Due to a rise in transmission of the Delta variant causing a rapid increase in COVID-19 cases in California, the California Department of Public Health (CDPH) issued a new order to help prevent the spread of COVID-19 in hospitals, high-risk congregate settings, and other health care settings.

The order takes effect on August 9, 2021, and states that all covered facilities must be in full compliance by August 23, 2021.

The order applies to the following types of facilities:

  • Acute health care and long-term care settings, including:
    • General Acute Care Hospitals
    • Skilled Nursing Facilities (including Subacute Facilities)
    • Intermediate Care Facilities
  • High-risk congregate settings, including:
    • Adult and Senior Care Facilities
    • Homeless Shelters
    • State and Local Correctional Facilities and Detention Centers
  • Other health care settings, including:
    • Acute Psychiatric Hospitals
    • Adult Day Health Care Centers
    • Adult Day Programs Licensed by the California Department of Social Services
    • Program of All-Inclusive Care for the Elderly (PACE) and PACE Centers
    • Ambulatory Surgery Centers
    • Chemical Dependency Recovery Hospitals
    • Clinics & Doctor Offices (including behavioral health, surgical)
    • Congregate Living Health Facilities
    • Dental Offices
    • Dialysis Centers
    • Hospice Facilities
    • Pediatric Day Health and Respite Care Facilities
    • Residential Substance Use Treatment and Mental Health Treatment Facilities

The order requires covered facilities to verify the vaccination status of all workers and have a plan in place for tracking verified worker vaccination status.

The order also mandates COVID-19 testing requirements for those employees who are unvaccinated or incompletely vaccinated. The testing requirements set forth in the order are based on the type of facility where the employee works.

The order also sets forth mask and respirator requirements for covered facilities.

Jackson Lewis attorneys are closely monitoring updates and changes to legal requirements and guidance and are available to help employers sift through the complexities involved with COVID-19 regulations and orders.

If you have questions regarding compliance with the CDPH order or related workplace COVID-19 requirements, please reach out to the Jackson Lewis attorney with whom you regularly work or any member of our COVID-19 team.

When does the statute of limitations period begin to run on a harassment claim?  The California Supreme Court has ruled in Pollock v. Tri-Modal Distribution Services, Inc. that the time to file a cause of action for failure to promote brought under the harassment provision of the Fair Employment and Housing Act (“FEHA”) starts to run when the employee knows or reasonably should know of the employer’s allegedly unlawful refusal to promote the employee.

Plaintiff, Pamela Pollock (“Pollock”) is a customer service representative for the defendant, Tri-Modal Distribution Services, Inc. (“Tri-Modal”). She alleges that her employer passed her over for several promotions in part because she refused a sexual relationship with Michael Kelso, the executive vice-president of Tri-Modal. Pollock’s administrative complaint challenged the promotion of several individuals, but the appeal to the California Supreme Court concerned the promotion of an individual named Leticia Gonzalez (“Gonzalez”) in particular. Gonzalez was offered the promotion in March 2017, and it became effective May 2017.

The record on appeal did not disclose when Pollock became aware of Gonzalez’s promotion.

The dates are critical.  Pollock filed her administrative complaint in April 2018, when the Government Code required litigants seeking relief under FEHA to file an administrative complaint within one year “from the date upon which the alleged unlawful practice…occurred.” Pollock contended that the statute of limitations began to run in May 2017, when the promotion took effect, while Defendant argued that the statute of limitations began to run in March 2017, when Pollock was denied the promotion.  The trial court and Court of Appeal held that Pollock’s claim was filed late, based upon the date the promotion was offered to Gonzalez, instead of Pollock. The California Supreme Court disagreed, and found that neither party was correct.

The Court noted that the purpose of the FEHA statute of limitations  is “to promote the resolution of potentially meritorious claims on the merits.”  The Court found the limitations period to file an administrative complaint based on failure to promote does not begin to run until an aggrieved employee knows or reasonably should know of the employer’s decision not to promote them, indicating “what starts the clock is the employee’s actual or constructive knowledge of the employer’s decision.”  This approach, the Court stated, “protect[s] defendants from the necessity of defending stale claims and require[s] plaintiffs to pursue their claims diligently.”

No decision was made on whether Pollock’s claim was time-barred. It was sent back to the superior court for further proceedings.

If you have questions about handling failure to promote claims, claims of harassment or retaliation, or related issues, contact a Jackson Lewis attorney to discuss.

California employers should review their employment background check procedures in light of recent developments. The California Court of Appeal recently ruled in All of Us or None of Us v. Hamrick that an individual’s date of birth and driver’s license number cannot be used as data identifying a criminal defendant in public records.  The ruling will, if upheld, affect employers and third-party consumer reporting agencies when conducting background checks on applicants or employees.

The case centers around a California Rule of Court which specifies how electronic trial court records are made available to the public. Rule 2.503 (b) requires that the trial courts that maintain an electronic index must provide remote electronic access to “indexes in all cases” to the extent feasible to do so. Rule 2.503 also specifies what must be excluded from such indexes, including two pieces of information at issue in the case, date of birth and driver’s license number.

Plaintiff – a civil rights organization for formerly and currently incarcerated individuals – filed a complaint because Riverside Superior Court’s website allowed access to court records and data linked to a criminal defendant by inputting a person’s date of birth or driver’s license number. However, an individual would have to know the person’s date of birth or driver’s license already in order to access the information.

At the trial level, the court granted a demurrer as to Plaintiff’s allegations finding that the website did not violate the Rules of Court. However, the California Court of Appeal reversed, holding the Rules of Court prohibit allowing the public to search an electronic index by inputting an individual’s known date of birth or driver’s license.

The California Court of Appeal stated:

After considering the text, history, and purpose of Rule 2.507 [(Electronic access to court calendars, indexes, and registers of actions)], we agree that the rule prohibits the Riverside Superior Court from allowing searches of its electronic criminal index by use of an individual’s date of birth or driver’s license number. We further conclude that the trial court erred in sustaining defendants’ demurrer to this cause of action.

While currently only directly affecting Riverside County, the ruling by the Court of Appeal has already encouraged other courts in California to remove the date of birth information from criminal records. A diverse group of trade associations and businesses have signed on to an amicus letter to the California Supreme Court asking to reverse the decision.

This change in how criminal records are made accessible by courts could pose difficulties for employers and applicants/employees. In particular, employers who are required to conduct criminal background checks will have less reliable information in determining if an applicant or employee must be disqualified from a position. And similarly troubling, employees and applicants may have a greater risk of mistaken identity in which criminal history appears in their background check information that does not belong to them. While such mistakes may be resolved when the employer provides notice of the disqualifying conviction via the process outlined in state and federal background check requirements, it will also cause undue stress. It may also make disproving that a conviction belongs to an employee or applicant more difficult to rebut without the ability to cross-reference with identifying information such as a driver’s license number.

As this change unfolds across California, employers should carefully review background checks and continue to follow the process of individualized assessment and notice required by state, federal, and local ordinances when assessing if an employee or applicant should be disqualified from a position.

If you have questions about employment criminal background checks or related issues, please contact a Jackson Lewis attorney to discuss.

On June 17th the Cal/OSHA Standards Board passed amended COVID-19 Emergency Temporary Standards, which were intended to bring consistency between the California Department of Public Health mask guidance and Cal-OSHA’s workplace requirements.

However, since the passage of the amendments, several counties, including Los Angeles County, have seen a rise in COVID-19 cases. In response, the Los Angeles County Public Health Department (LADPH) issued a revised order that went into effect on July 17, 2021. This followed a “strong recommendation” that all individuals wear masks indoors that was issued by the LADPH in late June.

Under the new order, everyone must wear a mask, regardless of vaccination status in the following situations:

  • In all public settings, venues, gatherings, and businesses in Los Angeles County
  • On planes, trains, buses, ferries, taxis and ride-shares, and all other forms of public transport
  • In transportation hubs like airports, bus terminals, train stations, marinas, seaports and other ports, subway stations, or any other area that provides transportation
  • Healthcare settings, including long-term care facilities.
  • State and local correctional facilities and detention centers
  • Shelters and cooling centers
  • Indoor at any youth-serving facility (such as K-12 schools, childcare, day camps, etc.)
  • In any outdoor location where it is the policy of the business or venue.

Individuals, businesses, venue operators or a host of public indoor settings must:

  • Require all patrons to wear masks for all indoor settings, regardless of their vaccination status; and,
  • Post clearly visible and easy to read signage, with or without having an employee present, at all entry points for indoor and outdoor settings to communicate the masking requirements to patrons.

Although Cal-OSHA allows fully vaccinated employees to forgo face coverings in the workplace upon providing proof, or attesting, that they are fully vaccinated, Cal-OSHA allows local health jurisdictions to require more protective mandates. Accordingly, the LA County order overrides the more permissible Cal-OSHA Temporary Standards.

The LA County order allows certain employees in workplaces to be exempt from wearing a mask when performing specific tasks that cannot feasibly be performed wearing a mask. These types of exceptions are limited to the period of time in which such tasks are actually being performed. Moreover, workers who cannot feasibly wear a mask while performing their work must be tested for COVID-19 at least twice per week, unless the employer is provided proof of the employee’s full vaccination against COVID-19 or proof of recovery from laboratory-confirmed COVID-19 within the past 90 days.

The County has also issued revised guidance regarding mask requirements available on their website.

The Bay Area could soon have renewed masks mandates, as the Counties of Alameda, Contra Costa, Marin, San Francisco, San Mateo, Santa Clara, Sonoma, and the City of Berkley have issued a joint statement strongly recommending masking for everyone indoors.

Jackson Lewis will continue to track COVID-19 related statutes and ordinances around the state of California. If you have questions about masks in the workplace or related issues, contact a Jackson Lewis attorney to discuss.

Several months after Governor Newsom signed into law a statewide right of recall statute affecting the hospitality industry and building services, the Labor Commissioner’s office finally issued a Frequently Asked Questions page.

The FAQs clarify that an acceptance by an employee of an offer must be delivered to the employer within 5 business days, which does not include Saturdays, Sundays, or California state holidays.

Moreover, the obligation to offer positions does not end if an employee declines a position. If an employee turns down a job offer, an employer must offer the employee subsequent jobs that are to be filled assuming the employee worked at the same or similar position. As stated in the statute, an employer does not have to recall a non-qualified employee. A qualified employee is defined as an employee who held the same or similar position with the employer at the time of the employee’s most recent lay-off.

An employer must provide the laid-off employee a written notice within 30 days of the date of filling the position if the position is filled by a less senior employee. The notice must include the length of service with the employer of those hired in lieu of that recall, along with all reasons for the decision.

An employer must keep the following records for at least three years from the date of a lay-off notice:

  • the laid-off employee’s full name, job classification, date of hire, last known address of residence, email address, telephone number;
  • a copy of the lay-off notice; and
  • copies of all communication between employer and employee concerning employment offers.

The Labor Commissioner also notes that the statewide right of recall is the minimum bar for employee rights, but cities are permitted to make more stringent requirements. And several California cities continue with their own COVID-19 related right of recall ordinances.

Jackson Lewis will continue to track COVID-19 related statutes and ordinances around the state of California. If you have questions about the right of recall statute or related issues, contact a Jackson Lewis attorney to discuss.

In Ferra v. Loews Hollywood Hotel, LLC, the California Supreme Court has concluded that an employee’s “regular rate of compensation” for meal and rest period premium pay is synonymous with the employee’s “regular rate of pay” for overtime.  Accordingly, employers paying meal and rest period premiums must pay those,  not at an employee’s base hourly rate alone, but at that rate plus all non-discretionary payments, meaning those that are paid “pursuant to [a] prior contract, agreement, or promise . . . .”

Plaintiff Ferra alleged that Loews improperly calculated her meal and rest period premium payments when it excluded her non-discretionary quarterly incentive bonuses from premium pay calculations.  Loews successfully argued before the trial court and court of appeal that Ferra’s “regular rate of compensation” for meal and rest period premium pay is her base hourly rate of pay and is distinguishable from her overtime “regular rate of pay.”

After a lengthy analysis of legislative history, the California Supreme Court disagreed and reversed the court of appeal.  The Court concluded that the “regular rate of compensation” for meal and rest period premium pay under California Labor Code section 226.7(c) is synonymous with the “regular rate of pay” for overtime as defined under California Labor Code section 501(a).  As a result, when employers pay meal and rest period premiums, they must use the employee’s overtime regular rate of pay, which includes all non-discretionary payments for the work performed.

Moreover, the California Supreme Court rejected Loews’ argument that its decision should only apply prospectively. Following its decision in Vazquez v. Jan-Pro Franchising International, the California Supreme Court held that since it was interpreting a statute, not overruling or disapproving previous case law, its holding applies retroactively.

What should employers do now?

  • Review and update payroll policies and procedures pertaining to meal and rest period premiums.
  • Audit prior meal and rest period premium payments to those employees who receive non-discretionary bonuses or other wages that are included in their regular rate of pay calculations, to assess what compliance steps should be taken both prospectively and, potentially, retroactively

If you have questions on how to update your payroll policies or need assistance in correcting prior meal and rest period premium payments, contact a Jackson Lewis attorney to discuss.

A piece-rate plan is a wage payment system where an employee is paid a fixed amount for each unit produced or action completed.  Piece rate is used in many different industries, including automobile repair, trucking, manufacturing, and call centers.  An example of a piece-rate plan is an automobile mechanic who is paid a certain amount per tune-up or a factory worker who is paid a certain amount per number of widgets produced.

Piece rate law under the California Labor Code is not the same as piece-rate law under the Federal Labor Standards Act (FLSA), so it is important for California employers to make sure they comply with California law.

The following four tips can help employers comply with California piece-rate law.

  1. Ensure Employees Are Paid Minimum Wage for All Hours Worked, Including Nonproductive Time.

All employers are obligated to ensure that employees receive at least minimum wage for all hours worked. California requires minimum wage compensation for each hour worked. While piece-rate workers typically earn more than minimum wage, employers need to make sure employees are paid separately for non-productive time, which includes time spent performing tasks other than those that earn piece-rate pay, such as traveling to and from job sites, loading or maintaining vehicles, attending meetings, time spent training, etc.   If the employer directs a piece-rate worker to do something such as attend a meeting in which they would not be able to earn piece-rate, the employer must pay the employee at least minimum wage for that period.

Here is an example:

An employee is an automobile mechanic.  On Monday, Employee spends 6 hours repairing 3 automobiles (i.e., each automobile takes 2 hours to repair). The employee earns a piece rate of $100 per automobile repair or $300 for the 3 repairs done on Monday ($100 x 3).

Also, on Monday, Employee spent 1 hour in a meeting and another hour waiting for customers to drop off their automobiles, or 2 hours of nonproductive time (i.e., time not compensated by the piece-rate system of $100 per repair).  In that case, the employee worked a total of 8 hours, 6 hours of productive time (i.e., automobile repairs earning a piece-rate payment), and 2 hours of nonproductive time (i.e., meeting and waiting time not earning a piece-rate payment).

The employee is paid $300 gross wages for his work on Monday.  Under the FLSA, the employer could average Employee’s pay to ensure Employee was paid the applicable minimum wage.   For example, Employee was paid $300 for 8 hours of work, or an average of $37.50/hour.  If $37.50 is greater than the applicable minimum wage, the employer did not violate the minimum wage law under the FLSA.

However, in this case, the employer did violate the California Labor Code.  Even though the Employee earned an average of $37.50 per hour worked, which is higher than any current minimum wage rate in California, Employee did not earn at least minimum wage for each hour worked because Employee was not paid separately for the 2 hours of non-productive time.

Instead, under the California Labor Code, the employee earned $50/hour for the productive time (i.e., time spent repairing automobiles), and $0/hour for the nonproductive time (i.e., time spent in meetings and waiting for vehicles to repair).  The $0/hour payment violates California minimum wage law.

Assuming the applicable minimum wage rate was $15/hour, the employer should have paid Employee at least $330 for Monday (i.e., $300 for the productive time and $30 [or $15/hour] for the nonproductive time).

Employers must make sure they make a separate payment equal to at least minimum wage for all nonproductive time.

  1. Ensure Employees Are Properly Compensated For Rest And Recovery Periods.

Under California law, non-exempt employees must be provided paid rest periods equal to at least 10 minutes for every 4 hours worked, or major fraction thereof.

Pursuant to the California Labor Code, piece-rate workers must be compensated separately for rest and recovery periods at a regular rate that is no less than the higher of:

  • “An average rate determined by dividing the total compensation for the workweek, exclusive of compensation for rest and recovery periods, and any premium compensation for overtime, by the total hours worked during the workweek, exclusive of rest and recovery periods” or
  • The applicable minimum wage rate (defined as “the highest of the federal, state, or local minimum wage that is applicable to the employment”).

 The California Department of Industrial Relations provides more detailed information on the calculation on their FAQ Page for Piece Rate Compensation.

  1. Ensure Employees Are Paid Overtime At The Proper Rate.

The California Labor Code provides overtime wages at a rate of 1.5x, or 2x, an employee’s “regular rate” of pay, depending on the number of consecutive days and hours worked.  For piece-rate workers, the California Labor Commissioner has approved the following two methods to determine an employee’s regular rate of pay:

  • Commonly Used Method: Compute the regular rate by dividing the total earnings for the week, including earnings during overtime hours, by the total hours worked during the week, including the overtime hours. For each overtime hour worked, the employee is entitled to an additional one-half the regular rate for hours requiring time and one-half and an additional full rate for hours requiring double time.
  • Less Common Method: Using the piece rate as the regular rate and paying one and one-half times this rate for production during overtime hours.

The California Department of Industrial Relations provides more detailed information on the calculation on their FAQ Page for Piece Rate Compensation.

  1. Ensure Employees Are Provided Accurate Wage Statements.

There are specific requirements under the California Labor Code for what must be included on a wage statement. However, for piece-rate workers, employers must include the following additional items on every wage statement:

  • The total hours of compensable rest and recover periods;
  • The employee’s rate of compensation for rest and recovery periods;
  • The employee’s gross wages paid for rest and recovery periods;
  • The total hours of nonproductive time worked;
  • The employee’s rate of compensation for nonproductive time; and
  • The employee’s gross wages for the nonproductive time.

If you have questions about piece-rate or related issues, contact a Jackson Lewis attorney to discuss.

The state and some local COVID-19 supplemental paid sick leave requirements continue through the summer. And the City of Los Angeles’ mayor issued a public order mandating additional paid leave.

Under the order, employees who work within the City of Los Angeles and have been employed by their employer for 60 days are entitled to paid time off to get vaccinated for COVID-19, including traveling to and from the appointment, as well as recovering from the side effects of vaccination, if it prevents the employee from being able to work or telework.

Effective Period

The leave mandate went into effect immediately on June 24th and expires on September 30, 2021. However, certain payment requirements are retroactive to January 1, 2021.

Amount of Leave

The amount of time an employee is entitled to take is dependent on the size of the employer and whether the employee is full-time or part-time.

Size of Employer Full-Time Employee  Part-Time Employee
25 or fewer employees
  •        4 hours of COVID-19 Vaccine Leave to obtain each COVID-19 vaccine injection.
  • Up to 8 hours of COVID-19 Vaccine Leave to recover from any vaccination-related side effects.
  • The prorated amount of 4 hours of COVID-19 Vaccine Leave per injection based on the average number of hours worked in the 60 days preceding the injection.
  • Up to the prorated amount of 8 hours of COVID-19 Vaccine Leave to recover from any vaccination-related side effects.
More than 25 employees
  • If the employee has exhausted leave under other sick leave allotments such as the city mandated supplemental paid sick leave

o   4 hours of additional paid leave per injection

o   Up to 8 hours of additional paid leave for recovery from vaccination-related side effects.

  • If the employee has exhausted leave under other sick leave allotments such as the city mandated supplemental paid sick leave

o   Up to the prorated amount of 4 hours per injection based on the average number of hours worked in the 60 days preceding the injection.

o   Up to the prorated amount of 8 hours for recovery from vaccination-related side effects.

Rate of Pay

Non-exempt employees entitled to the leave are to be compensated at the highest of the following rates:

  • The normal rate of pay for the workweek in which the leave is taken;
  • The City’s minimum wage;
  • The average hourly pay for the preceding 60 days, not including overtime.

Exempt employees are to be compensated for the leave in the same manner as the employer calculates other forms of paid leave. However, leave required by the order is not to exceed $511 per day (or $255.50 per each 4 hours), or $1,022 in aggregate.

Retroactive Provisions

If an employee took leave to receive a COVID-19 vaccine or to recover from vaccination on or after January 1, 2021, and was not compensated at an amount equal or greater to the rate required by the order, then upon oral or written request of an employee, the employer must provide a retroactive payment.

Retroactive payment will also be due to an employee if the employee had to use leave other than the city-mandated sick leave or city-mandated supplemental paid sick leave, such as vacation time and such leave must be restored to the employee.

If you have questions about compliance with the City of Los Angeles order or related issues with COVID-19 leave, contact a Jackson Lewis attorney to discuss.

On May 18, 2021, Santa Clara County ordered businesses to track employee’s COVID-19 vaccination status. This Order departed largely from the prior County Orders as well as the California Blueprint for a Safer Economy.  However, in conjunction with the California Department of Industrial Relations, Division of Occupational Safety and Health (commonly known as Cal/OSHA), the County has now issued a new Order limiting the requirement.

The June 21, 2021 health order includes recommendations to continue to keep the community safe from COVID-19, which the County suggests include: (1) getting vaccinated; (2) continuing to emphasize outdoor activities; (3) avoid travel if not fully vaccinated; and (4) continue regular testing for COVID-19 if not fully vaccinated and, regardless of vaccination status, get immediately tested if you have COVID-19 symptoms.  The County cited declining cases, widespread community vaccination, and the newly amended Cal/OSHA regulations as the reasons it was phasing out its May 18th Order.

Under the revised order, businesses in Santa Clara county must have completed two rounds of ascertainment of the vaccination status of their personnel. Prior to the June order, ascertainment of vaccination status was an ongoing obligation for employers in the county.

As clarified by the County, the first round of ascertainment was to be for all personnel and the second round for those who did not indicate they were fully vaccinated. Once two rounds of ascertainment are completed, the May 18th order will no longer apply.

The first round should have been completed by June 1, 2021, per the original order. The FAQs Santa Clara issued regarding the revised order state that if employers have not completed ascertainment to date, the first round should be completed immediately, and the second round 14 days thereafter.

The County states all entities must maintain their records of compliance for the period Cal/OSHA COVID-19 Emergency Temporary Standards (ETS) remain in effect. Currently, the ETS are set to expire on January 14, 2022.

Under the May and June orders, a business can ascertain an employee’s vaccination status by reviewing the documentation establishing the employee’s vaccination status e.g. the employee’s vaccine card, or the employee may complete a certification of vaccination status. The County developed a template for self-attestation to assist with compliance with the order.

Employers are directed to document if an employee declines to disclose their vaccination and like the ETS treat the employee as if they are not fully vaccinated.

Jackson Lewis continues to track local and state regulations pertaining to COVID-19 in the workplace. If you have questions about complying with the Santa Clara order or related issues contact a Jackson Lewis attorney to discuss.

It’s summer and California has eased COVID-19 restrictions, which makes it the perfect time for employers to refresh themselves on the rules and regulations governing vacation time for employees in California.

Vacation Not Required

While California is known for its complex web of leave requirements, there is no requirement for California employers to provide vacation time to employees. Moreover, employers are permitted to exclude certain classes of employees, such as part-time, temporary, or probationary employees from vacation plans or policies. To avoid misunderstandings, a clear and specific policy that states the classifications that are entitled to vacation time is recommended. When vacation is provided, the rules and regulations can be complicated.

Vacation Time is Considered Wages

Under California law, earned vacation time is considered wages, and vacation time is considered earned as an employee performs work for the employer. In practice, this means that vacation pay is accrued as it is earned and cannot be forfeited unless otherwise allowed by applicable law. Upon the termination of employment, an employee generally must be paid all earned and unused vacation time at the employee’s final rate of pay. Although sick leave is not paid out at separation, these payout rules apply to Paid Time Off (PTO) policies that combine vacation and sick leave.

Reasonable Cap

While an employee cannot usually forfeit vacation time once earned, an employer is permitted to place a reasonable cap on vacation benefits. Employers should note that the California Labor Commissioner has held that policies that require an employee to take all vacation in the same year it is earned are unfair.

A cap on vacation time may set a maximum amount of vacation time an employee may accrue. Once an employee reaches the maximum or cap, they will not accrue additional vacation time until they use some of their accrued time.

Controlling Vacation Time

Employers have the right to manage vacation pursuant to the terms of their policy. This right includes being able to direct how an employee requests vacation, when an employee can take vacation time, and how much an employee can take at a given time upon proper notice.

Some employers with seasonal upticks in work may elect to have vacation “blackout periods” in their policies or related rules pertaining to vacation time. Vacation policies should be carefully drafted to address the needs of the business but also ensure compliance with the law.

“Unlimited” Time Off

Some employers have adopted “discretionary” or “flexible” time off policies.  Under these policies, employees are given flexibility in the amount of time off that can be taken for a vacation purpose.  Under such policies employees do not accrue vacation hours, so they do not present the same forfeiture and payout obligations discussed above.  Instead, employees are allowed to take time off as workloads permit.

In drafting such flexible time-off policies where vacation does not accrue like a traditional vacation policy, employers should consider the following:

  1. Is the policy in writing?
  2. Does the policy clearly provide that an employee’s ability to take paid time off is not a form of additional wages for services performed but part of the employer’s promise to provide a flexible work schedule?
  3. Does the policy spell out the rights and obligations of both the employee and employer and the consequences of failing to schedule time off?
  4. In practice, does the policy allow sufficient opportunity for employees to take time off, or work fewer hours in lieu of taking time off?
  5. Is the policy fairly administered so that it neither becomes a de facto ‘use it or lose it policy’ nor results in inequities, such as where one employee works many hours, taking minimal time off, and another works fewer hours and takes more time off?

If you have questions about vacation time in California or need assistance with related issues, contact a Jackson Lewis attorney to discuss.