Best Practices For California Employers

Last Sunday was the deadline for Governor Brown to sign any new bills into law, and I was fielding a lot of questions about the bills that were signed by the Governor (as well as the bills that were vetoed) this week.  So, I thought it would be appropriate for this Friday’s Five to be a round up of my recent content across various social media platforms California employers should not miss:

1. My article on the new employment bills signed by Governor Brown that will impact employers as well as the major bills that were vetoed by the Governor.

2. I published a new episode on my podcast discussing in a bit more detail the new employment bills signed by Governor Brown.

Listen and subscribe my podcast available on Spotify (link here) or iTunes (link here).

3. I’ve also been publishing a few thoughts on Instagram.

4. My recent Facebook post on wage and hour issues that employers need to understand.

5. Portion of a recent panel I moderated on how California employers manage meal and rest breaks in California (on YouTube or available below):

Have a great weekend.

Employers need to be aware of the requirements and tight deadlines they have in responding to an employee’s request for various employment documents under California law.  This Friday’s Five focuses on five areas of records that are typically requested by applicants, current or former employees, and some common deadlines to comply with those requests.

1. Current and former employees have a right to their personnel records under Labor Code section 1198.5.

Under California Labor Code section 1198.5(a) provides that every current and former employee, or their representative, has the right to inspect and receive a copy of their personnel records.  In terms of requests pursuant to 1198.5, the request must be made in writing through two methods:

  • Written and submitted by the current or former employee or his or her representative.
  • Written and submitted by the current or former employee or his or her representative by completing an employer-provided form.

Employers must comply with the request no later than 30 calendar days from receipt of the written request.  Labor Code section 1198.5(b)(1).

2. The terms “personnel records” or “personnel file” are not defined in the Labor Code.

Because Labor Code section 1198.5 refers to the terms “personnel records”, but never defines the term, there is considerable ambiguity about what documents should be keep in an employee’s personnel file and what documents must be made available upon a request to inspect or copy the personnel records.  While not legally binding on employers, there is some guidance from the Division of Labor Standards Enforcement(“DLSE”) expressing the following view:

Categories of records that are generally considered to be “personnel records” are those that are used or have been used to determine an employee’s qualifications for promotion, additional compensation, or disciplinary action, including termination. The following are some examples of “personnel records” (this list is not all inclusive):
1. Application for employment
2. Payroll authorization form
3. Notices of commendation, warning, discipline, and/or termination
4. Notices of layoff, leave of absence, and vacation
5. Notices of wage attachment or garnishment
6. Education and training notices and records
7. Performance appraisals/reviews
8. Attendance records

However, Labor Code section 1198.5(h) clearly sets forth that this section does not apply to: (1) records relating to the investigation of a possible criminal offense, (2) letters of reference, (3) ratings, reports, or records that were: obtained prior to the employee’s employment, prepared by identifiable examination committee members, or obtained in connection with a promotional examination.  In addition, employers may redact the names of “any nonsupervisory employee” contained in the personnel file being requested.  Labor Code section 1198.5(g).

Labor Code section 1198.5 provides that employers must keep a copy of the employee’s personnel records for three years after the employee has left the company.  Labor Code section 1198.5(c)(1).

3. The right to inspect a personnel file under section 1198.5 stops once a lawsuit is filed.

If the current or former employee files a lawsuit that “relates to a personnel matter against his or her employer or former employer” the right to inspect personnel records under Labor Code section 1198 ceases.  Labor Code section 1198(n) and (o).

4. Labor Code section 432 provides applicants and employees with a right to a copy of any document he or she signed.

An employee or applicant is entitled to receive any document relating to the “obtaining or holding of employment.”  The employee or applicant must be provided the document “upon request.”  Labor Code section 432.

5. Employers have 21 days to provide payroll information required under Labor Code section 226.

Employers are required to provide employees with itemized wage statements or pay stubs that lists various items.  I’ve written about the requirements of what must be on wages statements previously here, and the DLSE provides examples of compliance pay stubs on its website for hourly employees here and for employees paid by piece rate here.

Under Labor Code section 226(c), employers have 21 calendar days to respond to written or oral requests to inspect or copy the records covered by this section.  Under this Labor Code section, employers can take reasonable steps to ensure the identify of a current or former employee, and the actual costs of reproduction can be charged by the employer.

A request for personnel records and payroll records cannot be taken lightly by employers, and failure to comply with the various requirements can expose employers to liability.  It is important to seek legal counsel immediately once an employee or their representative makes a verbal or written request for employment related documents or ensure compliance with the request.  It is also a key time period to evaluate whether the employee may file litigation, and to take steps to resolve any potential issues prior to litigation, if at all possible.

Recently I had the honor of moderating a panel discussion on issues facing restaurant operators in California.  The panelists were Joseph Pitruzelli owner of Wurstküche, Francis Drelling General Counsel at Specialty Restaurants Corporation, Naz Moin former director of Human Resources at PizzaRev, and Madelyn Alfano owner of Maria’s Italian Kitchen.   

 You can listen to the discussion on my podcast available on Spotify (link here) or iTunes (link here).

 Even though the discussion is focused on the hospitality industry, the lessons are applicable to companies, owners, and human resource managers operating in nearly every type of company and industry.  This Friday’s Five covers the top five points I took away from the discussion: 

  1.  There is no one background that is best in determining success.  As you will hear, the panelists all are successful in their respective companies, but all have different backgrounds, and backgrounds that you would not necessarily think would make them successful in their respective positions.  Pursue what interests you, and you will be successful.   
  2. Single restaurant owners face the same issues as multi-unit operators.
  3. Hire for personality – everything else can be taught. 
  4. Back of the house workers do affect the company culture. 
  5. Employees should not be surprised when they are let go.  Constant coaching, counseling, and documentation is critical in managing employees.  Also, remember to give positive feedback to employees who you see doing exceptional work.   

I would like to thank the panelists again for joining me for the excellent discussion.  I hope you learn as much as I did from the conversation.

Here are five questions that a company, either through its managers or human resources department should be asking its employees on a routine basis:

1. Are you aware of the company’s open-door policy?

If the employee is not aware of the policy, explain it to them, and document the conversation.  If done right, this can go a long way in making employees more comfortable in voicing concerns or making complaints.  As I always explain to clients, it is better knowing the bad facts and issues sooner than later.

2. Can you explain the company’s meal and rest break policy?

See if the employees can explain the policy.  If they can, great – document the conversation.  If they cannot, explain the policy to them and go over any questions they have and document that this was done.  Then follow up with the employee to ensure that they have been able to take all of their meal and rest breaks.

3. You have not had any complaints in the past, do you have any now?

Proactively asking employees if they have any complaints can help address issues before they become problematic.  This is taking an active approach to the open-door policy.  I like to call it the active-door policy – you are actively engaging employees to talking with the company and given them an opportunity to voice any concerns.  These conversations should be documented.

4. Are there any employees you simply do not like working with?

Some employers might feel that this is too direct, but I think the question may draw out potential areas of conflict between employees.  While workplace conflict is not illegal in and of itself, the quicker employers can address and resolve conflict greatly reduces the likelihood of litigation.  If the company can address these concerns, and potentially deal with or move employees so that they do not have to work with others they do not like, it could be a solution to a more productive workforce.

5. Would you recommend that your friends should work here?

If yes, then ask for the recommendations.  The answer is no, ask follow-up questions about why.  Again, the quicker the employer can address potential problems, the better.

As noted above, these discussions should be documented.  The documentation will be good evidence that the company has an open-door policy and is effectively dealing with employee’s complaints on a timely basis.  This could be essential in defending many types of claims that could arise through litigation.

Five reminders about the timing requirements for providing final wages to employees:

  1. An employee who is discharged must be paid all of his or her wages, including accrued vacation, immediately at the time of termination.
  2. An employee who gives at least 72 hours prior notice of quitting, and quits on the day given in the notice, must be paid all earned wages, including accrued vacation, at the time of quitting.
  3. An employee who quits without giving 72 hours prior notice must be paid all wages, including accrued vacation, within 72 hours of quitting.
  4. An employee who quits without giving 72-hours’ notice can request their final wage payment be mailed to them. The date of mailing is considered the date of payment for purposes of the requirement to provide payment within 72 hours of the notice of quitting.
  5. Final wage payments for employees who are terminated (or laid off) must be made at the place of termination. For employees who quit without giving 72 hours’ notice and do not request their final wages be mailed to them, the final wages must be made available at the office of the employer within the county in which the work was performed.

For any employer who willfully fails to pay any wages due a terminated employee can subject the employer to “waiting time penalties” under Labor Code section 203. Waiting time penalties accrue at an amount equal to the employee’s daily rate of pay for each day the wages are not paid, up to a maximum of 30 calendar days.  The court in Mamika v. Barca (December 1998) set forth that waiting time penalties continue to accrue on a daily basis:

Under this scheme, unpaid wages continue to accrue on a daily basis for up to a 30–day period. Penalties accrue not only on the days that the employee might have worked, but also on nonworkdays. (Cf. Iverson v. Superior Court (1985) 167 Cal.App.3d 544, 548, 213 Cal.Rptr. 399 [unless otherwise specified, “days” mean “calendar days”].)

The California Supreme Court ruled in Pineda v. Bank of America (November 2018) that the statute of limitations for recovering waiting time penalties under Labor Code section 203 is three years.  California employers need to review the obligations to timely pay employees their final wages to reduce this potential liability in the form of waiting time penalties, which can add up to a significant amount, even for minimum wage earners.

How is it Friday already, and summer is coming to a close quickly?  Time for another Friday’s Five, and this week I cover five reminders about meal break waivers in California:

1. Meal break timing obligations.

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.  A second meal period of not less than thirty minutes is required if an employee works more than ten hours per day. Labor Code Section 512.

The California Supreme Court held in Brinker Restaurant Corp. v. Superior Court, that:

We conclude that, absent waiver, section 512 requires a first meal period no later than the end of an employee’s fifth hour of work, and a second meal period no later than the end of an employee’s 10th hour of work.

See my previous post on when employers must authorize employees to take meal breaks.

2. Employer’s duty to authorize meal breaks.

As long as employers effectively allow an employee to take a full 30-minute meal break, the employee can voluntarily choose not to take the break, and the employer would not owe the employee the additional hour of pay in the form of premium pay for a violation. The Supreme Court explained in Brinker:

The employer that refuses to relinquish control over employees during an owed meal period violates the duty to provide the meal period and owes compensation [and premium pay] for hours worked. The employer that relinquishes control but nonetheless knows or has reason to know that the employee is performing work during the meal period, has not violated its meal period obligations [and owes no premium pay], but nonetheless owes regular compensation to its employees for time worked.

While employees may voluntarily work through meal breaks, if the employer knows or should have known that the employee working during this time, the employer must ensure that the employee is paid for the time working.

3. Employees may waive meal breaks for shifts less than 6 hours or shifts less than 12 hours.

If the total work period per day for an employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee.  Likewise, if the 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.

 4. Meal break waivers for shifts less than six hours and less than 12 hours are not required to be in writing, but should be.

Labor Code section 512 does not require an employee’s waiver of their meal breaks for shifts less than six hours or shifts less than 12 hours to be in writing.  However, in order to avoid any potential disputes and to be able to defend against any potential claims by disgruntled employees, it is always a good practice to have the voluntary waivers documented and signed by employees.

5. Don’t confuse “on-duty” meal agreements with meal period waivers.

On-duty meal period agreements are different than meal period waivers.  The Wage Orders provide for an “on duty” meal period that is an exception to the required meal break if the following requirements are met:

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 parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time.

Wage Order No. 4-2001(a)(emphasis added). Unfortunately, the definition of the “nature of the work” is not clear, and has been construed very narrowly against employers.  For example, the Department of Labor Standards Enforcement (“DLSE”) has issued an opinion letter addressing whether a shift manager in a fast food restaurant working the night shift would be allowed to take a “on duty” meal period.  The DLSE concluded that based on the facts presented in the situation of the fast food restaurant, the nature of the work in the restaurant should not prevent the shift manager from being relieved of all duties for 30 minutes, and therefore the on-duty meal period would not be valid in this context. Click here to download the opinion letter.

Click here for more information about on-duty meal period agreements. Implementing an on-duty meal period agreement in California needs to be approached with caution, and should only be done with assistance from knowledgeable counsel.

[Update: AB 3080 was vetoed by the Governor on September 30, 2018, and will not become law.  Click here to see other bills that were approved by the Governor and will become law for California employers in 2019.]

California legislature passed AB 3080 which prohibits employers from entering into arbitration agreements with employees and now is waiting for Governor Brown’s signature.  It is uncertain whether the Governor will sign the bill into law, as in 2015 the Governor vetoed AB 465 that contained a similar prohibition on arbitration agreements in the workplace.  This Friday’s Five covers five aspects of the bill that California employers need to understand:

1. Bill bars confidential agreements regarding harassment.

AB 3080, if passed, would add Section 432.4 to the Labor Code, which would:

…prohibit any applicant for employment, employee, or independent contractor from disclosing to any person an instance of sexual harassment that the employee or independent contractor suffers, witnesses, or discovers in the workplace or in the performance of the contract, or otherwise opposing any unlawful practice, or from exercising any right or obligation or participating in any investigation or proceeding with respect to unlawful harassment or discrimination.

There is some question about whether this language would prohibit employers from entering into settlement agreements with employees that require confidentiality of its terms.  This practice is prevalent in employment litigation, not only in harassment claims, but in all aspects of employment litigation, such as when settling wage claims.  One rational for keeping a settlement agreement confidential is to be able to settle a claim and stop litigation without admitting liability.  If the amount of settlements are known, it may be viewed as an admission by other third-parties, which could increase the amount of litigation filed against the employer.  The ability to keep settlements confidential aids in settling cases, and if employers cannot confidentially resolve claims it could lead to longer and harder fought litigation.

2. Prohibits arbitration agreements for wage and hour claims, discrimination, harassment, and retaliation.

The bill would also add Section 432.6 to the Labor Code, prohibiting employers from entering into arbitration agreements with employees.  The bill provides that “a person shall not…require any applicant for employment or any employee to waive any right, forum, or procedure for a violation of any provision of the California Fair Employment and Housing Act” or the Labor Code.  This would bar arbitration agreements for claims of harassment, discrimination, or retaliation under the Fair Employment and Housing Act, in addition to barring arbitration agreements that cover wage and hour claims under the Labor Code.

3. Prohibits employers from taking any employment action against employees who refuse to enter into arbitration agreements.

The bill would make it illegal for an employer to:

…threaten, retaliate or discriminate against, or terminate any applicant for employment or any employee because of the refusal to consent to the waiver of any right, forum, or procedure for a violation of the California Fair Employment and Housing Act or [the Labor Code], including the right to file and pursue a civil action or a complaint with, or otherwise notify, any state agency, other public prosecutor, law enforcement agency, or any court or other governmental entity of any alleged violation.

4. Creates personal liability for violations.

The bill designates that “a person” shall not take the actions prohibited in the bill, opening the possibility for individual liability for anyone violating the requirements of the bill.

5. Likely legal challenges to AB 3080 if it is eventually signed into law.

In May 2018, the U.S. Supreme Court ruled in Epic Systems Corp. v. Lewis, that employment arbitration agreements that bar class actions are enforceable.  The vote was 5 to 4 in upholding the use of arbitration agreements in the workplace.  If the bill is signed into law the by the Governor, it will likely be challenged on the grounds that is preempted by the Federal Arbitration Act.

Employers need to keep a close eye on this bill, and even if the bill is passed, there will likely be a lengthy legal challenge on its validity.  Employers should review whether arbitration agreements are appropriate for their workforce with counsel, and need to keep in contact with their attorneys regarding the use of confidentiality agreements and arbitration agreements in the workplace.

I’m moderating a panel discussion on best practices for how to hire and retain good employees at the Western Food Service and Hospitality Expo (WFHE).  The panelists are Joseph Pitruzelli owner of Wurstküche, Francis Drelling General Counsel at Specialty Restaurants Corporation, Naz Moin former director of Human Resources at PizzaRev, and Madelyn Alfano owner of Maria’s Italian Kitchen.  It is on Monday, August 20 at 4 p.m. in the Education Theater (session number S127.  Hope you join us if you are attending the Expo.

In addition, in connection with the California Restaurant Association (CRA), my firm is offering a special an in-person training session that will comply with all the requirements outlined in the regulations regarding California’s Mandatory Sexual Harassment Prevention Training for supervisors (AB 1825) . Supervisors for large employers are required to take this training every two years.  As a bonus, Sexual Harassment Prevention registrants will gain complimentary access to the WFHE show floor, valid day of training (Tuesday, 8/21/18).  The training is at the LA Convention Center, and will take place from 9 to 11:30 a.m. (the show starts at 11 a.m.).  This training is offered to CRA members for FREE and $25 for non-members. Both members and non-members will need to register online here before the day of the training.  Click here for more details about the training and to register.

My firm will have a booth at the show again this year, so if you attend the show, be sure to stop by and say hello.  We are at Booth #1543 (across the aisle from the California Restaurant Association’s booth).  The Expo runs from August 19 to 21 and is at the LA Convention Center.

Also, please stop by our booth and say hi to us if you are attending.  We have some nice swag for readers of the blog!

With the summer coming to an end quickly, and people trying to fit in their vacations during these final weeks, it is a good time to review a few aspects of vacation time under California law. There are numerous rules about how employees earn vacation, and it is often tricky to draft a proper policy without some advice from an experienced California employment attorney. Many out-of-state employers assume that their policy complies with California law when setting up operations, but California is unlike most other states when it comes to vacation time. This Friday’s Five reviews five issues on vacation policies that can create problems for employers operating in California:

1. No use-it-or-lose-it policies permitted.
Under California law, vacation is treated the same as earned wages and vest as the employee performs work. Because vacation is earned proportionally as the employee works, any type of policy requiring employees to lose vacation that has already been earned is illegal under California law.

2. Reasonable caps are allowed.
While employers cannot implement “use-it-or-lose-it” policies, they can place a reasonable cap, or ceiling, on vacation accrual. The DLSE explains:

Unlike “use it or lose it” policies, a vacation policy that places a “cap” or “ceiling” on vacation pay accruals is permissible. Whereas a “use it or lose it” policy results in a forfeiture of accrued vacation pay, a “cap” simply places a limit on the amount of vacation that can accrue; that is, once a certain level or amount of accrued vacation is earned but not taken, no further vacation or vacation pay accrues until the balance falls below the cap. The time periods involved for taking vacation must, of course, be reasonable. If implementation of a “cap” is a subterfuge to deny employees vacation or vacation benefits, the policy will not be recognized by the Labor Commissioner.

3. Vacation is a form of earn wages that must be paid out on the employee’s last day of work.
An employee who is discharged must be paid all of his or her wages, including accrued vacation, immediately at the time of termination. See Labor Code Sections 201 and 227.3

4. Deductions are not permitted from employee’s final wages for use of vacation that was not accrued.
Vacation is treated as a form of wages under California law, and by permitting an employee to take vacation time before it is earned, is effectively providing a loan to the employee.  Employers may not utilize self-help remedies to recover debts from the employee’s final pay check, including deducting wages owed to an employee to cover vacation that time was used but had not yet accrued.

5. “Cliff vesting” policies are problematic.
Employers may set probationary periods or waiting periods during which employees do not accrued vacation time. However, the DLSE maintains that employers may not maintain a policy granting employees a lump sum of vacation upon reaching certain dates. The DLSE’s view on this type of “cliff vesting” is that the employer is really attempting to provide for accrued vacation, but at the same time is improperly attempting to limit its liability of having to pay out a pro rata share of the accrued vacation if the employee does not work until the date in which the vacation is granted to the employee. It is safer for employers to avoid these lump sum grants of vacation, and simply set a time period (i.e., the employee’s first six months of employment) that the employee does not accrue vacation.

As you can probably tell by now, California law is vastly different than Federal law and other states. It can be a trap for employers, but with some understanding of the obligations created under the law it can easily be managed.

Hope you are enjoying the final weeks of the summer.

California employers need to routinely need to review their policies and practices to make sure they are complying with intricacies that may arise in their work place.  In law school, attorneys-to-be are taught to “issue spot,” and the unfortunate litigation landscape that faces California employers, business owners and their supervisors must also “issue spot” and make sure the unique aspects of California employment law are being complied with to avoid liability.  This Friday’s Five covers five issues employers should issue spot on a routine basis to help ensure compliance and reduce liability:

1. Reporting time pay

Reporting time pay is triggered when an employee is required to report for work, but is not put to work or is furnished less than half their usual or scheduled day’s work.  If this occurs, the employee needs to be paid for half the usual or scheduled day’s work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee’s regular rate of pay, which cannot not be less than the minimum wage.

It is important for employers to train managers and supervisors about this requirement, so that they understand the need to pay reporting time pay, or report the instance to HR to ensure the employee receives reporting time pay if they are sent home before one-half of their shift is worked.

2. Split shift pay

A split shift is a work schedule that is interrupted by a non-paid, non-working period established by the employer that is other than a meal or rest break.  So if the employee is required to work a shift, but then asked to report to a second shift over later in the same day, the employer may be obligated to pay a split shift premium.  Again, this issue is one that front-line managers and supervisors need to be trained on to ensure that split shifts are being reported to HR or other appropriate management in the company to ensure any split shift pay obligations are being paid.

3. Expense reimbursement issues

Under Labor Code section 2802, employers need to reimburse employees for any business expenses they incur in the course of completing their work for the employer.  This basic concept sounds easy in principle, but given the technology used in today’s workplaces, there can be many areas that expose employers to liability.  For example, if employees are required to work at home, have access to the internet, print reports, or send and receive faxes, the costs for completing this work should be reimbursed by the employer.  Other areas that are often litigated are cell phone reimbursement, mileage reimbursement, and reimbursement for the costs of uniforms and safety equipment.

4. Off-the-clock claims

Employers can be held liable for unpaid wages if they knew or should have known that employees were working and not being paid for the work.  Employers should establish and regularly communicate a time keeping policy to employees and supervisors.  The policy should set forth that employees always have an open door to complain to their supervisors and other managers or human resources about missed meal and rest breaks, unpaid wages, or unpaid wages.  If employees routinely acknowledge that they understand the time keeping policy and are agreeing to record their time through the employer’s system, this can go a long way in defending any off-the-clock claims.

5. On-Call time

Even though employees are traveling to a work site or even sleeping, if the employee is under the control of the employer, the employer may have to pay them for being on-call.  For example, the California Supreme Court held that security guards who were required to reside in a trailer provided by the employer at construction worksites would still need to be paid for the time they slept while on-call.  In that case, during weekdays the guards were on patrol for eight hours, on call for eight hours, and off duty for eight hours.  On weekends, the guards were on patrol for 16 hours and on call for eight hours.  The Court held that the employer was not permitted to exclude the time guards spent sleeping from the compensable hours worked in 24-hour shifts.  See Mendiola v. CPS Security Solutions, Inc.

Likewise, in Morillion v. Royal Packing Co., the California Supreme Court held that, “we conclude the time agricultural employees are required to spend traveling on their employer’s buses is compensable under Wage Order No. 14-80 because they are ‘subject to the control of an employer’ and do not also have to be ‘suffered or permitted to work’ during this travel period.”  Generally, travel time is considered compensable work hours where the employer requires its employees to meet at a designated place and use the employer’s designated transportation to and from the work site.