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.

Statutes

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 https://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 employment laws, please feel free to contact Leonard Brazil by email at lbrazil@clarktrev.com or Deborah Petito at dpetito@clartktrev.com or telephonically by calling the author at (213) 341-1359.

 

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.

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.

 

Southern California Employers Beware – The City of Los Angeles Requires Employees Receive At Least 48 Hours of Paid Sick Leave

 

By Deborah Petito

Just when employers thought they had finalized their paid sick leave policies to conform to state law, a number of local communities (e.g., San Francisco, San Jose and Santa Monica) have passed their own sick leave laws which require more than three days of sick leave. The City of Los Angeles joined ranks and passed their own ordinance on June 1, 2016 (“City Ordinance”).  The effective date of the new sick leave (and minimum wage) ordinance is July 1, 2016, so the City of Los Angeles did not give employers much time to revise their policies to comply with the new sick leave requirements.  However, the City is allowing employers with less than 25 employees until July 1, 2017 to come into compliance.  The size of the employer’s workforce is determined by the average number of employees employed in the previous calendar year.  In addition, certain non-profit employers will be able to qualify for a deferral rate if they meet certain conditions.  The difficulty with complying with this City Ordinance, as detailed below, is that the City Ordinance can reach employers outside the City.

Sick Leave Frontloading and Carryover is Higher than State Law.

The City Ordinance requires that employers provide employees who work in the City of Los Angeles (even if the employer is not located in the City of Los Angeles) sick leave either by (1) providing at least forty-eight (48) hours of sick leave at the beginning of each calendar year, each year of employment, or selected twelve month period (frontload method); OR, by (2) allowing employees to accrue sick leave at the rate of one hour for every thirty hours worked with a cap of not less than 72 hours (accrual method).  This is an enhanced benefit when compared with the California sick leave law which requires only 24 hours to be frontloaded and allows an employer who uses the accrual method to cap the accrual at 6 days or 48 hours.

The Family Circle Has Widened.

The City Ordinance widens the family circle allowing employees to use sick leave for those individuals specified in the California sick leave law and to take care of “any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.”  The employer will be hard pressed not to accept the employee’s representation of individuals falling into these categories.

Employers Can Ask for Written Documentation

The City Ordinance also differs from the California sick leave law because it specifies that an employer may ask for reasonable documentation of an absence from work while the California sick leave law is silent on whether documentation can be requested, leading some to advise employers not to ask for documentation.

Employees Who Work For Employers Not Located Within The City Can Be Covered.

The most far reaching aspect of this City Ordinance is that it applies to any employee who performs at least two hours of work for any employer within the geographic boundaries of the City.  The definition of employer is not limited to an entity doing business in the City so all employers in Southern California can be affected, particularly those who employ sales or delivery employees who spend at least two hours a week in the City of Los Angeles.  In addition, the City Ordinance provides for individual liability because it defines “employer” to include “a corporate officer or executive, who directly or indirectly or through an agent or any other person, including through the services of a temporary service or staffing agency or similar entity, employs or exercises control over the wages, hours or working conditions” of employees.

Enforcement and Rule-Making Will Be Local.

The Office of Wage Standards of the Bureau of Contract Administration is the City agency designated to enforce and administer the City Ordinance. This agency is charged with promulgating guidelines and rules employers can rely upon and which will have the “force and effect” of law.  Hopefully, these new guidelines and rules will be promulgated in the near future to provide specific guidance to employers.  This is especially important because the City Ordinance is not clear on whether or not employees can carryover sick leave that has been frontloaded.

Action Needed

At this point, employers who have employees who work in the City of Los Angeles should revise their sick leave policies to provide the enhanced sick leave benefits.

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 mailto:dpetito@clarktrev.com or Leonard Brazil at lbrazil@clarktrev.com 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 dpetito@clarktrev.com or Leonard Brazil lbrazil@clarktrev.com by email at or telephonically by calling the author at (213) 629-5700.

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