 230.1)

Existing law prohibits an employer with 25 or more employees from discharging or discriminating against an employee who is a victim of domestic violence, sexual assault or stalking for taking time off from work for specified purposes.

Effective July 1, 2017, employers must also inform, in writing, each employee of such rights at the time of hire or at any other time upon request of the employee. The Labor Commissioner must develop and post on its website a form an employer may use to comply with this notice requirement.

L. Itemized Wage Statements (AB 2535; Labor Code 226)

Existing law requires an employer to provide employees with an accurate itemized statement in writing which discloses certain information related to hours worked and wages paid. The new law clarifies that employers are not required to include in itemized wage statements the total number of work hours by an exempt employee.

M. Minimum Wage Violations (AB 2899; Labor Code 1197.1)

Under existing law, employers who pay less than the required minimum wage are subject to a civil penalty and damages. The new law requires that, prior to an employer appealing a Labor Commissioner’s decision to a court, the employer must post a bond with the Commissioner equal to the total amount the Commissioner ordered the employer to pay, excluding penalties.  The bond must be in favor of the employee and is forfeited to the employee if the court enters judgment against the employer and the employer fails to pay the amount owed within 10 days from entry of judgment.

N. Unfair Immigration Practices (SB 1001; Labor Code 1019.1)

Under existing law it is unlawful for an employer to require an employee to provide more or different documents then are required under federal law, or to refuse to honor documents provided which, on their face, reasonably appear to be genuine. The new law permits applicants or employees to file a complaint with the Division of Labor Standards Enforcement and recover a penalty of up to $10,000 against the employer.

 O. Revisions to the Regulations Governing the Fair Employment and Housing Act (“FEHA”). 

In April 2016, California Regulations were amended to require employers to specifically list all of the bases of discrimination prohibited by FEHA.  For example, an employer’s Equal Employment Opportunity Policy must list each such protected classification.

Employers are also required to amend their discrimination, sexual harassment and retaliation policies to include specific provisions regarding their complaint and investigation procedures.

For most employers, if their employee handbook’s discrimination, sexual harassment and retaliation policies have not been updated since April 2016, those policies are probably not compliant with the amended regulation.

 P. New I-9 Form Must Be Used By Employers

  1. U.S. Citizenship & Immigration Services (“USCIS”) has revised and issued a new I-9 Form effective November 14, 2016. Employers are required to begin using the new I-9 Form on January 22, 2017.
  2. 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.
  3. Employers must retain I-9 Forms while the employee is employed and for at least one year after the employee leaves the employer.
  4. Applicants should not be requested to fill out an I-9 Form until they have been offered employment.
  5. 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.
  6. The form can be filled out in hard copy or on the computer and printed. 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.
  7. 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.
  8. The USCIS has an Employer Handbook online to assist employers with their obligations.
  9. The new I-9 Form is available on the USCIS website at

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 employment laws, please feel free to contact Leonard Brazil by email at or Deborah Petito at or telephonically by calling the author at (213) 341-1359.



By Leonard Brazil

An employee has a desk job so he rarely leaves work in the course and scope of his employment. Over the course of his 15 years with the company, he has used his own car to visit a customer on just a handful of occasions.  One day during his commute home after a full day in the office, the employee runs a red light and, tragically, kills a pedestrian.  The deceased’s representative files a wrongful death suit against the employee and the employer.  The company’s first reaction is the employee was driving home after completing a full day of work and was not driving in the course and scope of his employment so it cannot possibly be liable for the accident.  However, the answer is not so clear-cut.

California law provides that employers are vicariously liable for tortious acts (i.e., negligent driving) committed by their employees during the course and scope of their employment. The general rule is employers are not vicariously liable for tortious acts committed by employees while they commute to and from work as part of their daily commute because it is considered to be outside the course and scope of their employment.  However, there is an exception to the general rule.

If an employer benefits from an employee commuting to or from work in his own vehicle, the commute may become part of that person’s workday rendering the employer liable for the accident occurring on the commute home. The determining factor is whether the employee having his vehicle available during work hours provides an incidental benefit to the employer.  If so, the employer may be liable for the accident.  For example, if an employer approves or requires an employee to make his vehicle available for business use as a condition of employment, doing so provides an incidental benefit to the employer; thus, the employee may be deemed to be in the course and scope of employment during the commute to or from home even if the employee uses the vehicle for work reasons only on an infrequent basis.  The rationale behind the law is to reallocate the inherent risk which arises from an employee’s commute from the innocent injured person to the employer when the vehicle is used for business purposes, whether required by the job or routinely used.

What Should An Employer Do

  1. If you have company vehicles, have your employees drive them exclusively for work related activities to avoid liability for accidents which occur while they commute in their personal vehicles. Also have such employees included under the company’s insurance policy.

2. If employees use their personal vehicle for work-related reasons:

 (a) Check with your insurance broker to be sure you have adequate policy limits.

 (b) Require such employees to provide proof of insurance with adequate policy limits and require them to immediately inform you if there is any change in coverage.

3. Require employees who drive a vehicle for work related reasons to provide proof of a valid driver’s license and immediately inform you if the license is suspended or revoked.

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 this article, please feel free to contact Leonard Brazil by e-mail at or Deborah Petito at or telephonically by calling the author at (213) 629-5700.

You Can Be Fired For Your Political Beliefs, Except in California

Heated debates over politics have become increasingly prevalent this election year.  Clark & Trevithick’s Leonard Brazil is quoted in’s article, You Can Be Fired for Your Political Beliefs about the protections that California employees have that employees of many other states don’t.


Job Applicant’s Criminal Conviction: When Can it be a Reason to Deny Employment?

By Leonard Brazil 

Effective April 1, 2016, California Regulation 11017.1 was amended to further limit an employer’s policy to consider criminal convictions in rejecting a job applicant or take adverse employment action against an existing employee.  The amended regulation arose out of the California Legislature’s concern that reliance on criminal convictions has had a disproportionate and adverse impact on individuals on the basis of their gender, race, national origin or other protected classification.

Certain Criminal History Excluded from Consideration:  The following types of criminal history cannot be considered by an employer or requested of an applicant or employee:

  • An arrest or detention that did not result in a conviction;
  • Referral to or participation in a pre-trial or post-trial diversion program;
  • A conviction that has been judicially dismissed or ordered sealed, expunged or statutorily eradicated pursuant to applicable law; and
  • A non-felony conviction for possession of marijuana that is two or more years old.

Limitations on Employer Policies Regarding Other Criminal Convictions:  If an employer has a policy to rely on other criminal convictions in deciding whether to hire an applicant or take adverse employment action against an employee (e.g., deny a promotion), the company must be able to demonstrate the policy is job related, consistent with business necessity and appropriately tailored.  The amended regulation states that to satisfy this criteria, the policy must take into account at least the following factors:

  • The nature and gravity of the offense or conduct;
  • The time that has passed since the offense or conduct occurred and/or the completion of the sentence; and
  • The nature of the job held or sought.

The amended regulation indicates that if an employer has a “bright-line,” across the board policy that a criminal conviction disqualifies an applicant or employee, the employer must satisfy a very high standard to demonstrate that such a rigid policy is appropriately tailored  Alternatively, an employer who conducts an individualized assessment of the qualifications of the applicant or employee and the circumstances surrounding the criminal conviction in deciding whether to rely upon the conviction will typically find it easier to demonstrate that the policy is appropriately tailored.

For example, if a person applies to be a delivery driver, a criminal conviction for theft a year ago may be an improper basis to deny employment because it is not job-related, consistent with business necessity or appropriately tailored.  However, if the criminal conviction were vehicular manslaughter for driving under the influence, denial of employment would likely be deemed to be job-related, consistent with business necessity and appropriately tailored.  Yet, if that conviction were 20 years old, the decision to not hire the applicant may not be appropriately tailored because of the passage of time from the conviction to the application for employment.

Employer Notice of Reliance on Criminal Conviction:  If an employer refuses to hire an applicant or takes adverse employment action against an employee based on a conviction obtained through a third-party background report or employer generated internal report, the employer must notify the person of the disqualifying conviction and provide a reasonable opportunity for the individual to present evidence that the criminal conviction information is inaccurate.  If it is established that the employer has inaccurate information, the criminal history cannot be considered in the employment decision.

What You Should Do

  1. Ensure that your criminal conviction policy is (i) job-related, (ii) consistent with business necessity and (iii) appropriately tailored.
  1. Review your job application form to ensure it does not inquire about:

(a)        An arrest not leading to a conviction;

(b)        Referral to or participation in a pre-trial or post-trial diversion program;

(c)        A conviction that has been judicially dismissed or ordered sealed, expunged or statutorily eradicated pursuant to applicable law; or

(d)        A non-felony conviction for possession of marijuana that is two or more years old.

An application that states “Have you ever been convicted of a felony?” might be deemed a violation of the amended regulation because it would cause an applicant to answer “yes” even if the conviction had been expunged.

  1. Educate those involved in the hiring process regarding the new limitations and requirements related to criminal convictions.

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 when considering this or any other employment issue.  If you wish to consult with the author of this post or another attorney at Clark & Trevithick, please contact Debbie Petito or Leonard Brazil by email at or telephonically by calling the author at (213) 629-5700.

Traps for the Unwary Lurk in New Paid Sick Leave Law

By Leonard Brazil

We’ve entered a new year and employers are scrambling to ensure they are in compliance with another layer of employment laws.  But first make sure you’ve already properly implemented the paid sick leave law that effectively kicked in on July 1 of last year and has already been amended once!

You are probably aware of the paid sick leave law so I won’t summarize it.  (You can review a summary here).  Instead, I want to focus on some of the traps for the unwary–nuances in the law which leave employers vulnerable to unknowing violations.

Employee Handbook’s Inclusion of Introductory Period.  Check whether your employee handbook includes a policy that a new hire’s first 30, 60 or 90 days is an “Introductory Period.”  Some of those policies state new hires must complete their Introductory Period before they begin to accrue sick leave or paid time off (PTO).  Such a delay in the accrual of sick leave or PTO would violate the paid sick leave law.  New hires are to commence accrual (or sick leave front loaded) immediately when hired if the employee has already worked in California for at least 30 days for the same employer within a year of commencement of employment.

Inconsistency With Family & Medical Leave Act.  Another trap for employers arises if they are covered by the federal Family & Medical Leave Act/California Family Rights Act (collectively “FMLA”).  Under the FMLA, the minimum increment of leave you may require an employee to take cannot exceed 1 hour.  However, the paid sick leave law states the minimum increment an employer may impose for the use of sick leave cannot exceed 2 hours.  The FMLA and paid sick leave law have different minimum increments of leave an employer can require.  A problem may arise because some FMLA policies state employees are required to use available sick leave while on FMLA for their own serious medical condition.  If employees take leave of 1 hour under the FMLA for their own serious medical condition and the employer applies available sick leave to the FMLA absence of 1 hour, the employer will have violated the sick leave law which does not allow sick leave in increments of less than 2 hours.

Determining Minimum Front Load Requirement.  The poorly drafted sick leave law also exposes employers to another surprise violation.  The law states an employer may “front load” sick leave at the beginning of the year instead of having it accrue through the year so long as the leave is not less than 24 hours or 3 days.  The California Division of Labor Standards Enforcement (DLSE) interprets the “24 hours or 3 days” differently than you may have thought.  The DLSE states that if a part-time employee works, for example, 4 hours a day, the minimum amount of leave which must be front loaded is not the amount of time they worked in 3 days (12 hours) as one would think—it would be 24 hours (See August 8, 2015 DLSE Opinion Letter).  I hope the DLSE’s interpretation will be rejected by the courts because it seems absurd to give employees more sick leave pay for their absence than would have been received if they actually worked those days!  Likewise, the DLSE states an employee working a regular shift in excess of 8 hours would be entitled to receive sick leave based on the total hours worked in 3 days.  For example, employees with a regular 10-hour shift would be front loaded 30 hours, not 24 hours.

Plaintiff employment lawyers will automatically look at an employer’s sick leave policy with the hope of snaring unsuspecting employers who think they are safe because they prepared a sick leave policy to comply with the new law—but have they?

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 when considering this or any other employment issue.  If you wish to consult with the author of this post or another attorney at Clark & Trevithick, please contact Debbie Petito or Leonard Brazil by email at or telephonically by calling the author at (213) 629-5700.

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