There is no California law requiring a business to pay its employees for time off work, whether for vacation, holidays, sick time, or any other reason. However, employers do commonly have policies and plans that provide such compensation. Once a company opts to provide any such benefits, California does have applicable law depending on just what sort of “time off” is involved.

California defines “vacation pay” as a form of wages that an employee earns (“accrues) as the working year progresses. For example, if an employer has a policy granting a worker two weeks of paid vacation per year, that employer will have earned half of that benefit (one week of paid vacation) after having worked six months of that year. This means that a business must on termination pay an employee all of his or her accrued but unused vacation pay (no “use-it-or-lose-it”).

On the other hand, California defines “sick leave” as a non-accruing benefit. For example, a company policy that specifies four paid sick days per calendar year obligates the business to pay that benefit only to the extent that an employee actually uses it in that year. Come the next calendar year, the potential benefit renews but it does not accrue (mount-up) over time. Thus, sick pay in California is “use-it-or-lose-it.

Some employers opt to combine sick leave and vacation benefits into a single time block commonly referred to as “paid time off” or “PTO.” Such policy permits the employee to choose when and for what purpose he/she will utilize the allotted paid time away. However, California requires that all such PTO time is an accruing, earned throughout the year” wage-benefit. Thus, as with a straight vacation policy, an employer must pay pay an employee on termination all of his or her accrued but unused PTO (again, no “use-it-or-lose-it”).

There is much more to a sound vacation pay or PTO policy on which a knowledgeable employment lawyer can help. For instance, a company’s written rules can (and should) define a maximum limit for such accrued benefit, after which the employee must actually take such paid time off before he/she can resume earning such vacation pay or PTO. Otherwise, a company could face an employee leaving after, say, 20 years of service with a legitimate claim for immediate payment of an equivalent duration of accrued vacation that the person never bothered to take in all those years. See, “Vacation Pay in California, No Picnic for Employers Who Don’t Know the Rules.”

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A company’s required uniforms for its workforce can provide a more professional image and an espirit de corps and comradery among employees. While the federal law permits employers to require workers to finance their own mandatory uniforms under certain circumstances, California requires businesses to foot the bill.

The U.S. Fair Labor Standards Act allows employers to make wage deductions for mandatory uniforms as long as those deductions don’t reduce employees’ regular pay below the federal minimum wage of $7.25 per hour.

On the other hand, the California Labor Code section 2802 specifies that if an employer requires that an employee wear a uniform, the employer must pay the cost of that uniform.

An experienced employment law attorney can help guide business owners and human resources managers through further fine points on this issue.

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It would seem too obvious to have a policy that workers must show up in order to keep their jobs and to be paid. Perhaps it is, but it’s still not a bad idea to issue clear written directives expecting attendance, specifying work days and working hours, and setting procedures for employees to notify the business when they are unable to keep the schedule.

The policy should provide examples of reasonable, legitimate circumstances for absences, including illness or family emergency. Some companies also specify bonuses for wellness, i.e, consistent attendance and productivity.

Some basic elements are:

• Employee work hours – Define a work day, including the times for start, meals, and ending work. Define the schedules for each shift if the company has more than one. The policy should also inform workers of their rights to take paid breaks;

• Define lateness – Be clear about what constitutes lateness (including any few “buffer zone” minutes) and the procedure for notifying a manager if one is going to be late;

• Family Medical Leave Act (FMLA) (federal), California Family Rights Act (CFRA) – A business with 50 or more employee must comply with these laws and should have written policy covering qualifications for such leaves and the applicable procedures.

• Pregnancy Leave: A California business with five or more employees must provide unpaid leave benefits for pregnant women and new moms. Written policy should describe the requirements and procedures compatible with the law;

• Leave of absence – A company that chooses to provide unpaid leaves of absence should of course issue policy on the criteria and other rules;

• Discipline and consequences – The policy should also specify the company’s ability to decide the consequences for attendance policy violations. The standard should not be set out in stone, i.e., a business should not specify some set discipline for an infraction since circumstances are almost always going to vary. It is of course a given that an employer’s disciplinary actions cannot discriminate on the basis of gender, older age, and the host of other protected classifications.

For assistance in creating a workable, legally sound attendance policy, contact an employment law attorney.

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In February, 2013, the California Supreme Court decided that even where illegal discrimination (e.g., racial, gender, age, religion) was one of a number of motivating factors in terminating a worker, the employer will not be liable for damages if it can show the business would have fired that person in any event for non-discriminatory reasons.

Wynona Harris v. City of Santa Monica was the Supreme Court’s long-anticipated decision in a “mixed motive” case, where a defendant employer is found to have terminated someone for improper, discriminatory reasons as well as legitimate business purposes.

Ms. Harris was a newly hired bus driver for the city. She had a rocky start, including two accidents and two unexcused latenesses or no-shows. Under the city’s point system, termination was warranted.

While her supervisors were deciding whether to fire Ms. Harris over these offenses, she announced she was pregnant, a circumstance protected against discrimination by California’s Fair Employment and Housing Act (FEHA). See, e.g., Bowles Law Office blogs “Pregnancy Disability Leave, California Employers’ Obligations” and “Expanded Pregnancy Health Benefits Law for Most California Employees.” The city nevertheless terminated Ms. Harris a few days later, citing the above performance problems. She sued Santa Monica for pregnancy and sex discrimination under FEHA.

At trial, the judge directed the jury that the city was liable for discrimination if the employee-plaintiff was able to prove that her pregnancy was a “motivating factor/reason for the discharge.” The jury then found that Harris’s pregnancy had in part motivated the city to terminate her, awarding her $177,905 in damages and $401,187 in attorneys’ fees.

However, the Supreme Court found the trial judge’s jury instruction had been mistaken. The court resolved that if the city can prove it would have terminated Ms. Harris even if she had not been pregnant at the time, then she will not be able to collect damages nor be reinstated. While this poses a significant new barrier for plaintiffs to receive compensation for emotional distress or lost wages resulting from a “partly discriminatory” termination, the decision still permits injunctions and attorney fee awards against employers in such a “mixed motive” case. Obviously, no employer is immune from complying fully with prohibitions against unlawful discrimination.

For help on how this decision might impact your business, please contact our firm’s attorneys Tim Bowles or Cindy Bamforth.

(Photo by Paul Sakuma, Associated Press)

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The IRS updates annually the reimbursement mileage rate for an employee’s business use of his or her vehicle. The rate has increased from 55.5 cents in 2012 to 56.5 cents per mile in 2013.

The government determines the mileage rate by a study of the fixed and variable costs of operating an automobile, including of course gas prices.

For more details on required reimbursements to employees for business purposes, visit IRS.gov. That site includes the statement: “Taxpayers always have the option of calculating the actual costs of using their vehicle rather than using the standard mileage rates.”

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As raised in several recent class action suits against retail giants Wal-Mart, Home Depot and others, California requires “suitable seating” for certain employees.

California Industrial Welfare Commission Wage Order 7-2001, section 14, covering retail businesses, states:

(A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of such seats.

(B) When employers are not engaged in the active duties of their employment and the nature of their 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.

While this retail business wage order does not require that all employees must be able to sit at any time, it does require that employees be allowed to sit down if the nature of their work reasonably permits the use of seats.

Eligible workers do not need to first request seating from their employers in order to bring a claim under Wage Order 7. Thus, California retail employers should be proactive on providing reasonable seating, supported by adequate policy consistent with the above requirements, (A) and (B).

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As an employer, you might assume the company is immune from any wrongful termination claim if an employee quits on his or her own accord. However, a worker may still prove a business is responsible for wrongful “constructive discharge” even when he or she has deliberately resigned the employment.

Wrongful constructive discharge occurs when an employee is “forced“ to quit because the employer has unlawfully made working conditions unbearable. For example, an employee may complain about a possibly unsafe or improper working condition. The employee might even be mistaken about the issue, based on faulty information. If, as a result of the complaint, that worker experienced management’s continued harassment, discrimination or other unfair treatment to the degree that a reasonable person in that worker’s position would have found no alternative but to quit, the company may be liable.

A business is also prohibited from constructively discharging a worker due to that employee’s race, national origin, gender or any other classification protected from discrimination by federal and/or state law. A worker constructively discharged for such reasons has the right to claim and collect damages under workplace anti-discrimination laws, including the federal Civil Rights Act of 1964 (also known as “Title VII”) and/or the California Fair Employment and Housing Act (FEHA).

While an employee who resigns is usually not qualified to receive unemployment benefits, a worker who can show he or she was constructively discharged is an exception.

However, the applicable laws do not grant a blank check to every worker who has quit because he or she considers the employer was harsh or unfair. First, the harshness or unfairness has to stem from the worker’s exercise of protected rights or from his or her membership in a classification protected by law (race, disability, sexual preference, religion, etc.). Second, the employee has a corresponding duty to seek all reasonable resolution of such perceived harassment or discrimination that is internally available in the company. Wrongful constructive discharge occurs only where there is no reasonable alternative to solve the retaliation except to resign. This of course makes clearly written complaint policies and a personnel department skilled in handling such complaints essential.

There is a great deal more to the subject. See, for instance, our article, “Forced to Quit? A California Employment Lawyer’s Perspective on Constructive Discharge.” For help on handling or responding to specific potential or actual wrongful constructive discharge claims, contact an attorney who specializes in employer defense.

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The California Supreme Court has ruled that the state’s overtime requirements apply to work performed in California by non-residents. In Sullivan v. Oracle Corp., three non-resident Oracle employees worked in California as instructors and trained Oracle’s customers in the use of the company’s products. They sued the California-based company for underpayment of compensation under this state’s overtime rules (employers must pay premium rates after more than eight hours of work in a day or 40 hours in a week). Oracle asserted California’s laws did not apply as these employees worked primarily in their home states (Colorado and Arizona), traveling to California only on occasion.

The California Supreme Court sided with the plaintiff-workers. Due to California’s strong policy on protecting employee compensation, this state’s overtime rules apply to anyone performing substantial work within the state, regardless of his or her state of residency. (In this case, the employees performed labor in California for days or weeks at a time. The court noted it was not addressing the situation where an out-of-state employee, say from Las Vegas, enters and leaves California as part of a single workday.)

The court’s decision is also limited to overtime laws and does not address whether employers must also take care to ensure they comply with California’s other labor laws for non-resident employees, including time card or pay stub requirements and many others.

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Whether an employee’s visible tattoo or body piercing stems from a claimed sense of aesthetics, rebellion or “it seemed like a good idea at the time,” business has discretion to regulate appearance and thus may usually decline to hire, fail to promote or terminate that person on that basis alone.

As long as the policy is based on reasonable grounds of acceptable appearance for the particular industry or business involved, an employer may impose different standards for men and women. For instance, a professional law or accounting office would likely be able to prohibit earrings for men when permitted such jewelry for women.

However, companies must take care to seek reasonable accommodation of visible tattoos (“body art”) or piercings arising from religious belief and practice. Employers must also apply such policies consistently to prevent other possible claims of unlawful discrimination. For example, a company prohibiting visible tattoos on just lighter skinned employees is probably setting itself up for a racial or national origin discrimination suit.

Contact a labor and employment attorney for assistance creating a “uniform” appearance policy (pun intended) and for applying that policy where an employee has raised a religious or other seemingly legitimate objection.

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