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.
- Page 1
Are Employers Required to Grant Employees Leave to Attend Alcohol/Drug Rehabilitation?
If your Company is covered by California Labor Code § 1025, then you will be required to reasonably accommodate the request, regardless of whether your Company policies permit it. The California statute provides, that:
“Every private employer regularly employing 25 or more employees shall reasonably accommodate any employee who wishes to voluntarily enter and participate in an alcohol or drug rehabilitation program, provided that this reasonable accommodation does not impose an undue hardship on the employer.
Nothing in this chapter shall be construed to prohibit an employer from refusing to hire, or discharging an employee who, because of the employee's current use of alcohol or drugs, is unable to perform his or her duties, or cannot perform the duties in a manner which would not endanger his or her health or safety or the health or safety of others."
If your Company employs more than five employees, then you are also covered by FEHA. Alcoholism/drug addiction is likely a disability, and therefore, you will also be required to reasonably accommodate under FEHA.
What may an Employer Lawfully Deduct from an Employee's Final Paycheck?
Various provisions of the California Labor Code prohibit employers from withholding wages to which an employee is entitled. For example, Cal. Lab. Code § 212 prohibits employers from discounting amounts owed to employees and Lab. Code § 216 prohibits a person who has the ability to pay from willfully refusing to pay wages owed to an employee. Moreover, Lab. Code § 225.5 provides a civil sanction in the form of penalties for violation of these sections, intentionally or unintentionally.
Any employee advances upon which the employer will seek repayment must be authorized in writing directing the employer to authorize only the amounts authorized for each pay period. The Division of Labor Standards Enforcement will not permit a “balloon payment” to be recovered from a final check, even if specifically authorized by the employee.
However, the DLSE may recognize an exception to the principle if the employee enters into a new, valid agreement at or before the termination that expressly authorizes the deduction of the full balance owed from the final paycheck.
Can an Employer Legally Deduct Breakage From a Non-Exempt Employee's Compensation?
California’s Wage Orders generally prohibit employers from taking deductions from a nonexempt employee’s wages as a result of any cash shortage, breakage or loss of equipment.
Given that this is a new employee who made a $60 mistake, it is unlikely that this is permissible. Only where an employer can show that the loss is caused by a dishonest or willful act or by the employee’s gross negligence which does not appear to be the case here.
Updating policies to ensure that they are legally compliant is crucially important because the policy alone is unlawful.In this situation, it would be best to use this mistake as a teaching/counseling opportunity only. It is likely that your policy stating that the Company has the right to deduct non-recoverable losses from the employee is unlawful.
Is Company Required to Reimburse its Employees for Claimed Business Use of Personal Cars, Cellphones, Computers and Other Costs?
This is where carefully crafted workplace policies are crucial. Cal. Labor Code § 2802 requires employer to indemnity employees for all necessary expenses or losses they incur in direct consequence of discharging their duties or obedience of the employer’s directives. The key here is on whether these expenses are “necessary” which should be clearly defined in your policies or every employee who chooses to use their personally-owned car, cell phone, home computer, ipad, home phone, and you name it, will be asking for reimbursement because they used it for work.
In a 2014 California Appellate Court case, Cochran v. Schwan’s Home Services, 228 Cal.App.4th 1137 (2014), the Court held that the employers was obligated to reimburse an employee’s personal cell phone used for work based on the employer’s clear policy requiring service representatives use their personal cell phones for work.
The Court rejected consideration of whether or not the employee actually incurred any costs in situations where the employee, for example, paid a fixed monthly amount for an unlimited plan or someone else paid for the phone). The Court held that the employer was still liable for some “reasonable percentage” of the employee’s cell phone that was required for work, regardless if the employee actually incurred any costs on their own.
Absent policies, procedures and agreements defining use of technology and devices for your employees, California companies remain exposed to potential liability to all their employees who are using personal devices for “work.” Labor Code § 2802(c) provides that the employees are entitled to attorneys’ fees incurred by the employees enforcing their rights to recovery. Often times, violations of the Labor Code will be accompanied by a Private Attorney General Act (PAGA) claim which permits an aggrieved employee to stand in the shoes of the state in seeking compliance.
Can an Employer Limit Damages an Employee Recovers for Unlawful Harassment if S/He Chooses to Sue?
A California employer can limit damages awarded to an employee under California law based on the doctrine of avoidable consequences. To prevail on this defense, an employer must prove three elements:
- The employer took reasonable steps to prevent and correct workplace sexual harassment;
- The employee unreasonably failed to use the preventive and corrective measures that the employer provided; and
- The reasonable use of the employer’s procedures would have prevented at least some of the harm that the employee suffered.
The employer must be prepared to show that it adopted appropriate anti-harassment policies and communicated essential information to its employees concerning the policies and implementing procedures. In addition, the procedures must protect confidentiality as much as practicable, and the employer consistently and firmly enforces its policies.
Moreover, the employer will also want to show all evidence tending to show that the employer took effective steps to encourage individuals to report harassment and for the employer to respond effectively.
If an employer can show that if the employee had taken reasonable steps to utilize the complaint procedures, the harassing conduct would have stopped, the employer will still remain liable in all instances for any compensable harm the employee suffered before the time at which the harassment would have ceased.
Note: under federal law, this defense acts as a complete affirmative defense barring any recovery, but most cases in California are not brought under federal law.
Can an Employer Legally Change the Hours of Work and Workdays of Its Non-Exempt Non-Union Employees?
Unless your employer has changed your work days and hours for an unlawful purpose, generally the answer is yes. There is also typically standard language in your employee handbook or other policies that states an employer’s right to change days and hours of employment. In addition, California employers are required to give “Notice to Employee” of changes in the employment relationship, although this is rarely done other than initially upon hire. (See, Labor Code § 2810.5 notice available on www.dir.ca.gov).
Any such notice is usually accompanied with a reminder that nothing in the notice changes the at-will employment relationship.
Who is the Best Person to Update Handbooks, Policies, Procedures, Processes and Projected Costs of Compliance?
An employment litigator is the best person to update handbook, policies, procedures, forms and agreements because s/he is regularly litigating employment issues that they then include in their template handbooks, agreements and forms. Because policies, procedures, processes and agreements governing the use of technology, devices, and non-public electronically stored information are prevalent in employment litigation, an employment litigator who regularly confronts these issues is in the best position to counsel employers in these critically important areas.
Given the importance of compliance, we offer both reduced fees and flat-rate packages in connection with this type of work.
What are the Legal Ramifications of an Outdated Employee Handbook Not Followed by a California Employer?
A handbook sets forth the terms and conditions of employment and the policies and procedures that govern the relationship. Often times, the decision to terminate an employee, for example, was based on legitimate, non-discriminatory reasons, but the outdated employee handbook raises a number of employment-related violations that may have nothing to do with the termination that allows the employee to assert legal claims against the employer individually or on behalf of a class.
Moreover, to the extent that there are policies that are not followed at all, or consistently, by the employer, the policies will be used against the employer.