Category Archives: California

California Employers — Are You Providing School Activities Leave?

Did you know that in California, companies may be required to grant leave to employees to attend their children’s school activities.

School is back in full swing after the holidays, which also means parent teacher conferences, school assemblies, and other school-related activities are being scheduled.

With employees requesting time off to attend events at their child’s school, California employers may not be aware of two lesser known statutes (California Labor Code sections 230.7 and 230.8) that give parents (and other parental figures) of school-aged children protected time off to attend their child’s related school activities.

Who is a covered employer and employee?

Labor Code section 230.7 applies to all California employers regardless of size.  While Labor Code section 230.8 only applies to employers employing 25 or more employees at a single location.

What is a “parent”?

A “parent” is defined as a natural parent, guardian, stepparent, foster parent, or grandparent of a child of the age to attend kindergarten or grades 1 through 12 or a licensed child care provider.   It is important to note that this does not apply to adult children.

What types of leave may an employee be entitled to?

Under Labor Code section 230.7, employers are required to provide parents of school-aged children with time off to appear at their child’s school for disciplinary purposes.

Under  Labor Code section 230.8 , parents of covered employers may take up to 40 hours per year of job-protected time off to find, enroll, or reenroll their children in school or with a licensed child care provider, or to participate in activities of the school or child care provider. In order to take the protected time off, reasonable notice must be given to the employer before the scheduled absence.

In addition, any time taken for the reasons described above must not exceed eight (8) hours in any calendar month of the year. The code does not define child related school and care activities; however broad enough to suggest field trips, parent- teacher conferences and school assemblies are included.

Parents may also be entitled to 40 hours of job-protected leave for unscheduled absences for “emergency” situations.  Emergency situations are defined as a situation where a child cannot stay in the care of the school or child care provider for the following circumstances:

  • the school or child care provider has unexpectedly requested that the child be picked up,
  • behavioral or discipline problems,
  • unexpected closure or unavailability of the school or child care provider,
  • natural disasters such as fire, earthquake, or flood.

Taking leave for this purpose does not negate the parent’s obligation to inform employers of their unscheduled absence as soon as practicable.

 Can employers require Documentation?

An employer may request the employee provide documentation from the school or child care provider to prove the employee took time off for the reasons described above on a particular date and time.

How does other employment policies apply?

Employees may use any accrued/unused vacation or PTO for scheduled time off related to enrollment or school and child care organized activities. Employers are not required to offer paid time off independently to accommodate absences under section 230.8.

 

NEW CASE: Major Changes to California’s Reporting Time Pay Requirements

Does your organization require employees to call-in before a scheduled shift to determine if an employee actually needs to report to work that day?  If the answer is yes, then this new California Court of Appeals case imposes new reporting time pay requirements on your organization.

In a recent case (Ward v. Tilly’s Inc.), the California Court of Appeals has held that employers who require employees to call-in prior to a scheduled shift to determine whether the employee is needed that day, is required to pay the employee reporting time pay (at a minimum for 2 hours of work) even if the employee is told that he does not need to work that day.

Background

This case arises from a scheduling policy of a retailer (Tilly’s).  Under the policy, employees were required to call in approximately two hours before the start of a scheduled shift to determine whether they needed to come to work for that shift.  If the employee was told to come into work, the employee was paid for his scheduled shift.  However, if the employee was told not to come into work, the employee received no pay for the day. Continue reading NEW CASE: Major Changes to California’s Reporting Time Pay Requirements

NEW CASE: Employee’s Voluntary Use Of Company Vehicle For Commuting Is Not Compensable

In a recent case, (Hernandez v. Pacific Bell Telephone Company) the California Court of Appeal clarified a long-standing law that an employee’s voluntary use of a company vehicle during normal commute is not be considered as “hours worked” for purposes of compensation

Background

The company has issued employees who performed home installations use company vehicles equipped with company tools that employees were required to use for installation jobs.  Prior to 2009, these employees began and ended their work day in the company parking garage, where the employees picked up and returned their company vehicle on a daily basis.  Employees were paid for the time spent travelling from the garage to their first job of the day and the time spent travelling back to the garage after their last job, but they were not paid for the time spent travelling between the garage and their residence.

In 2009, the company started a program where employees were able to voluntarily take the company vehicle home.  This enabled employees who chose to participate in the program to drive from home to the first job of the day and, following the last job of the day, drive back to their residence – bypassing the company parking garage. Continue reading NEW CASE: Employee’s Voluntary Use Of Company Vehicle For Commuting Is Not Compensable

CALIFORNIA EMPLOYERS — Be Sure To Reset The Clock On Employee Sexual Harassment Training

This past fall, California enacted  Senate Bill 1343,  a law that greatly expands the sexual harassment training requirements (AB 1825 training requirements) in California.

As we previously reported (in”NEW LAW: New Sexual Harassment Training Requirements For California Employers“), this law requires California employers with five or more employees provide sexual harassment training to both non-supervisory and supervisory employees (including all temporary and/or seasonal employees) as follows:

  • Existing Non-supervisory Employees: At least 1 hour of sexual harassment training by January 1, 2020.  Thereafter, sexual harassment training must be provided once every two years.
  • Non-supervisory Employees hired after January 1, 2020: At least 1 hour of sexual harassment training within 6 months of the employee’s hire date.  Thereafter, sexual harassment training must be provided once every two years.
  • Temporary or Seasonal Employees: At least 1 hour of sexual harassment training within 30 calendar days after the hire date or within 100 hours worked if the employee will work for less than six months.
    • NOTE: If the employee is employed by a temporary services employer, the training must be provided by the temporary services employer, not the client.
  • Existing Supervisory Employees: At least two hours of sexual harassment training must be provided by January 1, 2020.  Thereafter, sexual harassment training must be provided once every two years.
  • Supervisory Employees hired after January 1, 2020: At least 2 hours of sexual harassment training within 6 months of the employee’s hire date.  Thereafter, sexual harassment training must be provided once every two years.

Continue reading CALIFORNIA EMPLOYERS — Be Sure To Reset The Clock On Employee Sexual Harassment Training

NEW DEVELOPMENT: Certain Truck Drivers Exempted From California’s Rest and Meal Period Requirements

Good news for certain California trucking companies — California’s meal period and rest break requirements no longer apply to truck drivers who are regulated by the U.S. Department of Transportation’s hours-of-service requirements.

How did this happen?

To understand how this happened, we need to first give a brief history of this issue.

California’s meal period and rest period laws are quite onerous – especially for trucking companies.  These laws require all California employers provide employees with a duty-free 30-minute meal period to begin before the employee completes five hours of work; employers must also provide paid 10-minute duty-free rest breaks for every four-hour work period or “major fraction thereof.”   Among the problems that trucking companies have with complying with these requirements is actually proving compliance with the requirements.  How does one prove that a driver actually took the rest and/or meal period? Continue reading NEW DEVELOPMENT: Certain Truck Drivers Exempted From California’s Rest and Meal Period Requirements

NEW CASE: Non-Solicitation Clauses In Employment Agreements Are Unenforceable In California

In a recent case (Barker v. Insight Global), the California Court of Appeals has held that non-solicitation clauses (i.e. a contract provision that restricts former employees from soliciting former co-workers) in employment agreements are unenforceable.  This is the second California Court of Appeals to reach this conclusion in less than six months (the previous case was AMN Healthcare, Inc. v. Aya Healthcare Services). 

In both cases, the Court concluded that non-solicitation clauses in employment agreements constitute an unlawful restraint on trade and are therefore unenforceable.

It is recommended that all California employers review their employment-related agreements and remove any non-solicitation clauses.

NEW CASE Reminds California Employers Of The Business Expense Reimbursement Requirement

A recent $5.4 million settlement of a California wage and hour class action (Marley Castro, et al. v. ABM Industries, Inc.) reminds employers of the far-reaching scope of California Labor Code section 2802’s business expense reimbursement requirement.

In this case, the plaintiffs alleged that the company had failed to reimburse all employees for the required use of their personal cell phones for business-related purposes.  According to the plaintiffs, the company required all employees to use their personal cell phones to (1) clock in and out from work and (2) to communicate with their supervisors.

While this case was settled, it serves as an important reminder that California employers are required to reimburse their employees for business-related use of their personal cell phones.  Specifically that California law requires that employers reimburse employees for “some reasonable percentage” of their cellphone bills if the employer requires them to use their personal cellphones for a business purpose – regardless of whether the employee incurs charges over and above what his or her plan costs.

Some common business-related uses for which employers may require employees use their personal cell phones include:

  • Clocking in and out for work or meal periods;
  • Checking or updating schedules via a scheduling app or otherwise requiring them to use data;
  • Texting or calling a manager regarding scheduling or for other work-related purposes;
  • Using data plans for GPS purposes;
  • Requiring employees to use cellphones for purposes of responding to emergency calls or for on-call time periods;and
  • Any other required use of a personal cellphone (text, call, or data) for business-related purposes.

It is recommended that all California employers review their current reimbursement policies and determine whether they are currently reimbursing employees for required business-related cell phone usage.  If employees are required to use their cell phones for work, employers have the following options available to them:

  • reimburse employees for actual cell phone fees incurred for business purposes;
  • reimburse for a percentage of cell phone fees that accurately reflects the amount of mandatory business usage (and inform employees that if their business-related use exceeds that flat rate, a process employees should follow for reimbursement); or
  • provide employees with a cellphone or another communication alternative for business use .

NEW CASE: California Employers Beware – Business Owners Can Be Held Personally Liable For Wage And Hour Violations

In a recent case (Atempa v. Pedrazzani), the California Court of Appeal held that an owner of a restaurant can be held personally liable for violations of California’s wage and hour law.

In this case, two former employees of a restaurant filed a claim against the restaurant (business entity) and the owner of the restaurant (personally) for unpaid wages.  Specifically, the former employees claimed that they were not paid minimum wage and overtime in accordance with California law.

By including the owner of the restaurant in the lawsuit, the former employees were testing whether the amendments made to California Labor Code §558.1 through the A Fair Day’s Pay Act (SB 588) really meant that certain individuals could be held personally liable for wage and hour violations without first “piercing the corporate veil” (i.e. claiming that the employer engaged in fraud, failed to follow corporate formalities, or the company was inadequately capitalized). Continue reading NEW CASE: California Employers Beware – Business Owners Can Be Held Personally Liable For Wage And Hour Violations

NEW CASE: California Court Approves Employer’s Rounding Practice

In a recently-decided case (Donohue v. AMN Services, LLC), a California appellate court found that an employer’s rounding of employee’s time to the nearest 10-minute increment did not violate California law because the practice did not disfavor employees.

In this case, the plaintiff was a non-exempt nurse recruiter who worked for a healthcare staffing company.  The recruiters, including the plaintiff, logged their time using a computer-based timekeeping system.  Despite the fact that the computer-based timekeeping system logged employees’ punches in real time, the company had a practice of rounding employees’ time to the nearest 10 minutes (e.g. all punch times between 7:55 a.m. and 8:04 a.m. would record as 8:00 a.m., and all punch times between 8:05 a.m. and 8:14 a.m. would record as 8:10 a.m.).  The plaintiff filed a class action lawsuit against the employer claiming that the company’s rounding practice violated California law. Continue reading NEW CASE: California Court Approves Employer’s Rounding Practice

NEW GUIDANCE: California Pay Equity Task Force Issues Guidelines for Complying with the California Equal Pay Act

In January 2016, SB 358, the amended version of the California Equal Pay Act, took effect. The California Equal Pay Act requires all California employers pay the same wage to employees who perform “substantially similar work” the same wage regardless of gender, ethnicity or race.   Under this law, employers are also required to provide an applicant with a pay scale for a position following a “reasonable request.”  Finally, it prohibits employers from requesting an applicant’s prior salary history and from relying on an applicant’s salary history alone to justify a disparity in compensation “based on sex, race or ethnicity.”

Following the effective date of the amended California Equal Pay Act, the California Commission on the Status of Women and Girls launched a Pay Equity Task Force tasked with the responsibility of monitoring the implementation of the new law.  Recently, this task force issued written guidance for employees, employers and unions on how they may comply with the California Equal Pay Act. Continue reading NEW GUIDANCE: California Pay Equity Task Force Issues Guidelines for Complying with the California Equal Pay Act