With the start of 2019, I’m writing a series of posts covering employment law areas that employers should audit on a routine basis.  The first two articles covered hiring practices and records retention practices.  This post covers five wage and hour considerations that every California employer should review on a routine basis:

1. Payroll

  • Are the company’s workweeks and paydays established?
  • Are paydays within the applicable time limits after the pay period as required under the law?
  • Are employees provided with compliant itemized wage statements?
  • Are employees provided a writing setting out their accrued paid sick leave each pay period?
  • Is vacation properly documented and tracked?

2. Wages

  • Are all deductions from the employee’s pay check legally permitted? (use caution, very few deductions are permitted under CA law)
  • Are employees reimbursed for all business expenses, such as uniforms, required cell phone use, work equipment and miles driven for work?
  • Are employees provided their final wages according to California requirements?  For example, employees terminated must receive their wages (including all accrued and unused vacation) at the time of termination.  More information on the timing requirements for final paychecks can be read here.

3. Employee Classifications

  • Are employees properly classified as exempt or nonexempt?
    • For exempt employees, review their duties and salary to ensure they meet the legal requirements to be an exempt employee.
  • Any workers classified as independent contractors, and if so, could they be considered employees?

4. Timekeeping

  • Are nonexempt employees properly compensated for all overtime worked?
  • Is off-the-clock work prohibited?
    • Policy in place?
    • Are managers trained about how to recognize it and what disciplinary actions to take if find employees working off-the-clock?
  • Does the company’s timekeeping system round employee’s time?
    • If so, is the rounding policy compliant with the law?

5. Meal and rest breaks

  • Are meal and rest period policies set out in handbook and employees routinely reminded of policies?
    • Are meal and rest breaks provided on a timely basis?
    • Does the company pay “premium pay” for missed meal and rest breaks? If so, how is this documented on the employee pay stub?
    • Do employees record meal breaks?
    • Are managers trained on how to administer breaks and what actions to take if employees miss meal or rest breaks?

The next article in this series will addresses end of employment issues.  Have a great weekend.

Employee terminations and resignations must be planned for in advance to avoid common pitfalls for California employers.  I’ve recently written about go-to hiring practices for employers, so I thought it would be appropriate to follow that post up with this list of go-to termination practices.  This Friday’s Five focuses on critical management and legal considerations for employers during the separation process:

1. Documentation of the reason for termination

What is the reason for termination? Is there a company policy that was violated? [Note: Is the company policy in writing?  Has it been distributed to the employee?  Is there a signed acknowledgement of the policy in the employee’s file?]  Who was involved in termination decision? Review documentation for termination if “for cause” and ensure this documentation is maintained in personnel file.

2. Final pay and accounting

Employers need to prepare the employee’s final paycheck and ensure that any unused accrued vacation time is also included.

Final wages must be paid within certain time limits, including the following:

  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, is at the office of the employer within the county in which the work was performed.

Employers should also review if commissions, bonuses, or expense reimbursement owed to employee?  Obtain all expense reimbursement forms form employee.

Employers with multiple locations need to ensure that the final wages are made available.  The place of the final wage payment for employees who are terminated (or laid off) is the place of termination. The place of final wage payment for employees who quit without giving 72 hours prior notice and who do not request that their final wages be mailed to them at a designated address, is at the office of the employer within the county in which the work was performed. Labor Code Section 208.

 3. Company property and passwords

Obtain all company property from employee and reset passwords.  Also, has employee returned all company provided uniforms?  Have all company keys been returned?  The company should also develop a list of all passwords employee had access to and ensure the passwords are reset.

4. Final notices

Employers need to ensure that all required notices are provided to the employee.  For example, common notices include:

  • Notice to Employee as to Change in Relationship (download here)
  • For your Benefit (Form 2320) (download here)
  • COBRA and Cal-COBRA Notices from insurance provider
  • Notify insurance provider
  • Health Insurance Premium (HIPP) Notice (download here)

5. Retention of employee files

Employers need to take measures to secure and save employee’s file, wage, and time records.  For more information, see my prior post, Five best document storage and retention practices for California employers.

This week’s Friday Five is a discussion focused on a discussion of considerations employers should make during the termination process, such as:

  • how to document reasons for terminations (and why it is important to be accurate and honest)
  • when final wages are due
  • where to provide final wages
  • payment of expense reimbursements, and
  • direct deposit of final wages

Happy Friday!  This Friday’s Five focuses on the termination process.  Employers should develop a termination checklist to ensure all documents and contingencies are consistently covered during the process.  Here are five pointers employers can use to start in developing their own checklist:

1.      Final wages must be timely paid.

The employee’s wages must be paid at the time of termination.  In addition, employers are required to pay the employee all accrued but unused vacation in this final paycheck.  In addition, other items employers should review to ensure they are timely paid:

  • Expense reimbursement for business expenses
  • Commissions
  • Non-discretionary bonuses or profit sharing agreements

2.      Provide all required forms to employee at separation.

To the surprise of many employers, there are many forms that employers are required to provide to employees at the time of termination.  Here is a non-exclusive list of some of the routine forms required:

Employers should take time to review their obligations and forms that are required for their particular industry or situation.

3.      Communications about the terminated employee with others in the company and outside of the company. 

In order to prove a libel or slander claim, the employee must prove: (1) false communication; (2) unprivileged statement of fact (not opinion); (3) it was made about the plaintiff; (4) published to a third party; and (5) caused damage to the plaintiff.  More information about liable for slander claims can be read here.

Employers should take appropriate measures not to discuss the circumstances surrounding why an employee left the company with people within the company that do not have a need to know.  In addition, employers need to be very careful in how they communicate with anyone outside of the company about the employee’s work at the company.  To avoid any potential claims, many employers restrict what information they will provide for reference checks (even for employees who were good and left on good terms) to the employee’s dates of employment, and if authorized by the employee, the employee’s last rate of pay.

4.      Consider if a severance agreement would be appropriate.

Offering an employee some severance pay may cost the company money in the short-term, but could save a lot of time and money in the long run. If the employer believes that there is a potential dispute with the employee, the employer may choose to pay some severance in exchange of a release of claims by the employee in order to avoid any potential litigation.  If done properly, an employee’s acceptance of a severance agreement would effectively waive any and all claims against the company.  If there is any potential for a dispute about any issues that arose during employment, entering into a severance agreement could be an effective way to avoid costly and time consuming litigation.  I’ve previously written about five common questions about severance agreements here.

5.      Have an attorney review the process.

If the termination has any type of complicated issue, of if the company is going to over a severance agreement, an employment lawyer familiar with the law should be consulted.  It is also helpful to discuss a termination with an employment lawyer to see if there are any other potential issues that the employer may not have considered, and develop a strategy to deal with the issues at the time of termination, and not during litigation.

As we approach the close of 2015, employers should take the time to review their employment law policies and practices.  I’m often asked where should the process start?  Here are five areas employers can focus on to start the audit process:

1.      Employee handbooks

Employers need to ensure their policies are up to date, and a few areas that saw updates that may need attention in regards to employee handbooks are the revisions to California’s paid sick leave, the enforceability of arbitration agreements that contain class action waivers, and equal pay protections.

Employers should review new laws taking effect in 2016 to ensure compliance.

2.      Ensure compliance with minimum wage increases

California minimum wage increases to $10 per hour effective January 1, 2016.

Employers need to remember that the state minimum wage also sets the salary basis for exempt employees, and therefore the minimum salary that must be paid to exempt employees will also be increasing.

3.      Wage and hour issues

There are so many wage and hour areas that employers need to ensure compliance with, but here are few to help start the audit process:

4.      Meal and rest breaks

Even though it is widely known by employers of their obligations to provide meal and rest breaks, there is still substantial litigation over this issue.  Therefore, employers should continually review their meal and rest break policies and practices to ensure compliance with the law.  To start, here is a link to a previous article about five things California employers should not forget about meal and rest breaks.

5.      Correct information is listed on employee pay stubs and new requirements for piece-rate employees

Employers should ensure their pay stubs provided to employees comply with the requirements of Labor Code section 226.  The DLSE provides a sample of what information a compliant pay stub should list for an hourly employee, but don’t forget about the requirement to report an employee’s accrued paid sick leave.

Employers should especially conduct this review if they paid employees on a piece-rate basis.  A new law, AB 1513, adds various Labor Code sections and places new requirements on employers who pay on piece-rate basis.  The law now mandates that employers pay piece-rate employees separately for the following activities:

  • Rest breaks
  • Recovery periods (for employees who work outside)
  • Non-productive time (defined by the law)

The law requires employers to calculate the regular rate of pay for each workweek, and then pay the piece-rate employees the higher of this regular rate of pay or the applicable minimum wage for rest break time.  The law also requires employers to pay piece-rate employees for “nonproductive time” which is defined as “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.”  The nonproductive time is required to be paid at a rate no less than the applicable minimum wage rate.  Employers paying employees on a piece rate basis should review the new obligations with an employment law attorney to ensure compliance.

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

Is your company in an industry that is likely to be targeted by the Department of Labor (DOL) for FLSA violations, or by the California Labor Commissioner for California Labor Code violations? A review of the Department of Labor’s Wage and Hour statistics for fiscal year 2014, in connection with California’s Division of Labor Standards Enforcement most recent reporting for 2012-2013, establishes a clear pattern of industries that are targeted for wage and hour violations:

  1. Restaurants
  2. Garment manufactures
  3. Guard services
  4. Car washes
  5. Agriculture

Here is a summary of the DOL’s statistics:

DOL 2014 Statistics

Here is a summary of California’s DLSE’s most recent statistics:

DLSE 2012-13 wages collectedWhile there are some differences between the two agencies’ statistics, restaurants lead both lists. It is also important to note that not every business can fit into these predetermined categories (note that the “other” category in the DLSE’s lists is very large), so there are many other industries affected.

It is also important to note the amount collected from the various industries that the DLSE found was due. According to the DLSE, the worse collection efforts was in the garment industry, with only 2.8% of the wages found to be due were actually collected. The next lowest collection rate per industry was in the car wash industry at only 10% collection rate. It is important to review these collection rates, because it is informative about how the DLSE or DOL will view your particular establishment when investigating potential claims. The lower collection rates are probably due to the result of the employer’s simply going out of business or taking other steps to avoid collections of the penalties and fines, or what I refer to as the bad actor presumption (rightly or wrongly).

Bad actor presumption (rightly or wrongly)
Imagine if you were in charge of collecting the penalties issued by the DLSE or DOL, these collection figures would color your view of employers operating in these industries. Going into the investigation, the government already has a predisposition that certain employers are more likely to have violations, and then when told they must pay fines, the employer likely to still simply refuse to abide by the determination. I’m not making a presumption that these penalties and fines were rightly or wrongly issued, but am only commenting about how these numbers skew the view from the perspective of the governmental agency. The agencies go through the process of making a determination and issue a citation, and then even after the determination has been made and the employer had an opportunity to appeal the agencies’ determination, the employer still refuses to pay the citation. In effect, employers therefore are harming the reputation of every business operating in that industry, and make it more difficult to overcome the predisposition the investigator has about the particular industry.

This illustrates the importance of companies operating in these targeted industries to be especially vigilant about compliance with Federal and California employment laws. An employer can gain a higher level of credibility with the investigator if they can show compliant policies, good record keeping, and proper payment of wages. Next week I will discuss violations most likely to be assessed by the DOL or the DLSE.

There is always a lot of attention paid to what notices and forms should be given to new-hires. However, today’s Friday’s Five post I want to focus on the documents that should accompany an employee’s separation from employment:

1. Paycheck for all hours worked until separation including all accrued but unused vacation time.
Generally, the paycheck must be provided at the time of termination or within 72 hours if employee quits without providing 72 hours’ notice. Here is a more detailed article I wrote on the topic previously.

2. Notice to Employee as to Change in Relationship
California Unemployment Insurance Code 1089 requires that employers provided separated employees with written notice of the employee’s change in relationship with the employer.

3. “For Your Benefit, California’s Program for the Unemployed” pamphlet published by the EDD (Form 2320)
This form published by the EDD is required to be provided to any employee who is being laid off, terminated, or placed on a leave of absence on the last day of employment.

4. COBRA and Cal-COBRA Notices.
Employers should obtain these forms through your health insurance provider.

5. Health Insurance Premium (HIPP) Notice (DHCS 9061)
For employers with 20 or more employees, the Department of Health Care Services requires that employers provide terminated employees with the Health Insurance Premium Payment (HIPP) notice.

This Friday’s Five is coming out a little late in the day, but as they say, better late….  I’ve been fielding a lot of questions about final wage payment requirements.  So here are five rules every employer should know about 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, is 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 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 thirty calendar days.