1. It does not matter if you are a start-up, mom and pop business, or a fortune 500 company, employment laws cannot be ignored.
While different laws do apply to larger employers, for the most part, every employer has to comply with roughly the same laws in California. California’s paid sick leave requirement that took effect in 2015 is a good example, there is no exception for small businesses. If the employer has one employee, the employer must offer paid sick leave in accordance with the law. Think you are too “small” to be a target? The penalties add up very quickly for very technical violations, such as not providing all of the required information on an employee’s pay stub. Plus, the Labor Commissioner just received more authority in pursuing judgments against employers starting in 2016, including the ability to hold business owners personally liable for unpaid Labor Commissioner judgments.
2. Not every employee can be exempt.
There are many different exemptions available that “exempt” employees from certain Labor Code requirements, such as overtime pay. However, to qualify for a “white collar” exemption, employees must meet a two factor test: (1) salary basis test and (2) duties test. To pass the salary basis test, exempt employees must be paid the equivalent of two times the state’s minimum wage for a 40 hour week. As of July 1, 2014, the minimum wage in California increased from $8.00 to $9.00 per hour. It is set to increase again to $10.00 per hour on January 1, 2016. With the increase in the state minimum wage, there is a corresponding raise in the minimum salary required to qualify as exempt under the “white collar” exemptions. Therefore, on July 1, 2014, in order to qualify for a white collar exemption, the employee must receive an annual salary of at least $37,440, and as of January 1, 2016, the threshold annual salary increases to at least $41,600.
Don’t forget, the analysis does not stop there, the employee must also pass the duties test. Generally, this means that more than one-half of the employee’s work time must be spent engaged in exempt work. This differs substantially from the federal test which simply requires that the “primary duty” of the employee falls within the exempt duties.
3. Companies must be careful about vacation policies under CA law.
The Wall Street Journal reports that Zenefits, a HR software and insurance provider based in San Francisco, is dealing with potential unpaid vacation claim from its own employees. Zenefits has raised $500 million at a $4.5 billion valuation, and has provided a new model to the insurance sales industry by providing free HR software to its users, in exchange for the opportunity to become the client’s insurance and benefits broker. The company is offering former employees on average $5,000 to resolve a potential dispute regarding its vacation policy. It appears from the reports that the company switched from a vacation policy that provided very specific vacation accrual rates to an unlimited vacation policy. During the switch, however, it is reported that the company did not pay out the vacation that was accrued under the previous policy. California law is very specific, and requires that companies pay all accrued but unused vacation upon separation from the company, and does not permit “use-it-or-lose-it” vacation policies.
4. Employees must be paid for all wages, including all accrued but unused vacation at time of termination.
My previous Friday’s Five article addresses the timing requirements for when wages and unused vacation must be paid to employees separating from a company.
5. Start-up mentality of “ask for forgiveness” can cost a lot of money in California.
While an aggressive strategy may be good for creating a business, breaking into a new industry, or created a new product, the strategy is the opposite of how employers should operate in regards to complying with employment laws in California. While it takes time, and a relatively small amount of money to come into compliance up front, this investment is much smaller than the hundreds of hours and huge costs spent defending litigation.
Photo: Shelly Prevost