Business Law, employment law, Legal

What To Do When Firing an Employee in California

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 from 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.

Business Law, employment law, Legal

What Small Businesses Should know about Meal Break Waivers

Many California employers know that anytime an employee works a 8 hour shift, that must include an UNPAID meal break and a two 10 minute PAID rest breaks. What about when an employee doesn’t work 8 hours and doesn’t want to take a meal break? Under California law, there is an option to waive that break.

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.

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.

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.

Business Law, employment law, Legal

Let’s Make Everyone An Independent Contractor!

Although the idea of converting all employees to Independent Contractor to avoid Wage and Hour headaches as well as payroll taxes sounds like Manna from heaven, it guarantees that you will be found liable for violations under California Employment laws.

Mislabeling a worker as an independent contractor creates potential liability for employment taxes and penalties, and liability for failure to fulfill the many legal obligations owed to an employee, such as wage and hour requirements. California courts have decided several cases about who is, or is not, an independent contractor. Cases have been brought for failure to pay overtime, as well as for other labor code violations.

California administrative agencies, the federal Department of Labor (DOL) and the Internal Revenue Service (IRS) closely scrutinize alleged principal/independent contractor relationships to ensure that those relationships are not, in reality, employer/employee relationships. Enforcement efforts to combat misclassification are on the rise.

Challenges to the legitimacy of an existing independent contractor/principal relationship can arise in many forms, including:

  • Filings for unemployment insurance (UI) benefits
  • Claims for unpaid wages
  • Claims for workers’ compensation
  • Charges of employment discrimination
  • Investigations by the IRS, the DOL, the Department of Industrial Relations (DIR) and Employment Development Department (EDD) to audit wage payments, workers’ compensation coverage and Unemployment Insurance Fund contributions

Willful Misclassification

It is unlawful for any person or employer to “willfully misclassify” an individual as an independent contractor. The law also prohibits employers from charging a misclassified independent contractor for goods, materials, space, rental, services, government licenses, repairs, equipment maintenance or fines that arise from the individual’s employment, if the charges would have violated the law if the person had been an employee.1

Willful misclassification means: “avoiding employee status for an individual by voluntarily and knowingly misclassifying that individual as an independent contractor.”

The civil penalty for violation of this law ranges from $5,000 to $25,000 for each violation. Other remedies include requiring the employer to display on its website or in the workplace a notice of the serious violation of misclassifying an independent contractor, a statement that the employer has changed its business practices in order to comply with the law, and information on how to contact the California Labor and Workforce Development Agency to report misclassification.

The notice must be posted for one year, and signed by an officer of the employer.

The law also imposes joint liability on a person who is retained to assist with classification and who knowingly advises an employer to treat an individual as an independent contractor to avoid employee status. Joint liability does not apply to a licensed attorney or to a person who provides advice to his or her own employer. Joint liability would apply to a non-attorney outside consultant.

These civil penalties are in addition to any fines or taxes owed to the DOL, IRS or the EDD or any unpaid wages owed to workers.

Defining Independent Contractor

California labor law defines an independent contractor as “any person who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished.”2

An independent contractor works for another entity under a verbal or written contract, usually for a specific length of time. The independent contractor is responsible for only his/her own work, and is generally responsible for his/her own schedule. The independent contractor must also be responsible for how the work is completed.

  • You should assume all workers are employees unless they clearly meet all legal requirements and pass all tests various federal and state agencies use for proper classification of independent contractors. Consultation with legal counsel is usually warranted.

employment law, Legal

Pay Days For Hourly and Exempt Employees

payday word circle marked on a calendar by a red pen

How often and by what dates am I required to pay employees?

All wages for the normal work period for non-exempt employees must be paid at least twice each calendar month on days designated in advance by the employer.

For work performed between the 1st and 15th days of the month payment must be made by the 26th day of the same month. For work performed between the 16th and last day of the month payment must be made by the 10th day of the next month.

An employer also may choose to pay employees weekly, bi-weekly or semi-monthly with payment within seven days of the end of the pay period.

Even when an employee fails to turn in a record of time worked, the employer remains legally obligated to pay the employee on the established payday.

Salaries of executive, administrative and professional employees may be paid once a month on or before the 26th day of the month.

What are the payday requirements when an employer is closed?

Occasionally, the designated payday will fall on a holiday or on another day that the employer may not be open for business. The question then becomes: When are the employees required to be paid?

If the employer is closed on a Saturday, Sunday or holiday, which happen to be the designated payday, the employer may pay wages on the next regular workday.

What is the penalty for failure to pay wages on payday?

The penalties are costly, and inability to pay is not considered a defense for failure to meet the payday.

Civil Penalties

When an employer fails to pay wages (as required by Labor Code Section 204) on a regular payday, the employer, under Labor Code Section 210, is subject to a civil penalty for each such missed payday.

The initial penalty for failure to pay wages is $100 per employee per missed payday. So if your company has 25 employees, the potential civil penalty is $2,500.

Civil penalties for subsequent missed paydays are much more severe. The penalty is $250 per employee, plus 25 percent of the amount unlawfully withheld.

Most penalties required by the Labor Code and the Industrial Welfare Commission Wage Orders go to the employees; however, payday penalties go to the state of California. These penalties may be recovered by the Labor Commissioner through a hearing process outlined in Labor Code Section 98(a) or by going directly to the courts.

Labor Code 1194.2 provides for recovery of wages because of nonpayment of the minimum wage. An employee can recover liquidated damages in an amount equal to the wages unlawfully unpaid and interest thereon. The Labor Commissioner may assess liquidated damages based on the current minimum wage multiplied by all unpaid hours in the pay period (except overtime hours).

Business Law, employment law, Legal

Minimum Wage in California

State Minimum Wage Requirements

The state minimum wage will reach $15 per hour in 2022. The schedule of increases depends on the size of your business. Large businesses with 26 or more employees will reach $15 per hour in 2022. Small businesses with 25 or fewer employees will have until 2023 to reach the $15 per hour rate.

Dates
Employers With 26 or More Employees
Employers With 25 or Fewer Employees

1/1/18

$11/hour

$10.50/hour

1/1/19

$12/hour

$11/hour

1/1/20

$13/hour

$12/hour

1/1/21

$14/hour

$13/hour

1/1/22

$15/hour

$14/hour

1/1/23

$15/hour*

$15/hour*

 

*Once the minimum wage reaches $15 per hour for all businesses, wages could then be increased each year up to 3.5 percent (rounded to the nearest 10 cents) for inflation as measured by the national Consumer Price Index.

Until the minimum wage reaches $15 per hour, the governor has the authority to suspend increases based on current economic conditions. These “offramps” are discretionary and would come into play only if there are declining state revenues from sales tax; there is a decline in the labor market; or there is a budget deficit (this offramp is permitted to occur only twice).

Employers should be mindful of the effect of future state minimum wage increase on exempt/nonexempt classifications and ensure that employees meet the salary basis test for the particular exemption claimed.

In 2018, employers with 26 or more employees must pay all work that qualifies for overtime at $16.50 per hour (time and one-half) or $22.00 per hour (double-time).

Employers with 25 or fewer employees must pay $15.75 per hour (time and one-half) or $21 per hour (double-time).

Some cities and counties in California have adopted their own local minimum wage rates that are separate from the state rate. This is part of a growing trend. Eligibility rules may vary from city to city. If a local ordinance provides for a higher minimum wage rate than the current state rate, the local rate must be paid.

Effective July 1, 2018, the minimum wage for Los Angeles is $12 per hour for employers with 25 or fewer employees working in the City. Future increases are as follows:

Effective Date
City of Los Angeles Minimum Wage (Per Hour)

7/1/2019

$13.25

7/1/2020

$14.25

7/1/2021

$15

7/1/2022

Increases tied to the Regional Consumer Price Index

Business Law, employment law, Legal

What You Need to Know About Travel Time Pay in California

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TRAVEL TIME VS COMMUTING TIME: WHAT IS THE DIFFERENCE?

But before we delve into the topic, let’s make sure that you understand the difference between commuting time and travel time. The former refers to an employee’s personal time spent to commute back and forth from work to home, while travel time is time spent traveling by an employee for work-related activities.

Under California employment laws, travel time should be paid, and can be either local trips or travel away from home.

ARE YOU ELIGIBLE FOR TRAVEL TIME PAY?

You are eligible to receive pay for local travel time only if you are a non-exempt employee (meaning: you are employed on an hourly basis). Exempt employees, who are paid based on their performance and expertise, are not entitled to travel time pay.

For non-exempt employees, travel time – as well as education and training time – are classified as “working hours,” which means their employers are legally required to pay them for it.

If you are asked by your employer or supervisor to drive to a store to pick up some items during normal work hours, you should be paid for your travel time.

TIME SPENT TRAVELING AWAY FROM HOME

An employer in Los Angeles and elsewhere in California is required to compensate his employees for any time spent traveling away from home. Let’s say, for example, that your employer directs you to attend a two-day event in New York City. Since you will have to spend time traveling from Los Angeles to New York City, your employer should pay travel time.

HOW TO CALCULATE TRAVEL TIME PAY?

Calculating travel time pay for salaried employees, who get paid bi-weekly or monthly, is not a problem, since they get paid regardless of the number of hours worked.

Hourly employees, meanwhile, should be paid on an hourly basis, which means travel time may not be as easy to calculate. It is highly advised to speak to an employment law attorney to find out whether or not travel time pay was calculated properly in your particular situation.

IS ONE-DAY OR OVERNIGHT STAY PAID?

If you have not been for a one-day or overnight stay, seek immediately legal advice of a lawyer. While hourly employees in Los Angeles and elsewhere in California are generally required to receive travel time pay in these situations, there are certain exceptions. That is why you should speak to an attorney to learn more.

SHOULD YOUR EMPLOYER COMPENSATE FOR TRAVEL EXPENSES?

Definitely. Travel time itself is not the only thing that an employer pays for. Travel expenses should be compensated by your employer, as employees can generally deduct unreimbursed travel expenses. In case you are traveling for both work-related activities and personal travel, you will have to keep separate checks for business-related expenses.