HR Differences in California
Human Resources in California
Unique Employment Labor Laws to be aware of if you have employees located in California.
As California businesses have grown, so has the number of workers attracted to this diverse state. Although many employers are physically located in other states, they often have employees who work in California and therefore need to be informed of California’s labor laws and regulations.
Legal requirements in California prevail over other state laws and in some cases supersede federal laws as well. California regulations are subject to enforcement by up to six different state regulatory agencies, in comparison other states are usually subject to only two or three. Listed below are several legal requirements that are exclusive to workers in California.
Wage & Hour Issues
As opposed to the Federal minimum wage of $7.25 per hour, California’s minimum wage effective Jan. 1, 2018 is $10.50 ($11.00 Jan. 1, 2019) per hour for employers with 25 or fewer employees and $11.00 ($12.00 Jan. 1, 2019) per hour for employers with 26 or more employees. These minimum wages also impact the minimum weekly salary that must be paid for executive, administrative, and professional employees to be exempt to avoid misclassification problems. (Two times the applicable minimum wage multiplied by 2080 hours).
Throughout the state, there are many city wages and living wages which supersede California’s state minimum wage laws. See the “Minimum Wage and Paid Sick Leave” Fact Sheet on our website under “Additional Resources.”
Wage Theft Protection Act - Required Notice
Employers are required to inform each employee of their rights by providing specific information in writing to new employees upon hire and to other employees upon request. The Labor Commissioner has developed a form that an employer may elect to use to comply with these provisions.
California Labor Code section 2810.5 requires employers to give new hired nonexempt employees a notice disclosing rate of pay, regular payday, employer name and address, and information regarding paid sick leave as applicable to that employee. Employers must also notify employees within seven days of any changes to this information. While employers are not required to use the form provided by the Labor Commissioner, it is strongly recommended that you use the form prepared by the Labor Commission available on its web site.
Timely Payment of Wages, Including Final Pay
Timely wage payment rules are very strict in California. For each late paycheck, California’s Labor Code allows the recovery of up to $200, plus 25% of the amount unlawfully withheld, per employee, per payroll period.
Employees who are involuntary discharged (fired or laid off) must be paid all of their unpaid wages, including accrued but unused vacation or paid time off, at their time of discharge. This rule applies to all employees, including those who are released after completing a specific job assignment, even if the assignment is as short as one day.
Employees who voluntarily end their employment must receive their final paycheck on their last day of employment, if they gave at least 72 hours of notice. If an employee walks off the job, the employer has 72 hours (clock hours regardless of whether your business is open for operation) to make the final paycheck available to the employee.
Failure to meet these payment rules can result in a penalty of up to 30 days of pay at the employee’s regular daily rate if the employee files a claim with the Labor Commissioner.
Pay Stub Rules
With each paycheck an employee must receive a written itemized statement (pay stub or other written documentation) with 11 separate items, such as:
• The inclusive dates of the pay period
• Name of the employee and social security number (only the last four digits)
• Name and address of the employer
• All applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee.
Employers must also show how many days of mandatory paid sick leave employees have available on the pay stub, or on a document issued the same day as the paycheck. If an employer provides unlimited paid sick leave or unlimited paid time off, the employer may indicate "unlimited" on your pay stub or other document provided to you the same day as your wages.
Failure to include all required information with each paycheck can result in penalties of $100 per employee, per violation, up to a maximum of $4,000 per employee. The risk and potential impact: Penalties up to $4,000, per employee
California law also requires employers to keep a copy of all payroll records showing the daily hours worked and the wages paid to its employees for at least three years, at the place of employment or at a central location within the State of California. The California Labor Commissioner is assessing a $250 penalty as an initial citation and a $1,000 penalty for each subsequent violation.
Common payroll deductions made by employers in other states are often unlawful in California. Examples of unlawful deductions include those taken for: uniforms, lost safety equipment, broken supplies and other business losses resulting from the employee’s simple negligence. Penalties for employers are up to $200, plus 25% of the amount unlawfully withheld, per employee, per payroll period.
Meal and Rest Periods
California has employee friendly break and lunch requirements for all nonexempt employees not heard of in other states and not required by federal law.
The timing and duration of breaks (rest) and meal (lunch) periods are very specific in California. If they are not provided as required, employers must self impose a penalty, payable to the employee, equal to one hour of the employees’ regular rate of pay. These penalty payments are considered wages and employees may recover penalties for up to four years. If the employer fails to pay the penalty on the payday for the period in which the violation occurred, employees may seek additional penalties including liquidated damages for each payday that was “underpaid”.
Properly classifying a worker as an employee or an independent contractor is an important task – failure to properly classify can lead to liability for missed meal and rest periods, overtime and other wage and hour claims and penalties. California has moved away from the “Right to Control” test most commonly used to determine if someone is an employee or an independent contractor, which focused on the hiring entity’s ability to control how the work was performed.
Instead, the California Supreme Court has found that a hiring entity, in order to prove that an independent contractor is not an employee, must establish each of the three factors embodied in the ABC test — namely, that the worker:
A. Is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;
B. Performs work that is outside the usual course of the hiring entity’s business; and
C. Is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.
This is a tough standard, and many California employers will need to take a look at any independent contractors they currently use to see if they meet the ABC test – especially take a close look at factor “B.”
Alternative Workweek Scheduling
In California, employers may create Alternative Work Weeks which allow their employees to work a daily schedule in excess of an eight hour workday and avoid overtime penalties. However, implementing an alternative workweek schedule requires a strict adherence to state guidelines. Among other things, a secret ballot vote must be passed by 2/3 of the unit that would be affected by the alternative workweek schedule. Failure to follow the correct procedures when adopting an alternative workweek can invalidate the alternative work week schedule and result in penalties of up to four years of unpaid overtime pay, interest penalties and attorney fees.
Overtime Pay Rates
California’s hourly overtime laws are much more employee friendly than other states. Not paying overtime correctly can lead to huge penalties for employers.
California employees are entitled to time-and-a-half (1.5 times their regular rate of pay) after working eight hours in a day or more than 40 hours in a work week, and double overtime pay after working 12 hours in day. In addition, California has a 7th day overtime premium on the 7th consecutive day worked in a workweek. Many of these “employee friendly” overtime laws contrast with those in other states and Federal laws which only require overtime to be paid after 40 hours have been worked in a workweek.
Misclassification of Employees
Incorrectly classifying an employee as “exempt” from overtime and meal and rest break requirements can result in up to four years of back overtime pay, plus interest and penalties.
When analyzing overtime exemptions, federal law and most state laws focus on the tasks of the job and ask whether the “primary” duty is of an exempt nature. California instead uses two primary tests to determine whether someone is an exempt employee. First employers must ensure the employee spends more than 50% of his or her time performing “exempt” duties which must include a significant amount of independent judgment. Second, they must use a salary test to ensure the employee earns at least two times the minimum wage.
Out of State Employees Working in California
Since a 2011 court decision, employees based outside of California who work in California for full days or weeks must be paid overtime based on California legal requirements while they are working in California.
Wages for Employees in the Computer Industry
Computer Software employees must earn at least $43.58 per hour, or $7,565.85 per month, or $90.790.07 per year (2019 increases: $45.41 per hour, or $7883.62 per month, or $94,603.25 per year) to be exempt from California’s overtime laws. This salary is adjusted annually according to the consumer price index.
Wages for Physicians and Surgeons
California annually adjusts the overtime exemption “salary test” for licensed physicians and surgeons. To reflect the California Consumer Price Index for Urban Wage Earners and Clerical Workers. The 2018 minimum hourly rate of pay for licensed physicians and surgeons to qualify as exempt is $79.39 (2019 increase: $82.72.).
Employers who believe their employees may qualify for any of the exemption categories need to review the requirements on the exemption worksheets to ensure employees meet both the duties and the salary test.
Leaves of Absence and Vacation Policies
Leave of Absence Laws
While most states have two or three required employee leaves of absence, California employers must provide over 20 leaves of absence to employees. Some unique examples of California Leave Laws include:
- Military Leave which allows spouses of deployed military personnel who are granted leave from “combat zones” to take time off to be with their spouse.
- Job-protected time off for parents to deal with school discipline matters, attend school or child care activities, or deal with school or child care emergencies.
- Paid time off for voting.
- California Pregnancy Disability Leave applies to employers with 5 or more employees and grants up to four months of leave to employees with disabilities relating to pregnancy. Unlike FMLA/CFRA, there is no one year service requirement
- California Family Rights Act grants pregnant women an additional 12 weeks of protected time off to bond with their child, if they are eligible for FMLA. Thus, a pregnant employee in California is eligible for up to 7 months of job protected time off.
- The New Parent Leave Act requires employers with 20-49 employees to provide eligible employees up to 12 weeks of protected time off to bond with their child.
California Healthy Families Act - Paid Sick Leave Law
ALL employers, both public and private, are required to provide paid sick leave to all of their employees, with a few exceptions. Several cities have also developed their own paid sick leave requirements that are in excess of the State’s required plan. This comes with many compliance issues including:
• Carryover and accrual requirements
• Posting requirements
• Record keeping requirements
Domestic Violence/Sexual Assault/Stalking Leave – Required Notice
Employers are required to inform each employee of their rights by providing specific information in a notice prepared by the Labor Commissioner, available in English and Spanish, to new employees upon hire and to other employees upon request.
When it comes to earned and accrued vacation, California does not allow “Use-It-Or-Lose-It” policies. Employers are allowed to put a reasonable “cap” or “cash out” policy in place. Vacation pay is considered “wages” under California laws, therefore, all accrued unpaid days must be paid out to an employee when the employment relationship ends. A final paycheck which does not include all vacation hours can result in waiting time penalties and up to 30 days of “late pay”.
Additional Requirements Exclusive to California
Harassment Prevention Training
NEW for 2019: Employers with five (5) or more employees, must provide 1 hour of harassment prevention training to all employees and two hours of harassment prevention training for all supervisors before January 1, 2020. (In the past, only employers with 50 or more employees were required to provide training and only of supervisors.). The definition of a supervisor is broad and includes anyone with the authority to direct the work of others.
Training must be repeated every two years.
Managers in the State of California can be held personally responsible for allowing harassment in the workplace to continue to occur after the harassment has been reported. Managers can also be held responsible for dangerous work environments. Any employer or manager who has actual knowledge of a concealed danger and fails to notify the affected employees and appropriate state agency can be fined or imprisoned or both.
California employers cannot prevent ex-employees from working for competitors. Non-compete agreements in California are generally not valid. California courts view non-compete agreements as “against public policy” (against the public good). Most other states will enforce such covenants when they are reasonable. California employers may enforce reasonable confidentiality, intellectual property assignment, non-solicitation and non-disclosure agreements.
Mandatory arbitration provisions covering wrongful termination or employment discrimination claims must satisfy certain requirements. California employers do have the right to require employees to sign arbitration agreements as a condition of employment, however, employers must take care that the arbitration agreement is not “unconscionable,” which would render it unenforceable. In addition, class action arbitration waivers are generally unenforceable and individual arbitration is favored by the courts.
WARN Act – Layoffs and Business Closures
The federal Worker Adjustment and Retraining Notification Act (WARN) requires companies employing a certain number of employees to provide written notice prior to any mass layoffs or plant closings to specified entities. Employers can be liable for back pay, penalties up to $500 a day for each day of violation for a maximum of 60 days, and liable for the cost of any medical expenses incurred by employees that would have been covered under an employee benefit plan for the period of the violation. California’s version of the WARN Act is broader in scope and effects more employers than the federal version.
The city of San Francisco has additional laws and mandates which often supersede both State and Federal Laws. Be sure to review our “What’s Different About San Francisco Laws” whitepaper.
California is a unique state when it comes to labor and employment laws. Human Resource professionals in other states who are responsible for California employees can get the HR assistance they need from CEA's HR experts.