Paid Family Leave
An employee who is on leave from work to care for a sick family member or to bond with a new child may receive benefits to replace a portion of wages that are lost as during the leave of absence. Although paid family leave does not create an additional right to a leave of absence, employers have a duty to advise every employee of his/her right to paid family leave rights by: (1) posting the state notice advising employees of these rights and (2) providing all hires with the state-published pamphlet describing these rights.

Sick Leave
Although California employers are not required to provide sick leave, those that do must allow employees to use up to half of their sick leave to care for a sick child, spouse or domestic partner.
An employee may utilize sick leave for their own illness or to provide care for a sick child, parent, sibling, grandparent, grandchild, spouse or domestic partner.

School Activities
Employers with 25 or more employees must also allow parents to take up to 40 hours off per year to participate in activities of his or her child’s school or day care facility. Regardless of its size, every employer must allow the parent of a child who has been suspended from school to take time off if he/she needs to appear at the school regarding the suspension.

Time Off To Vote
Employers must allow every employee, with prior notice, to take off up to two hours of working time at the beginning or end of the regular working shift to vote in any statewide election.

At the conference, the employer should be prepared to talk with the deputy about the claim, including whether there are any witnesses; however, the employer does not need to bring witnesses to the conference.  Also, the employer should also bring any documents that support its position.  If the employer fails to appear at the conference, the claim will scheduled for a hearing.  If the employee fails to appear, the claim will be dismissed.  In the event that the case is not resolved at the conference, the deputy will refer the case to a hearing or dismiss the case if he/she finds no legal basis to proceed.  (Labor Code § 98(a))

Once a hearing is scheduled, the employer will receive a document entitled Notice of Hearing, which will set the date, time and place of the hearing.  At the hearing, the parties and witnesses testify under oath, and the proceedings are recorded.  The employer has the following rights at the hearing:

1. To be represented by an attorney or other party of his or her choosing.

2. To present evidence.

3. To testify in his or her own behalf.

4. To have his or her own witnesses testify.

5. To cross-examine the opposing party and witnesses.

6. To explain evidence offered in support of his or her position and to rebut evidence offered in   opposition.

7. To have a translator present, if necessary.

The employer must bring all documents that will support its position to the hearing.  An employer who intends to introduce business records into evidence should also bring a person to the hearing who can explain how such records were prepared.  The originals of all documents, if available, should be brought to the hearing plus two sets of copies.  In order to call witnesses to testify, the employer may arrange for the witnesses to attend voluntarily or may request issuance of a personal subpoena to compel their attendance.

Subpoenas for documents, records or witnesses must be issued by the Labor Commissioner.  Applications to the Labor Commissioner for issuance of subpoenas should be made at least fifteen (15) business days prior to the date of the hearing.  These applications should be submitted on a form entitled Information for Subpoena.   Costs incurred in the service of a subpoena, witness fees and mileage will be borne by the party requesting the subpoena.

Changes in the date, time or place of the hearing will not be granted except upon the showing of extraordinary circumstances. The decision to grant such a request is within the sole discretion of the hearing officer and senior deputy, and will be rare.  If the employee fails to attend the hearing, the case will be dismissed.  If the employer fails to attend the hearing, the hearing officer will decide the matter on the evidence he/she receives from the employer.

Within fifteen (15) days after the hearing, the hearing offer will serve the parties with a document entitled Order, Decision or Award (“ODA”) of the Labor Commissioner.  The ODA will set forth the decision and the amount awarded, if any, by the hearing officer.

False.  California law does not entitle an employee to paid vacations.   If an employer has an oral or written vacation policy, paid vacation time is earned by an employee on a pro rata basis for each day of work and is considered part of the employee’s wages.  As a result, paid vacation time cannot be forfeited. (Suastez v. Plastic Dress Up, 31 Cal.3d 774 (1982))  An employer, however, may place a reasonable cap on the total amount of vacation time that may be earned by an employee.  (Boothby v. Atlas Mechanical, 6 Cal.App.4th 1595 (1992))  When the employee quits or is terminated, all of the vacation time that has been earned by the employee must be paid at the time of termination.  (Labor Code § 227.3)

2.              A California employee is entitled to paid sick leave.

False.  California law does not require employers to provide paid sick leave.  Most employers, however,  participate in the State Disability Insurance Plan (SDI) by making certain payroll deductions.  These employers must give newly hired employees and employees leaving work due to pregnancy or non-occupational sickness or injury a copy of a notice of their disability insurance rights and benefits due to sickness, injury or pregnancy. (Unemployment Insurance Code § 2613)  Any employer that has a sick leave policy, must allow an employee to use part of his/her available sick leave for the illness of a child, parent or spouse.  For each calendar year, the minimum amount of available sick leave that an employee may use for the illness of a family member is the number of sick days that the employee would accrue over a six month period.  (Labor Code § 233)

3.              Every California employer must carry workers compensation insurance.

True.  Except for the state itself, all California employers must have workers’ compensation insurance to cover injuries or illnesses sustained on the job.  (Labor Code § 3700, et seq.)  An employee who suffers a work related injury or illness that requires medical treatment beyond first aid must notify his or her employer in writing within 30 days of the injury or illness, (Labor Code § 5400)

4.              A California employee is entitled to paid holiday time.

False.   California law does not require an employer to provide employees with: (1) paid time off for holidays; (2) observe any holidays, or (3) pay an employee any additional compensation for working on a holiday.

5.              A California employee is entitled to medical insurance.

False.  California law does not require an employer to provide employees with medical insurance.  Any employer who does provide employee medical benefits must give 15 day written notice prior to discontinuing any of those benefits.  (Labor Code § 2806)  A terminated employee may be entitled to continued coverage under the federal COBRA act or California’s continued coverage requirements.

6.              A California employee is entitled to severance pay.

False.  California law does not require an employer to provide severance pay to an employee upon termination of employment.

MEAL PERIODS

An employer may not employ an employee for a work period of more than five hours per day without providing a meal period of not less-than 30 minutes.  (Labor Code § 512(a))  The only exception to this rule is that, when an employee’s work day last no more than six hours, the meal period may be waived by mutual consent of both the employer and employee.

The bottom line is that employees are entitled to one thirty (30) minute duty-free meal period for every five (5) hours worked.  If an employee works more than ten (10) hours per day, then he/she is entitled to a second meal period.  If the employee’s work day is less than twelve (12) hours, then the second meal period may be waived by mutual consent.

An employer is not required to pay for a meal periods so long as the meal period is “duty-free”.  For a meal period to be “duty-free” the employer cannot require that an employee perform any duties while on a meal break. (Madera POA v. City of Madera, 36 Cal.3d 403 (1984))  An “on-duty” meal period is only permitted only when two conditions are present: (1) the nature of the work prevents an employee from being relieved of all duties and (2) the employee and employee mutually consent to on-the-job paid meal period.  If an employer requires an employee to remain at the work site or facility during the meal period, the meal period must be compensated.

If an employer fails to provide a legally required meal period, the employer must pay the employee one (1) additional hour of pay at the employee’s regular rate of pay per day.  (Labor Code § 226.7)  Since this “one additional hour of pay” is considered wages, a claim for failure to provide meal periods must be filed within three (3) years of the alleged meal period violation.

REST PERIODS

Employers are required to give each employee at least a ten (10) minute paid break for each four (4) hours worked (or major fraction of four (4) hours).   An employee who works three and one-half (3 1/2) hours or less is not entitled to a rest period.  Rest periods should be given to employees as near to the middle of the four (4) hours segment of time, as is practical.

If an employer fails to provide a rest period, the employer must pay the employee one (1) additional hour of pay at the employee’s regular rate of compensation for each workday that the rest period is not provided.  (Labor Code § 226.7)  Since this “one additional hour of pay” is considered wages, a claim for failure to provide rest periods must be filed within three (3) years of the alleged rest period violation.

CONCLUSION

                  Returning to our example of the company who fails to give rest and meal periods to its five minimum wage employees for a period of one year.  The company would owe each employee $16/day for the failure to provide meal and rest periods.  That comes to $80 per week or $4,160 for the year.  Multiplied times five, the company would owe its five minimum wages employees $20,800 for failing to provide meal and rest period for one year.