Answers to our Clients’ Most Frequently Asked Questions
Have a question? We probably have answered it in one of our many informative frequently asked questions (FAQ’s). To find the answers you’re looking for, you can click on “Show Answer.” You can also select a specific category from the drop-down box to narrow the results, or use the search box at the top or bottom of the page to access relevant information from anywhere on the site.
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Is an Employer Required to Pay a Salaried Employee Overtime for After-Hours or Weekend Work?
It depends on whether you are an exempt, salaried employee not subject to overtime or a non-exempt, hourly employee, subject to overtime. A full analysis of the Wage Order(s) governing your workplace, and the actual duties that you perform dictate whether or not you are classified correctly. Generally, if you are performing a position in which more than 50% of your workday is not spent making independent business decisions, then your salaried amount would be divided by 40 hours a week/8 hours a day to determine your regular rate of pay.
For any hours that you work in California answering emails/calls after hours that exceeds 8 hours in a workday or 40 hours in a workweek, then would be compensated at 1.5 times the regular rate.
Most employers require that overtime must be authorized. So, if you were responding to emails and calls over the weekend in response to others, you should report them immediately to your supervisor and request compensation. Your employer is likely to instruct you not to perform work of any kind without authorization in the future, and that you may be subject to disciplinary action if it occurs again. Your employer still must pay the overtime incurred, but the only way the employer can police overtime is to require pre-authorization.
A Former Employee Opens a New Competing Company. What are the Best Practices to Protect his New Company?
As a former employee, you must understand what you can and cannot do with respect to any information that you learned through your former employer that you may rely upon in opening your new business. You will also need advice on contacting former clients, vendors and employees to announce your new Company, and the limits, if any, on solicitation.
As a new business owner, you also need to understand California employment laws that apply to your new role as an employer and implement policies, processes, handbooks and follow best practices to protect your new company.
What is a Company's Obligations when an Employee Requests Copies of all Payroll-Related Records?
Under California Labor Code § 226, California employers are required to furnish employees with itemized wage statements that show nine (9) specific categories of information, such as all hourly rates, hours worked, gross wages earned, etc. The employer must provide these wage statements at the time employees are paid or semi-monthly. The scope of this one is easier than California Labor Code §1198.5. In addition to requiring itemized wage statements, this section also requires the employer to produce those wage statements to employees on request or a computer-generated report that shows all nine (9) categories of information required. Employers must make the records available to the employee within twenty-one (21) days.
California Labor Code §226 also authorizes the employee to sue for a court order requiring the employer to produce the information and also a penalty of $750, and employees can also recover attorneys’ fees for bringing the lawsuit.
Violation of the statute is also a criminal infraction, however, unlike California Labor Code §1198.5, there is no exception for pending litigation. Further discussion of the other statutory provisions requesting copies of personnel records and signed documents can be found in other FAQ’s.
What are a Company's obligations when an Employee requests Copies of all Signed Documents?
Under California Labor Code § 432, Any document that an employee (or job applicant) “signs” that is related to obtaining or holding employment must be provided under Labor Code § 432 upon request. Examples include job applications, handbook acknowledgments, arbitration agreements, job descriptions, and any signed policy acknowledgments (anti-harassment, retaliation, discrimination, at-will employment, meal/rest break polices, etc.). There is no timeline for production and there is no private right of action to enforce compliance.
However, it does not mean that employers should ignore requests because as a practical matter, documents covered by this section can also be covered by Labor Code § 1198.5 (i.e., signed performance reviews or signed disciplinary write-ups).
Significantly, failure to comply with such a request is a misdemeanor. Further discussion of the other statutory provisions requesting copies of personnel records and payroll records can be found in other FAQ’s.
What are a California Company's Obligations when an Employee Requests a Copy of his/her Personnel File?
In California, three principal laws govern employee requests to inspect personnel records—California Labor Code §§ 1198.5, 226, and 432.
Under Labor Code § 1198.5, employees (and former employees) have the right to inspect personnel records maintained by the employer “related to the employee’s performance or to any grievance concerning the employee.” Employers must allow inspection or copying within thirty (30) days of the request, which can be made by the employee or their representative (often an attorney). That time period can be extended by five (5) days by mutual agreement.
Documents such as performance reviews, commendation letters, disciplinary notices (“write-ups”), corrective action plans, and complaints about the employee would likely be covered.
The language in Labor Code § 1198.5 is broad; it uses the terms “related to” and “concerning.” As a result, determining exactly what other documents might be covered can be a challenge. But the Labor Commissioner has issued some guidance on its website on what might be included in a “personnel file,” including, in addition to the above, things like an employment application, notices of leaves of absence or vacation, education and training notices, and attendance records. Unfortunately, there is no appellate case interpreting the scope of the current statutory language. So the overall scope of the statute still remains an open-ended question.
However, the statute excludes files that are (1) records about a criminal offense, (2) letters of reference, and (3) ratings, reports or records obtained before the employee’s employment, prepared by identifiable examination committee members, or obtained in connection with a promotional examination. In addition, employers can redact the names of any non-supervisory employee mentioned in the requesting employee’s file.
There are also situations when the statute does not apply. For example, if an employee (or former employee) files a lawsuit that “relates to a personnel matter” against the employer, then the right to inspect or copy the records ceases during the pendency of the lawsuit. The inclusion of this provision strongly suggests that Labor Code §1198.5 is not a replacement for broad civil discovery.
If the employer does not permit the inspection or copying of these records in time, the employee may bring an action to obtain a court order (injunction) for the employer to comply with the statute. Employees are also entitled to a statutory penalty of $750 and an award of attorneys’ fees and costs for bringing the action. In addition, failure to comply is a criminal infraction. Further discussion of the other statutory provisions requesting copies of signed documents and payroll records can be found in other FAQ’s.
Is a Company Legally Responsible to Indemnify and Pay for the Defense of Accused Supervisor Named in Sexual Harassment Lawsuit?
A California Company is generally vicariously liable for harassment committed by its supervisory employees and perhaps for its non-supervisory employees. In some instances, for example, where the allegations were purportedly committed by a supervisor, liability will be strictly imposed regardless of the employer's participation in or knowledge of the harassment. Retaining one attorney to represent the corporation and the employee is the simplest method of defending a sexual harassment claim. However, this method should generally be used only when an investigation discloses that the employee did not commit the harassment.Otherwise, a conflict of interest between the employee and the employer will exist, especially if indemnity is not provided.
While some conflicts can be waived, the Company should be careful in requesting a waiver from the employee because of the risk that the employee may later contend that he did not receive an adequate defense as a result of the attorney's efforts to defend the Company. There may also be strategic reasons to avoid using the same attorney, e.g., to avoid the suggestion that the Company condones the alleged activity or that the Company will pay any judgment.
If, however, a joint defense is provided, it should be pursuant to a written agreement in which the ground rules are identified, e.g., waiver of possible conflicts, no cross-claims, and sharing of information. The use of a single attorney should also be monitored carefully throughout the litigation for changes in circumstances. If the employee is to retain separate counsel, the Company may suggest possibilities but it should leave the choice to the employee so as to avoid any suggestion that the Company is controlling the defense. The cost of a defense is often prohibitive for the individual; homeowners and Directors & Officers’ insurance policies do not usually cover the cost of defending these suits. For this reason, employees usually seek reimbursement or advancement of their defense expenses from their employer. However, if there is a finding of harassment, the employee generally must repay the defense costs advanced on his behalf. The Company would also generally be barred from indemnifying the employee for his liability because it is hard to conceive of many situations when harassment would be considered to be in the best interests of the Company or to have been committed in good faith.
California Pregnancy Disability Leave Law
The Fair Employment and Housing Act, and specifically, the Pregnancy Disability Leave Law (PDLL) apply to you if you employ five or more employees. Assuming that you do, PDLL allows her to take up to four months of protected leave. This leave runs concurrently with the Federal Family and Medical Leave Act (FMLA), but not California’s Family Rights Act (CFRA), if you are covered under the family leave laws that apply generally to employers with 50 or more employees. If you are covered under the family and leave laws, she could take up to four months for pregnancy disability/FMLA leave, and still have another 12 weeks of protected leave under CFRA for bonding with a new child after she has the baby.
Employee Submitted Doctor Note Stating Employee Unable to Return to Work for a Month. What are the Company's Rights?
This is one of the most common scenarios. Yet, most employers fail to address physician notes or requests for leave by employees that are legally compliant with all potential federal and state laws that may apply. Given the lack of information initially provided, as is the case here and is typically the case, the onus is on the employer to abide by all potential laws the employee may be eligible for leave. These include:
- Federal and state family and medical leave laws, the Federal Family and Medical Leave (FMLA) and California’s Family Rights Act (CFRA) that generally applies to 50 or more employees;
- Federal and state disability laws, the Federal Americans with Disabilities Act (“ADA”) that generally applies to fifteen or more employees, and California’s Fair Employment Housing Act, that generally applies to five or more employees;
- Federal military leave laws, The Uniformed Services Employment and Re-employment Rights Act of 1994 (USERRA), that generally applies to employers of any size;
- California Workers’ Compensation Act, (“WCA”) that generally applies to 1 or more employees;
- California’s Pregnancy Disability Leave Law (“PDLL”) that generally applies to five or more employees;
- California’s Organ Donation Leave (“ODL”) and Bone Marrow Leave (“BML”) that generally apply to 15 or more employees;
- California’s School Activities Leave (“SAL”) and Domestic Abuse/ Sexual Assault/Stalking Leave, that generally apply to 25 or more employees;
- California’s School Appearance Leave, Jury Duty/Witness Leave, Victims of Crime Leave or California’s Voting Leave that apply to all California employers;
- California’s Civil Air Patrol leave, that generally applies to 10 or more employees;
- California’s Volunteer Firefighting, Reserve Peace Officer, and Emergency Rescue Personnel Leave, that generally applies to employers with 50 or more employees.
- California’s paid sick leave law, the Healthy Workplaces, Healthy Families Act of 2014, that generally applies to all California employers, with limited specified exceptions.
After determining all of the possible leave laws that cover your Company, then each law must be analyzed to determine if the employee is eligible to even qualify for the leave. Some of the federal and state laws run concurrently and others do not. In addition to legal compliance, any Company policies addressing leaves must also be followed by the employer.
Since most of the laws must allow the employee sufficient time to provide the requested information, employers typically must provisionally grant leave until the employee provides the required information. Since you are a California employer, you are likely covered under the Healthy Workplaces, Healthy Families Act of 2014. The number of days of paid sick leave the employee is entitled to is determined by reviewing your Company policy, California’s paid sick leave law, and any local ordinance that applies.
The administrative burden of obtaining the necessary documentation from an employee to certify the need for any of the leaves for which the employee may be eligible for is significant. In addition, an employer must track the employee’s time out on leave. This may seem straightforward, however, many of these leaves of absences provide for “intermittent” leave, which allows the employee to take sporadic leaves of absences in increments as small as 30 minutes. Moreover, an employer has to allow the qualified employee to take the protected leave, regardless of the employer’s current business condition. For example, an employer could already have several employees out on other protected leaves of absences, but still would be required to provide a statutory leave of absence to another employee, thereby making management of the workforce extremely difficult, as could be the case in the example here. Finally, each protected leave of absence brings with it a potential threat of litigation. If an employee is terminated or disciplined in proximity to a recent request or taking of a leave of absence, there is a significant risk of a lawsuit claiming retaliation or wrongful termination.
Employee requesting 12 Weeks of Family and Medical Leave. Is the Company Required to Provide it?
If you meet the definition of covered employer and the employee meets eligibility requirements, then yes. The federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) - applicable to employers with 50 or more employees - contain overlapping and sometimes conflicting employee rights and employer obligations regarding California family leave. The FMLA and CFRA both require covered employers to provide time off for personal illness, to attend to the illness of a family member and in connection with the birth or adoption of a child. While this is generally unpaid leave, depending on the type of leave taken and your policies, the employee may elect or be required to use accrued and unused vacation and/or sick time. Though this sounds simple, FMLA leave act and CFRA issues are among the most litigated of all employment law cases and can result in large liabilities.
Is Denial of Paid Sick Leave for Employee Physical based on Company Policy Unlawful?
You have asked, "One of our hourly non-exempt non-union manufacturing workers who has been employed in our California warehouse for over a year asked to use four hours as paid sick leave for a physical. I told him that he cannot just take four hours off and we do not provide paid sick time. The employee told me that was illegal. Is that true?"
Based on the facts, it appears to be a violation of the Healthy Workplaces, Healthy Families Act of 2014. All employees who work at least 30 days for the same employer within a year in California, including part-time, per diem, and temporary employees, are covered by this California law with some specific exceptions, that do not appear to apply here.
Generally, the law requires employers to provide and allow employees to use at least 24 hours or three days of paid sick leave per year and caps accruals at 48 hours.
However, at least seven California cities have enacted their own paid sick leave ordinances, offering employees in those cities even more paid sick leave than the California law. Those cities include: San Francisco, Oakland, Emeryville, Los Angeles, San Diego, Santa Monica, and Berkeley, so it is important to make sure that you comply with these local ordinances also.
Under California's paid sick leave law, employees can take paid sick leave for themselves or a family member, for preventive care or diagnosis, care or treatment of an existing health condition; preventive care includes annual physicals. The employee may decide how much paid sick leave he or she wants to use (for example, whether you want to take an entire day, or only part of a day). The employer can require the employee to take a minimum of at least two hours of paid sick leave at a time, but otherwise the determination of how much time is needed is left to the employee. Retaliation against an employee for exercising his/her rights is also against the law. In these situations, we counsel and updating your written policies and processes to ensure compliance going forward.