The Employers Group Helpline receives about 50,000 calls annually from our members. Below are over 60 of the most commonly asked questions. Our Frequently Asked Questions have been organized into the following categories for your convenience..

The answers to these questions do not constitute legal advice. These answers cover federal and California law.

Fixed Salary Rule of Exempt Employees

1. Can employers dock an exempt employee's wages for time spent on jury duty regardless of the number of weeks on such duty?

If a salary exempt employee works any part of the workweek, then he/she must be paid for the entire workweek. If no work is performed in the week, then no salary is due.

2. Can I dock exempt personnel's pay in hourly increments?

No. To do so would threaten the exemption.

Hours Worked

3. If an employee reports to work and there is no work available, are there special pay requirements?

The employee shall be paid for half the usual or scheduled day's work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee's regular rate of pay.

4. Must companies compensate hourly employees who are required to carry beepers on off duty time?

Whether or not employees are paid, turns on the factor of employer control. If the employee is free to conduct his/her personal activities as normal, and is only required to call the employer when beeped, then the employer must pay for the time the employee responds to the beeper only. The mere carrying of a beeper does not constitute hours worked unless the employee is required to report to work when beeped and the time given to report unduly restricts his/her normal activities.

5. When must a company pay an hourly employee travel pay?

Travel during the workday is paid at the employee’s hourly rate. Travel outside of normal work hours must be paid, but the employer may pay this at a rate as low as minimum wage. All hours spent traveling are counted as hours worked for purposes of computing overtime.

6. Are there any legal requirements to pay for holiday, vacations or sick leave?

No. Employers are not required to pay for these days. If employers voluntarily pay holiday, vacation and sick leave, then employers must follow the appropriate legal obligations such as payment of accrued but unused vacation time at termination.

Leaves

7. Are pregnancy disability leaves separate from CFRA/FMLA (California Framily Rights Act/Family and Medical Leave Act) leaves?

Yes. FMLA can run together with PDL (Pregnancy Disability Leave) , but CFRA cannot run with PDL and PDL can run by itself.

8. Can an employer deny a FMLA day to an employee who has an existing medical certification under FMLA?

No, provided that the medical certificate specifies intermittent leave.

9. Once an employee has a FMLA certification does the Department of Labor (DOL) allow the employer to request re-certification?

Yes, you may request a new certification every 30 days, but not more frequently unless there is a change in the employee's condition. If the health care provider puts the employee out for more than 30 days, you may request recertification only after that time expires. A recent DOL opinion letter states that you can request a new recertification annually.

10. Does the employer have the right to designate FMLA/CFRA leave?

Yes, even when it is against the employee’s wishes.

11. Can employers charge off CFRA/FMLA leaves to workers' compensation?

Yes, if the injury meets the definition of a serious health condition.

12. An employee is eligible for CFRA leave to care for her newborn and has requested part-time work. Must I grant her request?

No. CFRA leave to care for a newborn must be taken in two-week blocks except on two occasions when it may be less.

13. Are employers required to grant employees time off to attend their child's school?

Yes. Employers with 25 or more employees are required to provide employees a maximum of eight (8) hours per month, and forty (40) hours per year to attend to their child’s school needs. (California Labor Code § 230.8)

14. During termination the employee claims that his/her poor performance is due to alcoholism and claims that under CA law the company must give the employee time off for rehabilitation. Is this true?

No. Employers with 25 or more employee are required to reasonably accommodate employees who voluntarily come forward and ask their employers for time off for rehabilitation prior to a disciplinary action. (Labor Code § 1025) Once time off is granted as an accommodation, however, employers are not required to continue this accommodation time after time.

15. What are the employer’s rights under the new Paid Family Leave Law (PFL)?

The employer has the right to compel employees to use two weeks of accrued vacation prior to the start of paid family leave insurance. Remember this law does not mandate that the employer grant any leave, nor in any way amend the Family and Medical Leave Act (FMLA), California Family Rights Act (CFRA), or Pregnancy Disability Leave (PDL).

Meals & Rest Periods, Maximum Hours

16. Is it permissible for employees to skip their lunch or break periods in order to leave early? Can employees if paid for it, have an "on duty" meal period?

No. The California Labor Code § 226.7 invokes penalties against the employer if it fails to provide a meal or rest period. There are two exceptions to this rule: (1) if work hours do not exceed six hours in a day, then the employee may waive, in writing and with the employer’s consent, the meal period; and (2) for shifts exceeding ten hours in a day, the second meal period may be waived in writing by the employee, again with the employer’s consent. The exception addressing a second meal period does not apply to Wage Orders 4 or 5. Only employees in the healthcare industry may waive the second meal period for shifts exceeding twelve hours.

The answer to the second question is “no” also. Employees can have an on-duty meal period in limited circumstances – only when (a) the nature of the work prevents the employee from being relieved of all duty; (b) the employee and employer agree in writing to an on-duty meal; and (c) the employee is paid for the meal period.

17. Must employees have one day a week off?

Yes, but it can be averaged out over a month’s time. In other words, they must have at least four days off per calendar month.

18. What are the maximum hours an employee is allowed to work in one 24-hour workday period?

There is no maximum number of hours. Exceptions exist for special occupations, i.e. airline pilots, and class A commercial truck drivers.

Final Checks

19. When an employee quits, how much time does an employer have to furnish the employee with the final check?

A resigning employee who provides at least 72 calendar hours of notice must be paid at the time of quitting. If an employee quits without giving notice, an employer must make payment within 72 calendar hours.

20. Is it permissible to pay a discharged employee his/her final check on their next scheduled payday?

No, a discharged or laid-off employee must be paid all earned wages immediately including accrued vacation pay immediately on termination. (Special rules apply to certain seasonal employees, motion picture employees and oil-drilling employees.)

21. Is the employer required to mail the final paycheck to the employee who quits?

No. The employee may be paid by mail upon the employee’s request and designation of a mailing address. It is strongly recommended that an employer obtain the employee’s request in writing.

22. Can employees work alone or be required to work alone?

Yes, as long as it does not pose a safety risk.

Tools, Equipment and Uniforms

23. What constitutes a uniform under Industrial Welfare Commission Orders Interpretations?

A “uniform” includes wearing apparel and accessories of distinctive design or color. (Protective apparel regulated by the Occupational Safety and Health Standards Board is not covered under the Wage Orders.)

24. Are there special pay requirements for employees who maintain company issued uniforms?

If a uniform requires only minimal care such as washing and tumble/drip drying, an employee must be paid a weekly premium of $6.75. However the employer must pay for actual costs for the maintenance of uniforms requiring ironing, dry cleaning or separate laundering because of heavy soil or color.

25. A terminated employee was issued tools or uniforms. Can employer hold employee's final paycheck until the item(s) are returned?

No.

26. Can an employer lend money to an employee and be able to deduct unpaid balance from final paycheck?

No, you can only take the payment that would normally be deducted, but not the balance. This is true even if the employee authorized a balloon payment in an agreement.

27. Can employers deduct from an employee's pay cash shortages, breakage or losses of equipment?

No. If, however, the employer can prove that the act was a “dishonest or willful act or gross negligence” of the employee, then deductions are permissible. (California Wage Orders, § 8) In cases of deductions, be certain that you leave the employee with not less than federal minimum wage (which is currently $5.15 per hour) for all hours worked.

28. Can the company require employees to furnish their own tools?

Yes, if employee is paid twice the state minimum wage and the tools and equipment are customarily required by the employee’s trade.

Vacation

29. Can employers cap their vacation accrual plan?

Yes, employers may place a cap or maximum on accrued vacation time. Use it or lose it policies, however, are prohibited by California law where vacation is paid out of payroll.

30. Does the company have to pay unused accrued sick or vacation pay to terminated employees?

No/yes. No. Employers are not required to pay unused sick time. Yes. Employers, however, must pay accrued and unused vacation pay.

31. Can employers require employees to take vacation time?

Yes. There is an exception, however. Employers can require employees to use vacation time provided that the employee is not covered under the California Pregnancy Disability provisions. Under PDL, employer cannot require the use of vacation time. Exempt employees may be required to use accrued vacation hours for a period of a week or longer. Furthermore, employers are not permitted to force the use of vacation unless the vacation is “on the books” for one fiscal quarter (3 months).

Personnel Records

32. If an employee requests a copy of their personnel records, does the company have to comply with this request?

Employees in California have a right only to copies of documents they have signed. The employer can permit copies of other documents. One exception-employees are entitled to copies of payroll records whether signed or not.

33. What, if any, are the exceptions to an employee's right to inspect their personnel records?

In California, an employee must be permitted to inspect the file after giving reasonable r notice, during their own time, and generally no more than once per year. An employer may refuse to let the employee inspect the investigation of a possible criminal offence or letters of reference. They are entitled to a copy of anything they have signed. Copies of payroll records are an exception. Employees must beprovided copies withi n 21 days.

34. Our handbook set out an introductory period of 90 days. We say we are“at-will” employers. Is this good?

Yes, but you must ensure that your at-will policy states that you may terminated under your policy at any time during the employment relationship, including during and after the introductory period. Furthermore, it isalways advisable to have good, written documentation as to the reason for the termination, in case the former employee alleges harassment, discrimination or retaliation subsequent to the termination.

Immigration

35. What should employers do when a person is hired and cannot provide the required I-9 documents within 3 business days of the date employment begins?

You can terminate an employee who fails to produce the required document(s), or a receipt for a replacement document(s) (in the case of lost, stolen or destroyed documents), within three (3) business days of the date employment begins. However, you must apply these practices uniformly to all employees. If an employee has presented a receipt for a replacement document(s) evidencing eligibility, he or she must produce the actual document(s) within 90 days of the date employment begins.

36. Can I photo copy documents for I-9 purposes that state across the face of the document that it may not be copied?

Yes.

OSHA

37. Are employers required to post annual occupational injury and illness reports?

Yes, each year beginning in 2003, most employers with more than 10 employees must post a certified (by a corporate executive) copy of the OSHA 300A from February 1st through April 30th. Low-hazard industries such as retail, service, finance, insurance and real estate are exempt unless specifically asked by the government to keep and post the log.

These new rules went into effect January 1, 2002, and provide for new forms as indicated below. The forms may be obtained from the Cal/OSHA website, www.dir.ca.gov/dosh

*The most recent version of the Employers Report of Injury obtained from the workers' compensation insurance carrier may be used instead of form 301.

Workers' Compensation (W.C.)

38. Do I have to post an employee's right to choose his or her own doctor for treatment of a W.C. injury illness?

Yes. Employers are required to post this right. Failure to post results in the employer’s loss of medical control of the workers compensation case. An employer with a Medical Provider Network (MPN) would otherwise have practically unlimited medical control if the employee has not predesignated his or her own doctor, Likewise, an employer without an MPN would have 30 days of medical control in the absence of the employee's predesignation.

39. When an employee is injured, sent for medical treatment and a doctor sends the employee home, what are the employer's pay liabilities?

The employer is responsible for the medical care of an industrially injured worker. When an employee with a work-related injury or illness has been off work for three days or when he/she is hospitalized, the employee becomes eligible for payment from the employer's workers' compensation insurance company. The temporary disability (TD) payments cannot extend beyond 104 weeks within 2 years of the commencement of TD payments for a single injury. Workers Compensation does not require the employer to pay the injured worker for time spent receiving subsequent medical treatment. If injured employee is non-exampt and cannot complete work on the day of injury, the employer should pay the balance of the day even though it is not required. Failure to pay will result in the day being counted as a lost workday. Exempt employees must always be paid for a full day when a part of the day is worked.

40. Does the company have workers' compensation liabilities for employees injured in off-duty social, recreational or athletic activities?

These activities are not covered under an employer’s workers compensation policy provided that the employer posts a notice to this effect prior to the off-duty social, recreational or athletic event. However, if the activity were an expressed or implied employment requirement, then an injury sustained during such activity would be compensable.

41. What workers' compensation notices must be given to employees?

Employers must provide three notices. One notice indicates that the employer has worker’s compensation insurance; the name of the insurance carrier and the date the policy expires. The second notice indicates that the employee, prior to the date of an industrial injury, may select a physician of his/her own choice to provide medical care from the date of injury. The third notice (Labor Code §3553) requires every employer provide to every employee who is a victim of a crime at the place of employment, a notice which indicates that the employee is eligible for worker’s compensation including for psychiatric injuries.

Sexual Harassment

42. Must an employer accommodate an employee's request to maintain confidentiality regarding sexual harassment?

An employer may indicate to the individual that the information will be kept confidential "in so far as we are able to do so." It depends upon the ability to get evidence elsewhere. In many cases it is not possible to maintain confidentiality.

43. If the employee withdraws a sexual harassment complaint does the employer continue with the investigation?

Absolutely. Company liability is still possible if an investigation is not done. Once an allegation has been made, an employer is "on notice" and must investigate.

44. Should an employer always investigate a sexual harassment complaint?

Yes. Each complaint should be thoroughly investigated to determine whether or not there is a problem that should be addressed. Again, the employer is "on notice" and must follow through. A failure to act could create greater liability for the organization.

Unions

45. Does the National Labor Relations Act apply in a non-union setting?

Yes.

46. Someone posted pro-union literature on the company bulletin board. Will I be in violation of the law if I remove it?

Depends on your company policy regarding the posting of literature, and solicitation, and your enforcement of the policy

47. A union business agent gave me a bundle of cards he said were authorization cards. He demanded we recognize the union as the bargaining agent for our employees. What do I do?

Give the bundle back, and inform the agent you refuse to accept the cards.

COBRA

48. If an employee is on a leave of absence (LOA) must the employer continue health insurance or is this a COBRA (Consolidated Omnibus Budget & Reconciliation Act of 1985) event?

It depends. If the employee is on FMLA and CFRA leave simultaneously, the employer must continue health coverage under the same conditions (permitting the employee to pay the same dollar amount or the same percentage of the premium) as though the employee were still actively working, for up to a maximum of 12 weeks. After the 12 weeks of leave, if the employee does not return to work, then the employee and dependents (qualified beneficiaries) are entitled to 18 months of COBRA plus an additional 18 months of Cal-COBRA (for plans written, delivered and filed in California)..

In cases where CFRA follows FMLA (as in pregnancy disability followed by baby bonding), then COBRA (followed by Cal-COBRA) may begin at the end of FMLA and continue through any existing pregnancy disability leave and any subsequent CFRA leave.

Military Leave: If the service is for 30 or fewer days, the employee cannot be required to pay more than the normal employee share of any premium. When the leave is longer the employee's insurance will continue for up to 24 months if the employee pays for the insurance. The employee cannot be charged more than 102% of the premium costs. This continued coverage will run concurrently with COBRA .

Note:
• California Family Rights Act leave (CFRA) and Pregnancy Disability Leave (PDL) are California leaves.
• Family Medical Leave Act (FMLA) is a Federal leave.
CFRA and FMLA are 12-week maximum leaves, whereas PDL is a maximum of 4 months.

49. Must an employer continue benefits for an employee out on workers' compensation?

It depend. If the injury is also a serious health condition under FMLA/CFRA, then the employer is obligated to cover health benefits for the 12-week period while the employee is on FMLA/CFRA. . If an employer has a policy of continuing benefits for industrially (workers compensation) and non-industrially injured workers, the employer is required to cover benefits for the same time frame for an industrially injured worker. Generally, after this, the employer must offer the employee COBRA.

50. Do qualified beneficiaries have the same rights to change their COBRA coverage during open enrollment as active enrollment?

Qualified beneficiaries have the same rights during open enrollment, as do active employees.

51. Does the employer have to pay the premium during COBRA election period?

No. If COBRA is elected, the qualified beneficiary (former employee and dependents) must retroactively pay for their premiums back to the date that coverage is lost. This payment must be made within 45 days of notifying the employer that they are electing COBRA.t

52. Does the employer have to allow a qualified beneficiary to use the health plan before electing COBRA?

No, the employer can prohibit the employee from using the plan until a Cobra election is made and the first payment is paid by the employee. Additionally reimbursement of indemnity claims can also be frozen until this occurs.

53. What is California COBRA (Cal-COBRA)?

California mandates 36 months of Cal-COBRA continuation coverage for small employers with 2 to 19 employees. Cal-Cobra also adds an additional 18 months (up to a total of 36 months) of medical coverage beyond that which is required under federal Cobra for a termination or reduction in hours. Cal-COBRA only applies to plans written, delivered and filed in California.

Miscellaneous

54. If an employee gives two weeks notice, can you let him/her go before the two weeks are up?

Yes, when an employee provides two weeks notice you can terminate the employee before the effective date of the resignation. If, however, you don’t pay the employee and keep the employee on benefits through the date of resignation, then the employer may be charged for a subsequent unemployment claim.

55. What are the requirements to classify a job as exempt from overtime?

Exempt classification entails two tests: the salary test ($540.00 weekly in California) and the duties test. The duties tests are complex but briefly they are:

1. Executive exemption: more than half the time the incumbent supervises/ manages the equivalent of 2 or more people in the same department.
2. Administrative exemption: more than half the time the incumbent is exercising independent judgment and discretion in matters of significance to the business or the client’s business.
3. Professional exemption: more than one half the time the incumbent is exercising independent judgment and discretion and (1) is certified or licensed in an enumerated profession or (2) is engaged in an occupation recognized as a learned or artistic profession.
4. Outside Salesperson exemption: more than half the time, the incumbent is away from the employer’s place of business selling, or obtaining orders or contracts.
5. Computer professional exemptions: incumbents in the computer software field who are paid on an hourly basis of not less that an annually indexed rate (currently $44.63 per hour) and more than half the time are involved in intellectual or creative work that involves the exercise of discretion and independent judgment. In addition, such persons must be engaged in duties of a high level concerning computer systems, software or hardware. All hours worked must be paid at the base rate ($44.63).
   

56. Must employers retain unsolicited resumes?

No, provided that the resume is not reviewed or considered for other open positions in the organization.

57. What is a new hire report?

It is a report required by EDD to report all new employees hired. This assists California Department of Child Support Services and Department of Justice (DOJ) in collection of delinquent child support obligations.

58. Must the company provide male and/or female employees a separate lounge area to lie down?

No, the Wage Orders (§ 13) only require “suitable resting facilities” in an area separate from the toilet rooms, and available to employees during work hours.

59. What are the maximum weight lifting requirements for a male and/or female employee

There are no requirements by law. This should be determined by the requirements of the position, so that employees can fulfill their duties safely and effectively. Employers should ensure that their lifting requirements are realistic and reasonable.

60. When employees leave the company must the employer give them written notice of the reason for leaving?

No, but the employer is required to provide a “Change of Status Notice” to employees who are discharged or laid off. Such notice must include the employee’s name, social security number, date of lay-off or discharge, company name and signature of the company agent.

61. When can an employer request a "fitness for duty" release from an employee returning from medical leave?

An employer may request a "fitness for duty" release when an employee returns from FMLA/CFRA, if the employer has a uniformly applied practice or policy and has given proper notice to the employee. The employer may not require a "fitness for duty" certificate from an employee returning from intermittent or reduced schedule leave.

When an employee returns from Pregnancy Disability Leave (PDL) the employer may require a written medical verification if it has a similar policy with regard to other temporarily disabled employees.