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EMPLOYMENT LAW FAQ

EMPLOYMENT LAW – FREQUENTLY ASKED QUESTIONS:

One of the best websites to find information relating to California employment laws is the California Department of Industrial Relations and it includes a frequently asked question page on hours, working conditions, etc. [http://www.dir.ca.gov/dlse/DLSE-FAQs.htm]. For example, the Department of Industrial Relations website [http://www.dir.ca.gov/dlse] – which provides copies of the laws, as well as other resource materials states, such as the California Industrial Commission’s Wage Orders [which include the always confusing exemptions – such as for administrative employees, outside sales employees, and executive employees], overtime laws, requirements for providing seating for employees, child labor laws, payday notice, labor contractor statues, and other important areas of wage and hour laws, including required posters and notices; for example, the DLSE website states under description of employee sick leave:
Healthy Workplace Healthy Family Act of 2014 (AB 1522)
An employee who, on or after July 1, 2015, works in California for 30 or more days within a year from the beginning of employment, is entitled to paid sick leave. Employees, including part-time and temporary employees, will earn at least one hour of paid leave for every 30 hours worked. Accrual begins on the first day of employment or July 1, 2015, whichever is later.
Exceptions: Employees covered by qualifying collective bargaining agreements, In-Home Supportive Services providers, and certain employees of air carriers are not covered by this law.
An employer may limit the amount of paid sick leave an employee can use in one year to 24 hours or three days. Accrued paid sick leave may be carried over to the next year, but it may be capped at 48 hours or six days.
Usage
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• An employee may use accrued paid sick days beginning on the 90th day of employment.
• An employee may request paid sick days in writing or verbally. An employee cannot be required to find a replacement as a condition for using paid sick days.
• An employee can take paid leave for employee’s own or a family member for the diagnosis, care or treatment of an existing health condition or preventive care or for specified purposes for an employee who is a victim of domestic violence, sexual assault or stalking.

Employers
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There are several things employers must do to comply with the Healthy Workplace Healthy Family Act of 2014 (AB 1522).
• Display poster on paid sick leave (Spanish) (Vietnamese) where employees can read it easily.
• Provide written notice to employees with sick leave rights (Spanish) (Vietnamese) at the time of hire.
• Provide at least 24 hours or three days of paid sick leave for each eligible employee to use per year.
• Allow eligible employees to use accrued paid sick leave upon reasonable request.
• Show how many days of sick leave an employee has available. This must be on a pay stub or a document issued the same day as a paycheck.
• Keep records showing how many hours have been earned and used for three years.
Retaliation or discrimination against an employee who requests or uses paid sick days is prohibited. An employee may file a complaint with the Labor Commissioner against an employer who retaliates or discriminates against the employee for exercising these rights or other rights protected under the Labor Code. Local offices are listed on our website at http://www.dir.ca.gov/dlse/DistrictOffices.htm.
Seating must be provided to employees:
IWC Order 4 – regulating professional, technical, clerical, mechanical and similar occupations states, as do the other IWC Orders:
(A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.

(B) When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties.

Paragraph 14 of the IWC Orders all state the following, except for IWC Order 14 – Agricultural Occupations – which provides as follows: 13. SEATS – When the nature of the work reasonably permits the use of seats, suitable seats shall be provided for employees working on or at a machine.

In addition, under meal periods, the Department provides the following answers to frequently asked questions [http://www.dir.ca.gov/dlse/FAQ_MealPeriods.htm]:
In California, an employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than thirty minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee. A second meal period of not less than thirty minutes is required if an employee works more than ten hours per day, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and employee only if the first meal period was not waived. Labor Code Section 512. There is an exception for employees in the motion picture industry, however, as they may work no longer than six hours without a meal period of not less than 30 minutes, nor more than one hour. And a subsequent meal period must be called not later than six hours after the termination of the preceding meal period. IWC Order 12-2001, Section 11(A)
Unless the employee is relieved of all duty during his or her thirty minute meal period, the meal period shall be considered an “on duty” meal period that is counted as hours worked which must be compensated at the employee’s regular rate of pay. An “on duty” meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the employer and employee an on-the-job paid meal period is agreed to. The written agreement must state that the employee may, in writing, revoke the agreement at any time. IWC Orders 1 -15, Section 11, Order 16, Section 10. The test of whether the nature of the work prevents an employee from being relieved of all duty is an objective one. An employer and employee may not agree to an on-duty meal period unless, based on objective criteria, any employee would be prevented from being relieved of all duty based on the necessary job duties. Some examples of jobs that fit this category are a sole worker in a coffee kiosk, a sole worker in an all-night convenience store, and a security guard stationed alone at a remote site.
If the employer requires the employee to remain at the work site or facility during the meal period, the meal period must be paid. This is true even where the employee is relieved of all work duties during the meal period. Bono Enterprises, In. v. Bradshaw (1995) 32 Cal.App.4th 968.
If an employer fails to provide an employee a meal period in accordance with an applicable IWC Order, the employer must pay one additional hour of pay at the employee’s regular rate of pay for each workday that the meal period is not provided. IWC Orders and Labor Code Section 226.7 This additional hour is not counted as hours worked for purposes of overtime calculations.
In all places where employees are required to eat on the premises, a suitable place for that purpose must be designated. This requirement does not, however, apply to employees covered by IWC Order 16-2001, on-site occupations in the construction, drilling, logging and mining industries.. For employees covered by IWC Order 16-2001, the employer must provide an adequate supply of potable water, soap, or other suitable cleansing agent and single use towels for hand washing.
Under all of the IWC Orders except Orders 12, 14, 15, and 16-2001, if a meal period occurs on a shift beginning or ending at or between the hours of 10 p.m. and 6 a.m., facilities must be available for securing hot food and drink or for heating food or drink, and a suitable sheltered place must be provided in which to consume such food or drink. Under IWC Order 12-2001 for employees in the motion picture industry, hot meals and hot drinks must be provided for employees who are required to work after 12 o’clock midnight, except off-production employees regularly scheduled to work after midnight.

1. Q. What are the basic requirements for meal periods under California law?
Under California law (IWC Orders and Labor Code Section 512), employees must be provided with no less than a thirty-minute meal period when the work period is more than five hours (more than six hours for employees in the motion picture industry covered by IWC Order 12-2001).Unless the employee is relieved of all duty during the entire thirty-minute meal period and is free to leave the employer’s premises, the meal period shall be considered “on duty,” counted as hours worked, and paid for at the employee’s regular rate of pay. An “on duty” meal period will be permitted only when the nature of the work prevents the employee from being relieved of all duty and when by written agreement between the employer and employee an on-the-job meal period is agreed to. The test of whether the nature of the work prevents an employee from being relieved of all duty is an objective one. An employer and employee may not agree to an on-duty meal period unless, based on objective criteria, any employee would be prevented from being relieved of all duty based on the necessary job duties. Some examples of jobs that fit this category are a sole worker in a coffee kiosk, a sole worker in an all-night convenience store, and a security guard stationed alone at a remote site.
2. Q.
How does an employer satisfy its obligation to provide a meal period according to the law?
An employer is not required to ensure that no work is performed. However, an employer must do more than simply make a meal period “available.” In general, to satisfy its obligation to provide a meal period, an employer must actually relieve employees of all duty, relinquish control over their activities, permit them a reasonable opportunity to take an uninterrupted 30-minute break (in which they are free to come and go as they please), and must not impede or discourage employees from taking their meal period. (For employees in the health care industry covered by IWC Orders 4 or 5, however, minor exceptions exist as to the employee’s right to leave the employment premises during an off-duty meal period.) Employers may not undermine a formal policy of providing meal periods by pressuring employees to perform their duties in ways that omit breaks (e.g., through a scheduling policy that makes taking breaks extremely difficult). As the California Supreme Court has noted, “The wage orders and governing statute do not countenance an employer’s exerting coercion against the taking of, creating incentives to forego, or otherwise encouraging the skipping of legally protected breaks.” Which particular facts in any given case will satisfy the employer’s obligation to provide bona relief from all duty may vary from industry to industry. See Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004.
3. Q. What are the timing requirements for when any required first or second meal period must be provided during the workday?
A. In general, when an employee works for a work period of more than five hours, a meal period must be provided no later than the end of the employee’s fifth hour of work (in other words, no later than the start of the employee’s sixth hour of work). When an employee works for a period of more than 10 hours, a second meal period must be provided no later than the end of the employee’s tenth hour of work (in other words, no later than the start of the employee’s eleventh hour of work). The foregoing rules are subject to certain waivers by mutual consent (as explained above), and different rules apply to employees in the motion picture industry. See Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004.
4. Q. My employer is not allowing me to take a meal period. Is there anything I can do about this situation?
A. Yes, there is something you can do if you are covered by the meal period requirements of the law. If your employer fails to provide the required meal period, you are to be paid one hour of pay at your regular rate of compensation (this is referred to as meal period premium pay) for each workday that the meal period is not provided. If your employer fails to pay the additional one-hour’s pay, you may file a wage claim with the Division of Labor Standards Enforcement.
5. Q. If there is bona fide relief from all duty during a meal period and the employer relinquishes all control over the employee’s activities, but the employee then freely chooses to continue working, is the employer liable for meal period premium pay?
A. No, the employer would not be liable for meal period premium pay where there is bona fide relief from duty and relinquishment of employer control (and no discouragement or coercion from the employer against taking the meal period). However, in this circumstance, an employer that knows or has reason to know an employee is performing work during the meal period owes compensation to the employee for the time worked (including any overtime hours that have accrued as a result of working through the meal period). See Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004.
6. Q. Is it permissible if I choose to work through my meal period so that I can leave my job 30 minutes early?
A. No, working through your meal period does not entitle you to leave work early prior to your scheduled quitting time. In order for an “on duty” meal period to be permitted under the Industrial Welfare Commission Wage Orders, the nature of the work must actually prevent the employee from being relieved of all duty, and there must be a written agreement that an on-the-job paid meal period is agreed to. Additionally, the written agreement must also state that the employee may, in writing, revoke the agreement at any time.
7. Q. Can my employer require that I stay on its premises during my meal period?
A. Yes, your employer can require that you remain on its premises during your meal period, even if you are relieved of all work duties. However if that occurs, you are being denied your time for your own purposes and in effect remain under the employer’s control and thus, the meal period must be paid. Minor exceptions to this general rule exist under IWC Order 5-2001 regarding healthcare workers. Pursuant to the Industrial Welfare Commission Wage Orders, if you are required to eat on the premises, a suitable place for that purpose must be designated. “Suitable” means a sheltered place with facilities available for securing hot food and drink or for heating food or drink, and for consuming such food and drink.
8. Q. I regularly work an eight-hour shift. What can I do if my employer doesn’t provide me with a meal period?
A. You can either file a wage claim with the Division of Labor Standards Enforcement (the Labor Commissioner’s Office), or you can file a lawsuit in court against your employer to recover the premium of one additional hour of pay at your regular rate of compensation for each workday that the meal period is not provided.
9. Q. What is the applicable statute of limitations on filing a meal period claim?
A. In the case of Murphy v. Cole, the California Supreme Court held that the remedy for meal and rest period violations of “one additional hour of pay” under Labor Code section 226.7 is a wage subject to a three-year statute of limitations. Accordingly, a claim must be filed within three (3) years of the alleged meal period violation. See attached Division memoranda regarding the Court’s decision.
10. Q. What is the procedure that is followed after I file a wage claim?
A. After your claim is completed and filed with a local office of the Division of Labor Standards Enforcement (DLSE), it will be assigned to a Deputy Labor Commissioner who will determine, based upon the circumstances of the claim and information presented, how best to proceed. Initial action taken regarding the claim can be referral to a conference or hearing, or dismissal of the claim.
If the decision is to hold a conference, the parties will be notified by mail of the date, time and place of the conference. The purpose of the conference is to determine the validity of the claim, and to see if the claim can be resolved without a hearing. If the claim is not resolved at the conference, the next step usually is to refer the matter to a hearing or dismiss it for lack of evidence.
At the hearing the parties and witnesses testify under oath, and the proceeding is recorded. After the hearing, an Order, Decision, or Award (ODA) of the Labor Commissioner will be served on the parties.
Either party may appeal the ODA to a civil court of competent jurisdiction. The court will set the matter for trial, with each party having the opportunity to present evidence and witnesses. The evidence and testimony presented at the Labor Commissioner’s hearing will not be the basis for the court’s decision. In the case of an appeal by the employer, DLSE may represent an employee who is financially unable to afford counsel in the court proceeding.
See the Policies and Procedures of Wage Claim Processing pamphlet for more detail on the wage claim procedure.
11. Q. What can I do if I prevail at the hearing and the employer doesn’t pay or appeal the Order, Decision, or Award?
A. When the Order, Decision, or Award (ODA) is in the employee’s favor and there is no appeal, and the employer does not pay the ODA, the Division of Labor Standards Enforcement (DLSE) will have the court enter the ODA as a judgment against the employer. This judgment has the same force and effect as any other money judgment entered by the court. Consequently, you may either try to collect the judgment yourself or you can assign it to DLSE.
12. Q. What can I do if my employer retaliates against me because I asked him why we don’t get a meal period?
A. If your employer discriminates or retaliates against you in any manner whatsoever, for example, he discharges you because you ask about not getting a meal period, object to what you believe to be an illegal practice, or because you file a claim or threaten to file a claim with the Labor Commissioner, you can file a discrimination/retaliation complaint with the Labor Commissioner’s Office. In the alternative, you can file a lawsuit in court against your employer.

Rest Periods
Rest Periods also warrant a Frequently Asked Questions page on the Department’s website [http://www.dir.ca.gov/dlse/FAQ_RestPeriods.htm]:
In California, the Industrial Welfare Commission Wage Orders require that employers must authorize and permit nonexempt employees to take a rest period that must, insofar as practicable, be taken in the middle of each work period. The rest period is based on the total hours worked daily and must be at the minimum rate of a net ten consecutive minutes for each four hour work period, or major fraction thereof. The Division of Labor Standards Enforcement (DLSE) considers anything more than two hours to be a “major fraction” of four.” A rest period is not required for employees whose total daily work time is less than three and one-half hours. The rest period is counted as time worked and therefore, the employer must pay for such periods. Since employees are paid for their rest periods, they can be required to remain on the employer’s premises during such periods. With respect to the taking of rest periods, an exception exists under IWC Order 5-2001, Section 12(C) for certain employees of 24-hour residential care facilities who may have their rest period limited under certain circumstances. Another exception to the general rest period requirement is for swimmers, dancers, skaters, and other performers engaged in strenuous physical activities who shall have additional interim rest periods during periods of actual rehearsal or shooting. IWC Order 12-2001, Section 12 (C).
For employees in certain on-site occupations in the construction, drilling, logging and mining industries, the employer may stagger the rest periods to avoid interruption in the flow of work and to maintain continuous operations, or schedule rest periods to coincide with breaks in the flow of work that occur in the course of the workday. IWC Order 16-2001, Section 11(A) Additionally, for these employees rest periods need not be authorized in limited circumstances when the disruption of continuous operations would jeopardize the product or process of the work. However, under such circumstances, the employer must make-up the missed rest period within the same workday or compensate the employee for the missed ten minutes of rest time at his or her regular rate of pay within the same pay period. IWC Order 16-2001, Section 11(B) Under Order 16-2001, rest periods must take place at employer designated areas which may include or be limited to the employees immediate work area. See Question No. 9, below, for information on how to file a claim to require your employer to provide time and a place to express milk.
Under IWC Order 10-2001, Section12(C), a crew member employed on a commercial passenger fishing boat who is on an overnight trip shall receive no less than eight hours off-duty time during each 24-hour period. This eight-hour period is in addition to the meal and rest periods required under the Wage Order.
Pursuant to Labor Code Section 1030 every employer, including the state and any political subdivision, must provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee’s infant child. The break time shall, if possible, run concurrently with any break time already provided to the employee. Break time for an employee that does not run concurrently with the rest time authorized for the employee by the applicable wage order of the Industrial Welfare Commission need not be paid. The employer shall make reasonable efforts to provide the employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee’s work area, for the employee to express milk in private. The room or location may include the place where the employee normally works if it otherwise meets the requirements of this section. An employer is not required to provide an employee break time for purposes of lactating if to do so would seriously disrupt the operations of the employer. Lactation Accommodation-Labor Code translation-Spanish
If an employer fails to provide an employee a rest period in accordance with an applicable IWC Order, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of pay for each workday that the rest period is not provided. Labor Code Section 226.7 Thus, if an employer does not provide all of the rest periods required in a workday, the employee is entitled to one additional hour of pay for that workday, not one additional hour of pay for each rest period that was not provided during that workday.
The rest period is defined as a “net” ten minutes, which means that the rest period begins when the employee reaches an area away from the work area that is appropriate for rest. Employers are required to provide suitable resting facilities that shall be available for employees during working hours in an area separate from the toilet rooms.

1. Q. What are the basic requirements for rest periods under California law?
A. Employers of California employees covered by the rest period provisions of the Industrial Welfare Commission Wage Orders must authorize and permit a net 10-minute paid rest period for every four hours worked or major fraction thereof. Insofar as is practicable, the rest period should be in the middle of the work period. If an employer does not authorize or permit a rest period, the employer shall pay the employee one hour of pay at the employee’s regular rate of pay for each workday that the rest period is not provided.
2. Q. Must the rest periods always be in the middle of each four-hour work period?
A. Rest breaks must be given as close to the middle of the four-hour work period as is practicable. If the nature or circumstances of the work prevent the employer from giving the break at the preferred time, the employee must still receive the required break, but may take it at another point in the work period.
3. Q. My employer is not allowing me to take a rest period. Is there anything I can do about this situation?
A. Yes, there is something you can do if you are an employee covered by the rest period requirements of the Industrial Welfare Commission Wage Orders. If your employer fails to authorize and permit the required rest period(s), you are to be paid one hour of pay at your regular rate of compensation for each workday that the rest period is not authorized or permitted. If your employer fails to pay the additional one-hour’s pay, you may file a wage claim with the Division of Labor Standards Enforcement.
4. Q. Is it permissible if I choose to work through both of my rest periods so that I can leave my job 20 minutes early?
A. No, working through your rest period does not entitle you to leave work early or arrive late.
5. Q. Can my employer require that I stay on the work premises during my rest period?
A. Yes, your employer can require that you stay on the premises during your rest break. Since you are being compensated for the time during your rest period, your employer can require that you remain on its premises. And under most situations, the employer is required to provide suitable resting facilities that shall be available for employees during working hours in an area separate from the toilet rooms.
6. Q. Can I have additional rest breaks if I am a smoker?
A. No, under California law rest period time is based on the total hours worked daily, and only one ten-minute rest period need be authorized for every four hours of work or major fraction thereof.
7. Q. When I need to use the toilet facilities during my work period does that count as my ten minute rest break?
A. No, the 10-minute rest period is not designed to be exclusively for use of toilet facilities as evidenced by the fact that the Industrial Welfare Commission requires suitable resting facilities be in an area “separate from toilet rooms.” The intent of the Industrial Welfare Commission regarding rest periods is clear: the rest period is not to be confused with or limited to breaks taken by employees to use toilet facilities. This conclusion is required by a reading of the provisions of IWC Orders, Section 12, Rest Periods, in conjunction with the provisions of Section 13(B), Change Rooms And Resting Facilities, which requires that “Suitable resting facilities shall be provided in an area separate from the toilet rooms and shall be available to employees during work hours.”

Allowing employees to use toilet facilities during working hours does not meet the employer’s obligation to provide rest periods as required by the IWC Orders. This is not to say, of course, that employers do not have the right to reasonably limit the amount of time an employee may be absent from his or her work station; and, it does not indicate that an employee who chooses to use the toilet facilities while on an authorized break may extend the break time by doing so. DLSE policy simply prohibits an employer from requiring that employees count any separate use of toilet facilities as a rest period.
8. Q. I am regularly scheduled to work an eight-hour shift. What can I do if my employer doesn’t allow me to take a rest break?
A. You can either file a wage claim (the Labor Commissioner’s Office), or you can file a lawsuit in court against your employer to recover the the premium of one additional hour of pay at your regular rate of compensation for each workday that the rest period is not provided.
9. Q. What happens if my employer does not provide me with the opportunity to take a break for lactation purposes?
A. If you feel your employer is not providing you with adequate break time and/or a place to express milk as provided for in Labor Code section 1030, you may file a report/claim with the DLSE Bureau of Field Enforcement (BOFE) at the BOFE office nearest your place of employment. See http://www.dir.ca.gov/dlse/HowToReportViolationtoBOFE.htm.
The DLSE may, after an inspection, issue to an employer who violates any provision of this chapter, a civil citation ($100.00 for each violation) that may be contested in accordance with the procedure outlined in Labor Code Section 1197.1 (Labor Code Section 1033).
In addition, any employee who is a victim of retaliation for either asserting a right to lactation accommodation or for complaining to the DLSE about the failure of an employer to provide this accommodation may file a retaliation claim with DLSE pursuant to Labor Code Section 98.7 .
10. Q. What is the applicable statute of limitations on filing a rest period claim?
A. In the case of Murphy v. Cole, the California Supreme Court held that the remedy for meal and rest period violations of “one additional hour of pay” under Labor Code section 226.7 is a wage subject to a three-year statute of limitations. Accordingly, a claim must be filed within three (3) years of the alleged rest period violation. See attached Division memoranda regarding the Court’s decision.
11. Q. What is the procedure that is followed after I file a wage claim?
A. After your claim is completed and filed with a local office of the Division of Labor Standards Enforcement (DLSE), it will be assigned to a Deputy Labor Commissioner who will determine, based upon the circumstances of the claim and information presented, how best to proceed. Initial action taken regarding the claim can be referral to a conference or hearing, or dismissal of the claim.
If the decision is to hold a conference, the parties will be notified by mail of the date, time and place of the conference. The purpose of the conference is to determine the validity of the claim, and to see if the claim can be resolved without a hearing. If the claim is not resolved at the conference, the next step usually is to refer the matter to a hearing or dismiss it for lack of evidence.
At the hearing the parties and witnesses testify under oath, and the proceeding is recorded. After the hearing, an Order, Decision, or Award (ODA) of the Labor Commissioner will be served on the parties.
Either party may appeal the ODA to a civil court of competent jurisdiction. The court will set the matter for trial, with each party having the opportunity to present evidence and witnesses. The evidence and testimony presented at the Labor Commissioner’s hearing will not be the basis for the court’s decision. In the case of an appeal by the employer, DLSE may represent an employee who is financially unable to afford counsel in the court proceeding.
See the Policies and Procedures of Wage Claim Processing pamphlet for more detail on the wage claim procedure.
12. Q. What can I do if I prevail at the hearing and the employer doesn’t pay or appeal the Order, Decision, or Award?
A. When the Order, Decision, or Award (ODA) is in the employee’s favor and there is no appeal, and the employer does not pay the ODA, the Division of Labor Standards Enforcement (DLSE) will have the court enter the ODA as a judgment against the employer. This judgment has the same force and effect as any other money judgment entered by the court. Consequently, you may either try to collect the judgment yourself or you can assign it to DLSE.
13. Q. What can I do if my employer retaliates against me because I objected to the fact that he doesn’t provide employees with rest breaks?
A. If your employer discriminates or retaliates against you in any manner whatsoever, for example, he discharges you because you object to the fact that he’s not providing employees with rest breaks, or because you file a claim or threaten to file a claim with the Labor Commissioner, you can file a discrimination/retaliation complaint with the Labor Commissioner’s Office. In the alternative, you can file a lawsuit in court against your employer.

One new question that has raised is ugly head is whether a piece rate worker must be paid minimum wage or his/her average piece rate wages for rest and meal breaks. The California Labor Commissioner believes that the proper payment is the employee’s average piece rate; however, minutes of the Industrial Welfare Commission establish the IWC does not interpret the IWC orders in that fashion. In short, the Labor Commissioner believes that “regular rate of pay” means just that – the employee’s average piece rate earnings – the California state and federal Courts, however, have attempted to clarify the pay requirements for works paid on a piece rate basis, but unfortunately have arrived at different conclusion, although there is no question that the employee must be paid at least the minimum wage for breaks.
As expected, this lack of clarity has given fodder to Plaintiffs’ attorneys who have filed numerous class action lawsuits on behalf of employees who were allegedly paid incorrectly.
Similarly under Minimum Wage and Overtime, the Department of Industrial Relations Website states under Frequently Asked Questions:
Minimum Wage
Although there are some exceptions, almost all employees in California must be paid the minimum wage as required by state law. Effective July 1, 2014, the minimum wage in California is $9.00 per hour. Effective January 1, 2016, the minimum wage in California is $10.00 per hour. There are some employees who are exempt from the minimum wage law, such as outside salespersons, individuals who are the parent, spouse, or child of the employer, and apprentices regularly indentured under the State Division of Apprenticeship Standards.
Minimum Wage Order (MW-2014)
There is an exception for learners, regardless of age, who may be paid not less than 85% of the minimum wage rounded to the nearest nickel during their first 160 hours of employment in occupations in which they have no previous similar or related experience.
There are also exceptions for employees who are mentally or physically disabled, or both, and for nonprofit organizations such as sheltered workshops or rehabilitation facilities that employ disabled workers. Such individuals and organizations may be issued a special license by the Division of Labor Standards Enforcement authorizing employment at a wage less than the legal minimum wage. Labor Code Sections 1191 and 1191.5

1. Q. What is the minimum wage?
A. Effective January 1, 2008, the minimum wage in California is $8.00 per hour. It will increase to $9.00 per hour effective July 1, 2014, and to $10.00 per hour effective January 1, 2016.
For sheepherders, however, effective July 1, 2002, the minimum wage was set at $1,200.00 per month. On January 1, 2007, this wage increased to a minimum monthly salary of $1,333.20, and on January 1, 2008, it increased again to a minimum monthly salary of $1,422.52. Effective July 1, 2014, the minimum monthly salary for sheepherders will be $1600.34. Effective January 1, 2016, the minimum monthly salary for sheepherders will be $1777.98. Wages paid to sheepherders may not be offset by meals or lodging provided by the employer. Instead, there are provisions in IWC Order 14-2007, Sections 10(F), (G) and (H) that apply to sheepherders with respect to monthly meal and lodging benefits required to be provided by the employer.
2. Q. What is the difference between the state and federal minimum wage?
A. Most employers in California are subject to both the federal and state minimum wage laws. The effect of this dual coverage is that when there are conflicting requirements in the laws, the employer must follow the stricter standard; that is, the one that is the most beneficial to the employee. Thus, since California’s current law requires a higher minimum wage rate than does the federal law, all employers in California who are subject to both laws must pay the state minimum wage rate unless their employees are exempt under California law.
3. Q. May an employee agree to work for less than the minimum wage?
A. No. The minimum wage is an obligation of the employer and cannot be waived by any agreement, including collective bargaining agreements. Any remedial legislation written for the protection of employees may not be violated by agreement between the employer and employee. Civil Code Sections 1668 and 3513
4. Q. Is the minimum wage the same for both adult and minor employees?
A. Yes. There is no distinction made between adults and minors when it comes to payment of the minimum wage.
5. Q. I work in a restaurant as a waitperson. Can my employer use my tips as a credit toward its obligation to pay me the minimum wage?
A. No. An employer may not use an employee’s tips as a credit toward its obligation to pay the minimum wage.
6. Q. What can I do if my employer doesn’t pay me at least the minimum wage?
A. You can either file a wage claim with the Division of Labor Standards Enforcement (the Labor Commissioner’s Office), or file a lawsuit in court against your employer to recover the lost wages. Additionally, if you no longer work for this employer, you can make a claim for the waiting time penalty pursuant to Labor Code Section 203.
7. Q. What is the procedure that is followed after I file a wage claim?
A. After your claim is completed and filed with a local office of the Division of Labor Standards Enforcement (DLSE), it will be assigned to a Deputy Labor Commissioner who will determine, based upon the circumstances of the claim and information presented, how best to proceed. Initial action taken regarding the claim can be referral to a conference or hearing, or dismissal of the claim.
If the decision is to hold a conference, the parties will be notified by mail of the date, time and place of the conference. The purpose of the conference is to determine the validity of the claim, and to see if the claim can be resolved without a hearing. If the claim is not resolved at the conference, the next step usually is to refer the matter to a hearing or dismiss it for lack of evidence.
At the hearing the parties and witnesses testify under oath, and the proceeding is recorded. After the hearing, an Order, Decision, or Award (ODA) of the Labor Commissioner will be served on the parties.
Either party may appeal the ODA to a civil court of competent jurisdiction. The court will set the matter for trial, with each party having the opportunity to present evidence and witnesses. The evidence and testimony presented at the Labor Commissioner’s hearing will not be the basis for the court’s decision. In the case of an appeal by the employer, DLSE may represent an employee who is financially unable to afford counsel in the court proceeding.
See the Policies and Procedures of Wage Claim Processing pamphlet for more detail on the wage claim procedure.
8. Q. What can I do if I prevail at the hearing and the employer doesn’t pay or appeal the Order, Decision, or Award?
A. When the Order, Decision, or Award (ODA) is in the employee’s favor and there is no appeal, and the employer does not pay the ODA, the Division of Labor Standards Enforcement (DLSE) will have the court enter the ODA as a judgment against the employer. This judgment has the same force and effect as any other money judgment entered by the court. Consequently, you may either try to collect the judgment yourself or you can assign it to DLSE.
9. Q. What can I do if my employer retaliates against me because I questioned him about not being paid the minimum wage?
A. If your employer discriminates or retaliates against you in any manner whatsoever, for example, he discharges you because you asked him why you weren’t being paid the minimum wage, or because you file a claim or threaten to file a claim with the Labor Commissioner, you can file a discrimination/retaliation complaint with the Labor Commissioner’s Office. In the alternative, you can file a lawsuit in court against your employer.

Of course, just to make it more difficult, several cities have enacted their own minimum wage/living wage laws, and the U.S. Department of Labor (“DOL”) also sets a minimum wage for the United States; however, an employer must pay the highest rate provided in the state or city where it is located. The DOL’s website is at http://www.dol.gov/whd. It states in Fact Sheet #23 relating to Overtime under the Fair Labor Standards Act:

Fact Sheet #23: Overtime Pay Requirements of the FLSA
This fact sheet provides general information concerning the application of the
overtime pay provisions of the FLSA.

Characteristics
An employer who requires or permits an employee to work overtime is generally required to pay the employee premium pay for such overtime work.

Requirements

Unless specifically exempted, employees covered by the Act must receive overtime pay for hours worked in excess of 40 in a workweek at a rate not less than time and one-half their regular rates of pay. There is no limit in the Act on the number of hours employees aged 16 and older may work in any workweek. The Act does not require overtime pay for work on Saturdays, Sundays, holidays, or regular days of rest, as such.

The Act applies on a workweek basis. An employee’s workweek is a fixed and regularly recurring period of 168 hours — seven consecutive 24-hour periods. It need not coincide with the calendar week, but may begin on any day and at any hour of the day. Different workweeks may be established for different employees or groups of employees. Averaging of hours over two or more weeks is not permitted. Normally, overtime pay earned in a particular workweek must be paid on the regular pay day for the pay period in which the wages were earned.
The regular rate of pay cannot be less than the minimum wage. The regular rate includes all remuneration for employment except certain payments excluded by the Act itself. Payments which are not part of the regular rate include pay for expenses incurred on the employer’s behalf, premium payments for overtime work or the true premiums paid for work on Saturdays, Sundays, and holidays, discretionary bonuses, gifts and payments in the nature of gifts on special occasions, and payments for occasional periods when no work is performed due to vacation, holidays, or illness.

Earnings may be determined on a piece-rate, salary, commission, or some other basis, but in all such cases the overtime pay due must be computed on the basis of the average hourly rate derived from such earnings. This is calculated by dividing the total pay for employment (except for the statutory exclusions noted above) in any workweek by the total number of hours actually worked.

Where an employee in a single workweek works at two or more different types of work for which different straight-time rates have been established, the regular rate for that week is the weighted average of such rates. That is, the earnings from all such rates are added together and this total is then divided by the total number of hours worked at all jobs. In addition, section 7(g)(2) of the FLSA allows, under specified conditions, the computation of overtime pay based on one and one-half times the hourly rate in effect when the overtime work is performed. The requirements for computing overtime pay pursuant to section 7(g)(2) are prescribed in 29 CFR 778.415 through 778.421.

Where non-cash payments are made to employees in the form of goods or facilities, the reasonable cost to the employer or fair value of such goods or facilities must be included in the regular rate.

Typical Problems

Fixed Sum for Varying Amounts of Overtime: A lump sum paid for work performed during overtime hours without regard to the number of overtime hours worked does not qualify as an overtime premium even though the amount of money paid is equal to or greater than the sum owed on a per-hour basis. For example, no part of a flat sum of $180 to employees who work overtime on Sunday will qualify as an overtime premium, even though the employees’ straight-time rate is $12.00 an hour and the employees always work less than 10 hours on Sunday. Similarly, where an agreement provides for 6 hours pay at $13.00 an hour regardless of the time actually spent for work on a job performed during overtime hours, the entire $78.00 must be included in determining the employees’ regular rate.

Salary for Workweek Exceeding 40 Hours: A fixed salary for a regular workweek longer than 40 hours does not discharge FLSA statutory obligations. For example, an employee may be hired to work a 45 hour workweek for a weekly salary of $405. In this instance the regular rate is obtained by dividing the $405 straight-time salary by 45 hours, resulting in a regular rate of $9.00. The employee is then due additional overtime computed by multiplying the 5 overtime hours by one-half the regular rate of pay ($4.50 x 5 = $22.50).

Overtime Pay May Not Be Waived: The overtime requirement may not be waived by agreement between the employer and employees. An agreement that only 8 hours a day or only 40 hours a week will be counted as working time also fails the test of FLSA compliance. An announcement by the employer that no overtime work will be permitted, or that overtime work will not be paid for unless authorized in advance, also will not impair the employee’s right to compensation for compensable overtime hours that are worked.

Where to Obtain Additional Information
For additional information, visit our Wage and Hour Division Website: http://www.wagehour.dol.gov and/or call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4USWAGE (1-866-487-9243).
This publication is for general information and is not to be considered in the same light as official statements of position contained in the regulations. U.S. Department of Labor Frances Perkins Building 200 Constitution Avenue, NW Washington, DC 20210 1-866-4-USWAGE
TTY: 1-866-487-9243 Contact Us

The U.S. Department of Labor issued the following questions and answers concerning the federal minimum wage, which is clearly much less than most states’ minimum wage.
Wage and Hour Division (WHD)
Questions and Answers About the Minimum Wage
What is the federal minimum wage?
Under the Fair Labor Standards Act (FLSA), the federal minimum wage for covered nonexempt employees is $7.25 per hour effective July 24, 2009. Many states also have minimum wage laws. Where an employee is subject to both the state and federal minimum wage laws, the employee is entitled to the higher minimum wage rate.
Various minimum wage exceptions apply under specific circumstances to workers with disabilities, full-time students, youth under age 20 in their first 90 consecutive calendar days of employment, tipped employees and student-learners.
What is the minimum wage for workers who receive tips?
An employer may pay a tipped employee not less than $2.13 an hour in direct wages if that amount plus the tips received equal at least the federal minimum wage, the employee retains all tips and the employee customarily and regularly receives more than $30 a month in tips. If an employee’s tips combined with the employer’s direct wages of at least $2.13 an hour do not equal the federal minimum hourly wage, the employer must make up the difference.
Some states have minimum wage laws specific to tipped employees. When an employee is subject to both the federal and state wage laws, the employee is entitled to the provisions of each law which provide the greater benefits.
Must young workers be paid the minimum wage?
A minimum wage of $4.25 per hour applies to young workers under the age of 20 during their first 90 consecutive calendar days of employment with an employer, as long as their work does not displace other workers. After 90 consecutive days of employment or the employee reaches 20 years of age, whichever comes first, the employee must receive a minimum wage of $7.25 per hour effective July 24, 2009.
Other programs that allow for payment of less than the full federal minimum wage apply to workers with disabilities, full-time students, and student-learners employed pursuant to sub-minimum wage certificates. These programs are not limited to the employment of young workers.
What minimum wage exceptions apply to full-time students?
The Full-time Student Program is for full-time students employed in retail or service stores, agriculture, or colleges and universities. The employer that hires students can obtain a certificate from the Department of Labor which allows the student to be paid not less than 85% of the minimum wage. The certificate also limits the hours that the student may work to 8 hours in a day and no more than 20 hours a week when school is in session and 40 hours when school is out, and requires the employer to follow all child labor laws. Once students graduate or leave school for good, they must be paid $7.25 per hour effective July 24, 2009.
There are some limitations on the use of the full-time student program. For information on the limitations or to obtain a certificate, contact the Department of Labor’s Wage and Hour National Certification Team at 230 South Dearborn Street, Room 514, Chicago, Illinois 60604, telephone: 312-596-7195.
What minimum wage exceptions apply to student learners?
This program is for high school students at least 16 years old who are enrolled in vocational education (shop courses). The employer that hires the student can obtain a certificate from the Department of Labor which allows the student to be paid not less than 75% of the minimum wage, for as long as the student is enrolled in the vocational education program.
Employers interested in applying for a student learner certificate should contact the Department of Labor’s Wage and Hour National Certification Team at 230 South Dearborn Street, Room 514, Chicago, Illinois 60604, telephone: 312-596-7195.
Other programs that allow for payment of less than the full federal minimum wage apply to disabled workers and full-time students employed pursuant to sub-minimum wage certificates.
How often does the federal minimum wage increase?
The minimum wage does not increase automatically. Congress must pass a bill which the President signs into law in order for the minimum wage to go up.
Who makes sure workers are paid the minimum wage?
The Wage and Hour Division of the U.S. Department of Labor is responsible for enforcing the minimum wage. Using both enforcement and public education efforts, the Wage and Hour Division strives to ensure that workers are paid the minimum wage.
The Wage and Hour Division has offices throughout the country. The phone numbers and addresses for these offices may be found on the Internet or in the federal government “blue pages” section of the telephone book under “Labor Department.”
To whom does the minimum wage apply?
The minimum wage law (the FLSA) applies to employees of enterprises that have annual gross volume of sales or business done of at least $500,000. It also applies to employees of smaller firms if the employees are engaged in interstate commerce or in the production of goods for commerce, such as employees who work in transportation or communications or who regularly use the mails or telephones for interstate communications. Other persons, such as guards, janitors, and maintenance employees who perform duties which are closely related and directly essential to such interstate activities are also covered by the FLSA. It also applies to employees of federal, state or local government agencies, hospitals and schools, and it generally applies to domestic workers.
The FLSA contains a number of exemptions from the minimum wage that may apply to some workers.
The Wage and Hour Division has a Handy Reference Guide to the Fair Labor Standards Act that explains how the law applies. Call 1-866-4-USWAGE (1-866-487-9243) for a printed copy of the guide.
Minimum Wage/Living Wage regulated by cities Oakland/Alameda County, California/San Francisco, California Minimum Wage:
Oakland – Living Wage
Living Wage Calculation for Oakland, Alameda County, California
The living wage shown is the hourly rate that an individual must earn to support their family, if they are the sole provider and are working full-time (2080 hours per year). The state minimum wage is the same for all individuals, regardless of how many dependents they may have. The poverty rate is typically quoted as gross annual income. We have converted it to an hourly wage for the sake of comparison. Wages that are less than the living wage are shown in red.
Hourly Wages 1 Adult 1 Adult, 1 Child 1 Adult, 2 Children 1 Adult, 3 Children 2 Adults 2 Adults, 1 Child 2 Adults, 2 Children 2 Adults, 3 Children
Living Wage $11.51 $23.22 $26.83 $33.67 $17.38 $21.30 $22.64 $27.67
Poverty Wage $5.21 $7.00 $8.80 $10.60 $7.00 $8.80 $10.60 $12.40
Minimum Wage $8.00 $8.00 $8.00 $8.00 $8.00 $8.00 $8.00 $8.00

San Francisco Minimum Wage Ordinance Chapter 12R Administrative Code Frequently Asked Questions:

1. Q: Where can I find the current San Francisco minimum wage?

A: The current San Francisco minimum wage is posted at
www.sfgov.org/olse/mwo

You can also call the Office of Labor Standards Enforcement (OLSE) at (415) 554-6292. The San Francisco minimum wage is adjusted once per year. Every January 1, the San Francisco minimum wage increases by an amount corresponding to the prior year’s increase, if any, in the Consumer Price Index for urban wage earners and clerical workers for the San Francisco-Oakland-San Jose, CA metropolitan statistical area. The City uses the August-to-August change in the Consumer Price Index to calculate the annual increase, if any, in the San Francisco minimum wage rate.
2. Q: Does the San Francisco minimum wage apply to all employers that have employees who perform work in San Francisco?

A: Yes! All employers, regardless of where they are located, must pay their employees who perform work in San Francisco the San Francisco minimum wage.

3. Q: Does the San Francisco minimum wage apply to full time and part time employees?

A: Yes! Any person who performs at least two hours of work in a particular week for an employer within the geographic boundaries of the City is entitled to be paid the San Francisco minimum wage.

4. Q: Is the San Francisco minimum wage the same for both adult and minor employees?

A: Yes!

5. Q: Does the San Francisco minimum wage cover employees who work in San Francisco but are not City residents?

A: Yes! Any person who performs at least two hours of work in a particular week for an employer within the geographic boundaries of the City is entitled to be paid the San Francisco minimum wage.

6.Q : What is included in the definition of “wages” under the San Francisco minimum wage?

A: Wages include compensation that is received in the form of salary, hourly pay, piece rate, commissions, and non-discretionary performance bonuses. In addition, the City also permits employers to offset a portion of the San Francisco minimum wage for housing and meal costs. The City offsets for housing and meal costs are the same as those offsets available under state minimum wage law. The offsets will only be recognized if there is a prior voluntary written agreement between the employer an
d employee. Wages do not include tips.

7. Q: Does the San Francisco Minimum Wage Ordinance protect undocumented workers?

A: Yes. All workers in San Francisco – whether or not they are legally authorized to work in the United States – are protected. The City’s Office of Labor Standards Enforcement will process a wage claim without regard to a worker’s immigrant status. Workers filing a claim with City will not be questioned about their immigration status.

8. Q: What is the difference between the Federal, State and San Francisco minimum wage laws?

A: San Francisco employers are subject to the Federal, State and San Francisco minimum wage laws. When there are conflicting requirements in the laws, the employer must follow the stricter standard; that is, the one that is most beneficial to the employee. Thus, since San Francisco’s current law requires a higher minimum wage rate than does the state and
federal law, all employers that have employees who perform work in San Francisco who are subject to the laws must pay the City’s minimum wage rate unless their employees are exempt under California law.

9. Q: Do I need to pay the San Francisco minimum wage to individuals exempt from the state minimum wage?

A: No! The Minimum Wage Ordinance section 12R3 requires that employers pay the San Francisco minimum wage to employees who are entitled to receive the state minimum wage. Certain categories of workers, including independent contractors, learners and certain disabled workers, are not entitled to the state minimum wage. For further information on these categories of workers, please consult the Industrial Welfare Commission wage orders (http://www.dir.ca.gov/IWC/iwc.html) and/or the Division of Labor Standards Enforcement (http://www.dir.ca.gov/DLSE/dlse.html).

10. Q: May an employee agree to work for less than the San Francisco minimum wage?

A: The San Francisco minimum wage is an obligation of the employer and cannot be waived by an employee except through a bona fide collective bargaining agreement.

11. Q: What can I do if my employer doesn’t pay me at least the San Francisco minimum wage?

A: You can either file a wage claim with the City’s Office of Labor Standards Enforcement or file a lawsuit in court against your employer. If an employee chooses to file a claim alleging the non-payment of the San Francisco minimum wage by his or her employer, the employee must file a claim either by mail or in person.

12. Q: What can I do if my employer retaliates against me because I question her about not being paid the San Francisco minimum wage?

A: Under this ordinance, it is unlawful for an employer to retaliate against employees who assert their right to receive the San Francisco minimum wage. There is a rebuttable presumption of retaliation if any adverse action is taken against a person within ninety days of the person exercising his or her rights protected under the law. If you are subjected to retaliation, you can either file a claim with the City’s Office of Labor Standards Enforcement or file a lawsuit in court against your employer.

13. Q: What wage must an employer pay to a salaried employee who is exempt from overtime under state law? Must the employer pay twice the state minimum wage rate or twice the San Francisco minimum wage rate?

A: The City’s Office of Labor Standards Enforcement (OLSE) can only advise employers how to comply with the San Francisco Minimum Wage Ordinance. The OLSE cannot advise employers how to comply with state law, including state law governing pay for salaried employees exempt from overtime. Please contact the California State Labor Commissioner for information on compliance with state law.

14. Q: I work in a restaurant as a waitperson. Can my employer use my tips as a credit toward its obligation to pay me the San Francisco minimum wage?

A: No! An employer may not use an employee’s tips as a credit toward its obligation to pay the San Francisco minimum wage.

15. Q: Does the Minimum Wage Ordinance apply to employees covered by an existing collective bargaining agreement?

A: Yes. The Minimum Wage Ordinance (MWO) is a minimum labor standard and a law of general application that applies to all employees covered by the ordinance, whether represented by a union or not. However, under San Francisco Administrative Code Section 12R.8, the provisions of MWO may be waived by a collective bargaining agreement. The MWO requires that the waiver must be in a bona fide collective bargaining agreement, must be express, and must be in clear and unambiguous terms. The parties to a collective bargaining agreement are free to negotiate any language they desire, and the department will not interfere with or participate in the negotiation of such language. There may be many different ways to accomplish an effective waiver in a collective bargaining agreement.

(One approach, that the department would recognize for purposes of enforcement, is as follows: “Waiver of San Francisco Minimum Wage Ordinance: To the fullest extent permitted, this agreement shall operate to waive any provisions of the San Francisco Minimum Wage Ordinance, San Francisco Administrative Code Chapter 12R, and shall supersede and be considered to have fulfilled all requirements of said Ordinance as presently written, and or amended during the life of this agreement.”)

16. Q: May commissions be counted toward payment of the San Francisco minimum wage?

A: Yes! Commissions may be counted toward payment of the San Francisco minimum wage. If the commissions earned and paid, together with their compensation paid to an employee, are equivalent to or greater than the current San Francisco minimum wage, then the City’s minimum wage requirement is satisfied. For each pay period, employers must pay the employee an amount that equals or exceeds the hours that the employee worked multiplied by the current San Francisco minimum wage. If the employee’s commissions for the pay period, together with other compensation earned, are less than that amount, employers must pay the difference. Whether the employer may thereafter recover any amounts based on commissions that the employee earns in a later pay period, or which are paid at a later date, depends on whether the employer and employee have an enforceable written agreement.

17. Q: My business is family run business. Do I need to pay my parent, spouse, or child the San Francisco minimum wage?

A: No. Consistent with California Labor Code, Sec 335

2, (a) Individuals who are the parents, spouses or children of the employers are not covered by the San Francisco minimum wage. (Domestic partners would also be excluded under the San Francisco Minimum Wage Ordinance.) However, an employer must pay the required San Francisco minimum wage rate to any other person who performs more than two hours of work in a week and qualifies as an employee entitled to payment of the minimum wage from any employer under the California minimum wage law, as provided under Section 1197 of the California Labor Code and wage orders published by the California Industrial Welfare Commission.

Please E-mail further questions to
MWO@sfgov.org
Or call (415) 554-6292
www.sfgov.org/olse/mwo

More specifically, San Francisco voters overwhelmingly approved a ballot measure to gradually raised the city’s minimum wage from $10.74 currently. The decision follows Seattle’s approval in June to raise its minimum wage to $15, the highest level in the nation.

Under the new law, wages will rise to $11.05 on Jan.1, then $12.25 in May before increasing every year until they reach $15 in 2018. After that, increases will be tied to inflation in the Bay Area.
San Francisco also requires that an employer post poster which reflect the minimum wage.

Voters overwhelmingly approved a ballot measure to gradually raise the city’s minimum wage from $10.74 currently.
The decision follows Seattle’s approval in June to raise its minimum wage to $15, the highest level in the nation.
Under the new law, wages will rise to $11.05 on Jan.1, then $12.25 in May before increasing every year until they reach $15 in 2018. After that, increases will be tied to inflation in the Bay Area.
Effective Date Minimum Wage Rate
1/1/2015 $11.05
5/1/2015 $12.25
7/1/2016 $13.00
7/1/2017 $14.00
7/1/2018 $15.00
July 1st Each Following Year CPI Increase

The move by San Francisco is part of a growing push in cities and states across the nation to give workers a so-called living wage.
Alaska, Arkansas, Nebraska and South Dakota all recently approved proposals to raise the minimum wage. Those states join 12 others and Washington, D.C., all of which have moved in the past two years to raise their state minimums.
To put this in perspective, as noted above, the California minimum wage is/was: $8.00 per hour beginning January 1, 2014, $9.00 per hour beginning July 1, 2014, and $10.00 per hour beginning January 1, 2016.

Arbitration Agreements with your employees:
Most employment attorneys suggest that employers enter into an arbitration agreement with their employees, because arbitrations are usually less expensive that a full blown trial, with all of the discovery, etc., that accompanies such litigation.
However, arbitration agreements must be very carefully crafted to avoid arguments that the agreement is substantively and procedurally unconscionable. For example, an arbitration agreement supposedly cannot waive certain claims (e.g., class action and representative action claims); however, the United States Supreme Court in the 2011 AT&T Mobility LLC v. Concepcion opinion declared that the Federal Arbitration Act preempts all state-law rules that prohibit arbitration of a particular type [except, perhaps, a Private Attorneys General Act (“PAGA”), because the employee brings his/her claim not as an aggrieved employee, but as an agent or proxy for the state, a conclusion that a California Court of Appeal recently confirmed in McGill v. Citibank (12/18/14; 4th Appellate District).
I-9 Forms
Of course, there are numerous issues and questions surrounding I-9 Forms and an employer’s duty to insure that its workforce is lawfully in the country. Consequently, it is extremely important that all employers carefully monitor the manner in which I-9 forms are completed, given the penalties that the government imposes for errors, as well as how its supervisors handle workers who may not have valid documentation of their right to work in the United States, as criminal penalties accompany any efforts by an employer to “sneak” employees in the country to work.

UPDATE NOTE (5/27/15):

I refer to the minimum wage required in various locations.  I just read, however, that Los Angeles now also has enacted a new minimum wage law, and since L.A. is in California, it should probably be added to the FAQ’s.

“The Los Angeles City Council gave initial approval Tuesday to raising minimum pay in the nation’s second-largest city to $15 an hour by 2020.

The increases would begin with a wage of $10.50 in July 2016, followed by annual increases to $12, $13.25, $14.25 and then $15. Small businesses and nonprofits would be a year behind. Small businesses with 25 or fewer employees to have an additional year to reach the $15 plateau.”

Wage Statements In California

California Labor Code § 226 states that employers shall semimonthly or at the time of payment of wages furnish each of his or her employees, either as a detachable part of the check, or voucher paying the employee’s wages, or separately when wages are paid by personal check or cash an accurate itemized statement in writing showing (1) gross wages earned, (2) total hours worked by the employee except for any employee whose compensation is solely based on a salary and who is exempt from the payment of overtime, (3) the number of piece rate units earned and any applicable piece-rate if the employee is paid on a piece rate basis, (4) all deductions, provided that all deductions made on written order of the employee may be aggregated and shown as one item, (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 his or her social security number or an employee identification number other than a social security number,” (8) “the name and address of the legal entity that is the employer and, if the employer is a farm labor contractor, the name and address of the employer that secured the services of the employer.” “copy” includes a duplicate of the itemized statement provided to an employee or a duplicate computer-generated record. “The employer may take reasonable steps to insure the identity of a current or former employee.”

In regard to deductions, “the record of the deductions shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California.” “The deductions made from payment of wages shall be recorded in ink or other indelible form, properly dated, showing the month, day, and year.”

Also, an employer that is required to keep this information shall afford current and former employees the right to inspect or copy records

In addition, recently enacted AB 1513 requires that the employer also include in the itemized statement for employees compensated on a piece-rate basis to also separately state the total hours of compensable rest and recovery periods, the rate of compensation, and the gross wages paid for those periods during the pay period, and the total hours of other nonproductive time, as specified, the rate of compensation, and the gross wages paid for that time during the pay period. The bill requires employees to be compensated for rest and recovery periods and other nonproductive time at or above specified minimum hourly rates, separately from any piece-rate compensation. The bill defines “other nonproductive time to mean time under the employer’s control, exclusive of rest and recovery periods, that is not directly related to the activity being compensated on a piece-rate basis.” Any knowing and intentional violation is a crime.

The penalty for failure to provide a wage statement is: “(e)(1) An employee suffering injury as a result of a knowing and intentional failure to comply … is entitled to recover the greater of all actual damages or fifty dollars ($50) for the initial pay period in which a violation occurs and on hundred dollars ($100) per employee for each violation in a subsequent pay period, not to exceed an aggregate penalty of four thousand dollars ($4,000), and is entitled to an award of costs and reasonable attorney’s fees.”

Paid Sick Leave in California

 

AB 304, by Assembly member Lorena Gonzalez (D-San Diego) (7/13/15) – (Sick Leave: Accrual and Limitations; Clarification), was signed into law on July 13, 2015, by Governor Brown. The Labor Commissioner’s Office [the Labor Commissioner’s FAQ’s page is at: http://www.dir.ca.gov/dlse/Paid_Sick_Leave.htm.].  Below are the answers to frequently asked questions about paid sick leave, which are provided on the Labor Commissioner’s webpage.

In addition, it should be noted that there is a Notice that must be given to employees re: paid sick leave.  The Notice can also be found on the Labor Commissioner’s FAQ’s page at: [http://www.dir.ca.gov/dlse/Paid_Sick_Leave.htm.]. 

The Labor Commissioner’s California Paid Sick Leave FAQs – October 2015 Page 2 of 10

  1. When am I entitled to take paid sick leave?

A qualifying employee begins to accrue paid sick leave beginning on July 1, 2015, or if hired after that date on the first day of employment. An employee is entitled to use (take) paid sick leave beginning on the 90th day of employment.

  1. Why does the law take effect January 1, 2015 if I don’t begin accruing until July 1, 2015?

The different dates are a result of the general effective dates of new legislation (on January 1 following enactment of the law) and the way the law was drafted, making some of its provisions operative on a specified date (July 1, 2015). The qualifying period that determines which employees are eligible for paid sick leave, and the qualifying period for employee notice required by Labor Code 2810.5 both became effective on January 1, 2015; however the law provides that employees’ right to accrue and take sick leave did not begin until July 1, 2015.

  1. Does paid sick leave apply to all employees who work in California?

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 new law with some specific exceptions. Employees exempt from the paid sick leave law include:

  • Providers of publicly-funded In-Home Supportive Services (IHSS)
  • Employees covered by collective bargaining agreements with specified provisions
  • Individuals employed by an air carrier as a flight deck or cabin crew member, if they receive compensated time off at least equivalent to the requirements of the new law
  • Retired annuitants working for governmental entities.
  1. What if I am employed by a staffing agency?

Employees of a staffing agency are covered by the new law. Therefore, whoever is the employer or joint employer is required to provide paid sick leave to qualifying employees.

How qualifying employees accrue and take paid sick leave

  1.      If I qualify, how much paid sick leave can I take and be paid for?

It depends on what kind of plan your employer chooses to offer in order to comply with the new law. Some employers already have paid time off or sick leave policies that meet the requirements of the new law, and for employees who are covered by those existing plans, the amount of sick leave you are entitled to take California Paid Sick Leave FAQs – October 2015 Page 3 of 10

will not change. In general terms, the law requires employers to provide and allow employees to use at least 24 hours or three days of paid sick leave per year.

Employers adopting new policies to comply with the law may choose whether to have an “accrual” policy or a “no accrual/up front” policy.

An accrual policy is one where employees earn sick leave over time, with the accrued time carrying over in each year of employment. In general terms (and subject to some exceptions), employees under an accrual plan must earn at least one hour of paid sick leave for each 30 hours of work (the 1:30 schedule). Although employers may adopt or keep other types of accrual schedules, the schedule must result in an employee having at least 24 hours of accrued sick leave or paid time off by the 120th calendar day of employment.

Although employees may accrue more than three days of paid sick leave under the one hour for every 30 hours worked (or under an alternative accrual standard) under an accrual method, the law allows employers to limit an employee’s use of paid sick leave to 24 hours or three days during a year. The law also allows an employer to limit an employee’s total accrued paid sick leave to no more than 48 hours or six days.

A no accrual/up front policy makes the full amount of sick leave for the year available immediately at the beginning of a year-long period, except for initial hires where it must be available for use by the 120th day of employment. The employer must provide at least 24 hours or three days of paid sick leave per year and the full amount of this leave must be available for the employee’s use from the beginning of each year of employment, calendar year, or 12-month period. Note: the employer determines how the year will be calculated, whether it tracks a typical calendar year, fiscal year, or other 12-month period).

Lastly, the law allows certain types of existing sick leave policies to be “grandfathered,” if the policy was in existence prior to January 1, 2015. These policies are deemed to comply with the new law if:

  • The accrual provides no less than one day or 8 hours of accrued paid sick leave or paid time off within three months of employment per year, and
  • The employee was eligible to earn at least three days or 24 hours of paid sick leave or paid time off within 9 months of employment.

Any modification to a grandfathered sick leave or paid time off policy will nullify its qualification as a grandfathered policy and the employer will be required to comply with the requirements under the new law.

  1.    How is the year measured?

Because paid sick leave accrues beginning on July 1, 2015, or the first day of employment if hired after July 1, 2015, the 12 month period will vary by hire date for those employees hired after July 1, 2015. Therefore, the measurement will mostly be tracked by the employee’s anniversary date.California Paid Sick Leave FAQs – October 2015 Page 4 of 10

  1.    Can my employer provide or advance paid sick leave to me prior to my accrual of sufficient paid leave time or prior to meeting the 90-day employment requirement?

Yes. An employer may elect to advance sick leave to an employee before it is accrued, but there is no requirement for an employer to do so under this law.

  1.    Why does the law let me accrue more time than I could use in a year?

Accrual, carryover, and use are all distinct concepts.

Accrual: Accrual of paid sick leave is based on the number of hours an employee

works.

Carryover: The amount of paid sick leave carried over to the next year; may be subject to a cap if the employer establishes a cap by policy.

Use: The use of paid sick leave may be limited to 3 days or 24 hours per year.

  1.    What happens if I am a seasonal employee and I only work 60 days one year but return to the same employer within one year and work another 60 days?

The paid sick leave law requires that your accrued and unused sick leave be restored to you if you return to the same employer within 12 months from the previous separation.

Note: An employer is not required to restore previously accrued and unused paid time off (PTO), if the sick leave was provided pursuant to a PTO policy covering sick leave which was paid or cashed out to the employee at the end of the previous employment with that employer.

  1.    What happens if I return to work for the same employer after more than one year?

The paid sick leave law does not require that your accrued sick leave be restored to      you.

  1.    If I work part time, six hours per day, I have accrued 24 hours of paid sick leave and I take three paid sick days, can my employer refuse to allow me to take any more sick leave in that same year?

It will depend on the facts but generally speaking, no. The statute provides that an employer may limit the amount of sick leave to 24 hours or three days per year. Since you work 6 hours per day, you have only used 18 of your 24 hours. You still have 6 hours left to take and be paid for during the year because an employer must allow an employee to use at least three days or 24 hours, whichever is more (refer to DLSE Opinion Letter 2015.08.07). California Paid Sick Leave FAQs – October 2015 Page 5 of 10

Employer policies can provide more paid sick leave but not less.

  1.    What happens when an employer has its own Paid Time Off (PTO) plan?

The new law establishes minimum requirements for paid sick leave, but an employer may provide sick leave through its own existing sick leave or paid time off plan, or establish different plans for different categories of workers. Each plan must satisfy the accrual, carryover, and use requirements of the new law. In general terms, the minimum requirements under the new law are that an employer must provide at least 24 hours or three days of paid sick leave per year. A paid time off (PTO) plan that employees may use for the same purposes of paid sick leave, and that complies with all applicable minimum requirements of the new law, may continue to be used.

In general terms, the new law provides that, employers who adopt an accrual plan for paid sick leave, employees must accrue at least 1 hour of paid sick leave for each 30 hours of work. An employer may use a different accrual method, as long as the accrual is on a regular basis and results in the employee having no less than 24 hours of accrued sick leave or paid time off by the 120th calendar day of employment, or each calendar year, or in each 12-month period.

The law also has a “grandfather” clause, which allows employers with paid sick leave policies or paid time off policies that were in existence prior to January 1, 2015, to maintain those policies and be deemed in compliance as long as they meet the following requirements:

  • The accrual provides no less than one day or 8 hours of accrued paid sick leave or paid time off within three months of employment per year, and
  • The employee was eligible to earn at least three days or 24 hours of paid sick leave or paid time off within 9 months of employment.

Sick leave or annual leave provided to governmental employees pursuant to either certain Government Code provisions or a memorandum of understanding meet the accrual requirements.

  1.    How does an employer satisfy the provision for putting the full amount of leave into my leave bank under the alternative “up-front” (or advance) method for providing paid sick leave?

The law states that an employer is not required to have an accrual or carryover policy for paid sick leave if the “full amount of leave” is provided to employees at the beginning of each year of employment, calendar year or 12-month period. The “full amount of leave” that an employer is required to provide under this provision is at least 24 hours or three days of paid sick leave.

For initial hires, however, the employee must still meet the 90-day employment requirement prior to taking any paid sick leave.California Paid Sick Leave FAQs – October 2015 Page 6 of 10

  1.    Under the accrual method, can I carry over unused sick leave from one year to the next?

Yes, but an employer may limit or cap the overall amount of sick leave an employee may accrue to 6 days or 48 hours.

  1.    My employer provides paid time off which I can use for vacation or illness. Will my employer have to provide additional sick leave?

No, as long as your employer provides the minimum of at least 24 hours or three days per year of paid leave that can be used for health care and that meets other requirements in the law.

  1.  My company offers unlimited time off. How does the new law affect me?

Most employers with this new but growing policy do not track how much time      employees take off or for what reason. Although the new law requires that employers separately track sick leave accrual and use, for employers with unlimited paid time off plans, the notice, itemized pay stub or separate written statement provided with the payment of wages meets this requirement by indicating the paid sick leave is “unlimited”.

For what purposes can an employee take paid sick leave?

  1. What can I use paid sick leave for?

You can take paid sick leave for yourself or a family member, for preventive care or diagnosis, care or treatment of an existing health condition, or for specified purposes if you are a victim of domestic violence, sexual assault or stalking.

  • Family members include the employee’s parent, child, spouse, registered domestic

partner, grandparent, grandchild, and sibling.

  • Preventive care would include annual physicals or flu shots.

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). Your employer can require you 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.

  1.    Do I have to notify my employer before taking sick leave?

The employee must notify the employer in advance if the sick leave is planned, as may be the case with scheduled doctors’ visits. If the need is unforeseeable, the employee need only give notice as soon as practical, as may occur in the case of unanticipated illness or a medical emergency.

California Paid Sick Leave FAQs – October 2015 Page 7 of 10

Payment and tracking of earned and taken leave.

  1.    When I take paid sick leave, will I get paid as I normally do for the applicable pay period?

The new law requires that an employer provide payment for sick leave taken by an employee no later than the payday for the next regular payroll period after the sick leave was taken. This does not prevent an employer from making the adjustment in the pay for the same payroll period in which the leave was taken, but it permits an employer to delay the adjustment until the next payroll. For example, if you did not clock in for a shift and therefore were not paid for it but utilized your paid sick leave, your employer would have to pay you not later than the following pay period and account for it in the wage stub or separate itemized wage statement for that following regular pay period.

  1.    How much will I get paid?

It depends on whether you are an “exempt” or “non-exempt” employee. For non-exempt employees, you will be paid your regular or normal non-overtime hourly rate for the amount of time that you took as paid sick leave. For example, if you took two hours of paid sick leave to attend a doctor’s appointment, you will be paid for those two hours at the same non-overtime hourly rate you would have earned if you had been working.

To determine the rate of pay, the employer may either:

  • Calculate your regular, non-overtime rate of pay for the workweek in which you used paid sick leave, whether or not you actually worked overtime in that workweek (in general terms, this is usually done by dividing your total non- overtime compensation by the total non-overtime hours worked), or
  • Divide your total compensation for the previous 90 days (excluding overtime premium pay) by the total number of non-overtime hours worked in the full pay periods of the prior 90 days of employment.

For exempt employees, paid sick leave is calculated in the same manner the employer calculates wages for other forms of paid leave time (for example, vacation pay, paid-time off).

  1.    How will I know how much sick leave I have accrued?

Employers must show how many days of sick leave you have available on your pay stub, or on a document issued the same day as your paycheck. If an employer provides unlimited paid sick leave or unlimited paid time off, the employer may indicate “unlimited” on your pay stub or other document provided to you the same day as your wages.

Employers also must keep records showing how many paid sick day you earned and used for three years. This information may be stored on documents available to employees electronically. California Paid Sick Leave FAQs – October 2015 Page 8 of 10

  1. Does my employer have to document the reason I use paid sick leave?

The law states that an employer is not obligated to inquire into, or record, the purposes for which an employee uses paid sick leave or paid time off.

  1. How does the new law fit in with local sick leave ordinances?

If employees are subject to local sick leave ordinances, the employer must comply with      both the local and California laws, which may differ in some respects. The employer must provide the provision or benefit that is most generous to the employee.

  1.    What if I work an alternative work schedule of four 10-hour days and I take paid sick leave. How much should I be paid?

The paid sick leave law allows employees to decide how much paid leave time to take, subject to their employer’s ability to set a two-hour minimum.

For example, if an employee has accrued ten hours, he or she can request to be paid for ten hours. If the employee decides to take less time than that in paid sick leave, then he or she will be paid for the number of hours that they chose to take. Be advised, employees must take a minimum of two hours when they choose to take sick leave if the employer sets a two-hour minimum.

If an employee on an alternative work schedule is sick for three days and has accrued only 24 hours of paid sick leave, the employer will pay for the 24 hours accrued. However, if the employee has accrued 30 hours of paid sick leave they must be paid for the full 30 hours, or three days, of work (refer to DLSE Opinion Letter 2015.08.07).

  1.    Do I have the right to cash out my unused sick days, like I can with vacation and paid time off?

No, not unless your employer’s policy provides for a payout. If you leave your job and get rehired by the same employer within 12 months, you can reclaim (restore) what you had accrued in paid sick leave, provided it was not paid out pursuant to a paid time off policy at termination.California Paid Sick Leave FAQs – October 2015 Page 9 of 10

Required information to be provided to employees.

  1.    How will I learn of my rights to paid sick leave from my employer?

Beginning January 1, 2015, employers are required to display a poster in a    conspicuous place at the workplace.

The workplace posting must contain the following information:

  • That an employee is entitled to accrue, request, and use paid sick days;
  • The amount of sick days provided for and the terms of use of paid sick days;
  • That retaliation or discrimination against an employee who requests paid sick days or uses paid sick days or both is prohibited; and
  • That an employee has the right under this law to file a complaint with the Labor   Commissioner against an employer who retaliates or discriminates against an employee.

The new law required the Labor Commissioner to develop such a poster, and it is now available on the Labor Commissioner’s website.

After January 1, 2015, employers are required to provide most employees with an individualized Notice to Employee (required under Labor Code section 2810.5) that includes paid sick leave information. A Notice to Employee form revised to reflect the new sick leave law by the Labor Commissioner’s Office must be used for employees hired after January 1, 2015. For employees hired prior to January 1, 2015, the employer is required to provide a revised Notice to Employee or otherwise inform each employee of the information regarding paid sick leave, using any of the alternative methods specified in Labor Code section 2810.5(b).

The Notice to Employee provisions of Labor Code section 2810.5 do not apply to exempt employees, most government employees, or to employees covered by a valid collective bargaining agreement that meets certain specifications.

  1.    How will I know if my employer’s policy has different terms from the paid sick leave law?

The state law providing for paid sick leave creates minimum standards for paid sick leave. Employers may use their existing policies so long as the policy complies with the minimum requirements of the law. The revised Notice to Employee form includes a check box to inform an employee of an employer’s own existing paid time off or paid sick leave policy that meets or exceeds the requirements of the new law.California Paid Sick Leave FAQs – October 2015 Page 10 of 10

To avoid misinformation or misunderstanding regarding an employer’s paid time off or paid sick leave policy, employers are encouraged to ensure that employees are made fully aware of the terms and conditions of their policy. Although the notice requirements of Labor Code section 2810.5 do not apply to employees who are exempt from the payment of overtime, employees who are exempt from the payment of overtime are covered by this new paid sick leave law.

  1.    Does my employer have to issue new notices to employees who were hired prior to January 1, 2015?

In general, yes. Unless the notice requirement in Labor Code section 2810.5 does not apply (exempt employees, public employees, and employees covered under certain collective bargaining agreements are excluded), or if the paid sick leave does not apply under one of the exceptions stated in Labor Code section 245.5(a), an employer must notify all employees hired prior to January 1, 2015 of changes to terms and conditions of employment that relate to paid sick leave within 7 days of the actual change. A revised Notice to Employee may be used for providing individual notice to these existing employees unless the employer chooses an authorized alternative method.

  1.    If I already work under an existing paid leave policy or sick leave policy which is in writing and my employer states it complies with the new law and will not be changed as a result of this law, will I still get individual notice?

Although an existing paid sick leave or paid time off policy may already satisfy the minimum requirements of the law, and the policy may have been previously provided to an employee or contained in an employer’s policy manual available to employees), employers must provide some form of notice of the employee’s rights under the new law.

The Labor Commissioner’s Office has advised employers that it is a best practice to provide an individual notice containing information about the new paid sick leave law on the revised DLSE notice form to existing employees.

Although an existing paid sick leave or paid time off policy may already satisfy the minimum requirements of the law, and the policy may have been previously provided to an employee or contained in an employer’s policy manual available to employees), employers must provide some form of notice of the employee’s rights under the new law.

The Labor Commissioner’s Office has advised employers that it is a best practice to provide an individual notice containing information about the new paid sick leave law on the revised DLSE notice form to existing employees.

Whether an employer elects to use the DLSE revised form or another kind of written document, such notice must contain information about the employee’s rights under new paid sick leave law, and ideally should include details on how the employer intends to meet the requirements of the new law for the particular employee. For example, a written statement provided to the employee which refers to or summarizes the employer’s existing sick leave policy and contains the points of information as specified in the revised notice form that is provided to each employee would be the recommended best practice.

Required information to be provided to employees.

How will I learn of my rights to paid sick leave from my employer?

Beginning January 1, 2015, employers are required to display a poster in a conspicuous place

at the workplace. The workplace posting must contain the following information:

  • That an employee is entitled to accrue, request, and use paid sick days;
  • The amount of sick days provided for and the terms of use of paid sick days;
  • That retaliation or discrimination against an employee who requests paid sick days or uses paid sick days or both is prohibited; and
  • That an employee has the right under this law to file a complaint with the Labor Commissioner against an employer who retaliates or discriminates against an employee

The new law required the Labor Commissioner to develop such a poster, and it is now available on the Labor Commissioner’s website.

After January 1, 2015, employers are required to provide most employees with an individualized Notice to Employee (required under Labor Code section 2810.5) that includes paid sick leave information.  A Notice to Employee form revised to reflect the new sick leave law by the Labor Commissioner’s Office must be used for employees hired after January 1, 2015.  For employees hired prior to January 1, 2015, the employer is required to provide a revised Notice to Employee or otherwise inform each employee of the information regarding paid sick leave, using any of the alternative methods specified in Labor Code section 2810.5(b).

The Notice to Employee provisions of Labor Code section 2810.5 do not apply to exempt employees, most government employees, or to employees covered by a valid collective bargaining agreement that meets certain specifications.

How will I know if my employer’s policy has different terms from the paid sick leave law?

The state law providing for paid sick leave creates minimum standards for paid sick leave. Employers may use their existing policies so long as the policy complies with the minimum requirements of the law. The revised Notice to Employee form includes a check box to inform an employee of an employer’s own existing paid time off or paid sick leave policy that meets or exceeds the requirements of the new law.

To avoid misinformation or misunderstanding regarding an employer’s paid time off or paid sick leave policy, employers are encouraged to ensure that employees are made fully aware of the terms and conditions of their policy. Although the notice requirements of Labor Code section 2810.5 do not apply to employees who are exempt from the payment of overtime, employees who are exempt from the payment of overtime are covered by this new paid sick leave law.

Does my employer have to issue new notices to employees who were hired prior to January 1, 2015?

In general, yes.  Unless the notice requirement in Labor Code section 2810.5 does not apply (exempt employees, public employees, and employees covered under certain collective bargaining agreements are excluded), or if the paid sick leave does not apply under one of the exceptions stated in Labor Code section 245.5(a),an employer must notify all employees hired prior to January 1, 2015 of changes to terms and conditions of employment that relate to paid sick leave within 7 days of the actual change.  A revised Notice to Employee may be used for providing individual notice to these existing employees unless the employer chooses an authorized alternative method.

If I already work under an existing paid leave policy or sick leave policy which is in writing and my employer states it complies with the new law and will not be changed as a result of this law, will I still get individual notice?

Although an existing paid sick leave or paid time off policy may already satisfy the minimum requirements of the law, and the policy may have been previously provided to an employee or contained in an employer’s policy manual available to employees), employers must provide some form of notice of the employee’s rights under the new law.

The Labor Commissioner’s Office has advised employers that it is a best practice to provide an individual notice containing information about the new paid sick leave law on the revised DLSE notice form to existing employees.

Whether an employer elects to use the DLSE revised form or another kind of written document, such notice must contain information about the employee’s rights under new paid sick leave law, and ideally should include details on how the employer intends to meet the requirements of the new law for the particular employee. For example, a written statement provided to the employee which refers to or summarizes the employer’s existing sick leave policy and contains the points of information as specified in the revised notice form that is provided to each employee would be the recommended best practice.