- Employee vs. Independent Contractor
Employers oftentimes improperly classify their employees as independent contractors so that they, the employer, do not have to pay payroll taxes, the minimum wage or overtime, comply with other wage and hour law requirements such as providing meal periods and rest breaks or reimburse their workers for business expenses incurred in performing their jobs. Additionally, employers do not have to cover independent contractors under workers’ compensation insurance and are not liable for payments under unemployment insurance, disability insurance, or social security. There is no set definition of the term “independent contractor” and as such, one must look to the interpretations of the courts and enforcement agencies to decide if in a particular situation a worker is an employee or independent contractor. California’s wage and hour laws (e.g., minimum wage, overtime, meal periods and rest breaks, etc.), protect employees, but not independent contractors. Despite how you are being paid or what documentation you have signed, call Feldman Browne, APC to determine if you have been properly classified.
- Time Keeping Standards
To comply with its legal obligations to maintain accurate time records and to ensure that employees are paid for all hours worked, employers are required to accurately record all hours worked by employees during each workday. Employers may use any timekeeping method they choose. For example, they may use a time clock, have a timekeeper keep track of employee’s work hours, or tell their workers to write their own times on the records. Any timekeeping plan is acceptable as long as it is complete and accurate.
- Personnel Records
Effective January 1, 2013, California law provides that current and former employees (or a representative) have the right to inspect and receive a copy of the personnel files and records that relate to the employee’s performance or to any grievance concerning the employee. Labor Code Section 1198.5 Inspections must be allowed at reasonable times and intervals, but not later than 30 calendar days from the date the employer receives a written request. Upon a written request from a current or former employee or a representative, the employer shall provide a copy of the personnel records, at a charge not to exceed the actual cost of reproduction, not less than 30 calendar days from the date the employer receives the request.
- Overtime Laws
California law requires that employers pay overtime, whether authorized or not, at the rate of one and one-half times the employee’s regular rate of pay for all hours worked in excess of eight hours in any workday, and for the first eight hours of work on the seventh consecutive day of work in a workweek, and double the employee’s regular rate of pay for all hours worked in excess of 12 in any workday and for all hours worked in excess of eight on the seventh consecutive day of work in a workweek. An employer may dictate the employee’s work schedule and hours. Additionally, under most circumstances, the employer may discipline an employee, up to and including termination, if the employee refuses to work scheduled overtime.
- Meal and Rest Breaks
An employer cannot employ someone for a work period of more than five hours without providing an unpaid, off-duty meal period of at least 30 minutes. The first meal period must be provided no later than the end of the employee’s fifth hour of work. 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. Employers must authorize and permit uninterrupted rest periods for all nonexempt employees whose total daily work time is at least 3.5 hours. These mandatory rest breaks must be offered at the rate of 10 minutes for every four hours worked, or “major fraction” thereof. Anything over two hours is considered by the courts to be a “major fraction” of four. As a general rule, and insofar as practicable, the rest period must be in the middle of the four-hour work period. Though this is the general rule, there is no absolute obligation to permit a rest period before a meal period.
- Time Off Requirements – Paid Sick Leave
Paid Sick Leave must be provided to all types of employees: part-time, hourly, temporary, seasonal, exempt and nonexempt. Any employee who has worked in California for the same employer for 30 or more days within one year from the beginning of his/her employment will be entitled to Paid Sick Leave. Employees will earn at least one hour of paid leave for every 30 hours worked. Sick time is paid at the employee’s current rate of pay. Unused, accrued paid sick leave must be carried over to the following year and may be capped at 48 hours, based on the employer’s policy. Paid sick leave isn’t just for employees to use when he or she is sick. Employees also can use paid sick leave to care for a child, parent (including parent-in-law), spouse, registered domestic partner, grandparent, grandchild or sibling. Paid Sick Leave is protected time off. Employers can’t retaliate or discriminate against employees who use or try to use Paid Sick Leave.
- Fair Pay Act of 2016
For decades now, the California Equal Pay Act has prohibited an employer from paying its employees less than employees of the opposite sex for equal work. On October 6, 2015, Governor Brown signed the California Fair Pay Act (SB 358), which strengthens the Equal Pay Act in a number of ways. The amended Equal Pay Act prohibits an employer from paying any of its employees wage rates that are less than what it pays employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions. “Substantially similar work” refers to work that is mostly similar in skill, effort, responsibility, and performed under similar working conditions. Skill refers to the experience, ability, education, and training required to perform the job. Effort refers to the amount of physical or mental exertion needed to perform the job. Responsibility refers to the degree of accountability or duties required in performing the job. Working conditions has been interpreted to mean the physical surroundings (temperature, fumes, ventilation) and hazards. The amended law eliminates the requirement that the jobs that are compared must be located at the same establishment; replaces a comparison of “equal” work with a comparison of “substantially similar” work; makes it more difficult for employers to justify unequal pay between men and women; adds new express anti-retaliation protections for workers that assist employees with bringing claims under the Act; provides that an employer cannot prohibit workers from disclosing their wages, discussing the wages of others, or inquiring about others’ wages.
- Pregnancy Disability Leaves
Pregnancy Disability Leave, or PDL, is a leave from work to accommodate employees with a pregnancy disability. Your health care provider will recommend how long you need to take leave from work, but you are entitled to up to four months of PDL per pregnancy. (Cal. Code Regs. tit. 2, § 11042). This leave is in addition to any other leave for which you may be eligible under the provisions of the Fair Employment and Housing Act, California Medical Leave Act, other state laws, and local ordinances, or your employer’s leave policies. If your employer has a policy of providing more than four months of leave for other disabilities, then your employer must also provide you with the same leave, if required by your pregnancy-related disability.
- Reasonable Accommodations
The California Fair Employment and Housing Act requires employers of five or more employees to provide reasonable accommodation for individuals with a physical or mental disability to perform the essential functions of their jobs unless it would cause an undue hardship. Reasonable accommodation can include but is not limited to, the following: changing job duties, providing medical leave, changing work schedules, relocating the work area, or providing work aids. Employers must initiate an “interactive process” when an applicant or employee requests reasonable accommodations. In California, it is unlawful for an employer to fail to engage in a timely, good faith, interactive process. The “interactive process” requires communication and good faith exploration of possible accommodations between employers and individual employees. That shared goal is to identify an accommodation that allows the employee to perform the job effectively. The process requires an individualized assessment of both the job and the specific physical or mental limitations of the individual that are directly related to the need for reasonable accommodation.
Under California law, workplace retaliation is unlawful if your employer subjects you to adverse employment action (including discipline and termination) because you engaged protected activities which include: complaining about workplace harassment or discrimination, reporting illegal conduct, refusing to engage in illegal conduct, reporting fraud, filing a wage claim with the California Labor Commissioner, and assisting other employees in filing a lawsuit or complaint of illegal activity in the workplace.