Michael Bertoncini discusses the recent trend of private-sector doctors turning to organized labor after broad changes across the healthcare industry in “Changes In Health Care Are Fueling Doctors’ Union Interest,” published by Law360.
Archives for October 26, 2023
Joshua Henderson Comments on California Gov. Gavin Newsom’s Recent Veto of Workplace Discrimination Bills
Joshua Henderson comments on California Governor Gavin Newsom’s decision to veto three workplace discriminated-related bills and what these vetoes will mean for future legislation “3 Calif. Discrimination Bills That Died At The Finish Line,” published by Law360.
Jackson Lewis Receives Connecticut Asian Pacific American Bar Association 2023 Diversity Award
Nationwide employment law firm Jackson Lewis P.C. is pleased to announce the firm has been named a recipient of the 2023 Connecticut Asian Pacific American Bar Association (CAPABA) Diversity Award. The Diversity Award recognizes a person or organization that has demonstrated its commitment to diversity in the legal profession and support for CAPABA’s mission. Jackson Lewis was presented with the Diversity Award at CAPABA’s Annual Dinner on October 25, 2023, at the Hilton Stamford Hotel in Stamford, Connecticut.
Senate Confirms Looman as DOL Wage and Hour Administrator
The Senate has confirmed Principal Deputy Administrator Jessica Looman as the head of the Department of Labor’s Wage and Hour Division (WHD) by a 51-46 vote.
Anti-Affirmative Action Organization Challenges Race Considerations in Military Academy Admissions
Continuing its efforts questioning the constitutionality of the use of race in higher education admissions, Students for Fair Admissions (SFFA) has filed a lawsuit in the District of Maryland against the U.S. Naval Academy on October 5, 2023. The lawsuit was filed just months after the U.S. Supreme Court ruled unconstitutional similar programs on June 29, 2023.
Navigating Employee Vacation Pay and Accrual in California: A Guide for Employers
As reported in last month’s CDF Wage & Hour Task Force blog post, a recent Ninth Circuit panel in Harstein v. Hyatt Corporation, held that employees who were “laid off” at the beginning of the COVID-19 pandemic, March 2020, were entitled to payment for accrued vacation time at the time of the lay-off, even though the employees were not officially terminated until June 2020.
While this case returns to the District Court to determine whether the failure was “willful,” this month’s blog post looks at the legal requirements of vacation pay and the ability to cap accrual of vacation time under California law, including valuable tips for California employers to help compliance.
California law does not require employers to provide vacation to its employees, but if the employer does, it must comply with certain requirements. California law considers vacation pay to be a form of wages, and employees have the right to accrue and use vacation time that has vested. Employees can use accrued vacation time as soon as it’s earned (or vested), and employers must not impose unreasonable restrictions on its usage. Given that vacation time is considered a form of wages, employers are required to pay employees for any unused accrued vacation time upon termination or separation of employment. Failure to timely do so may result in additional penalties recoverable under Labor Code section 203, which in many cases may significantly exceed the amount of vacation pay.
California law prohibits “use it or lose it” vacation policies where employees forfeit accrued vacation time that is not used by a certain date. This does not mean, however, that vacation time, if unused, must accrue indefinitely. Employers may cap vacation time that can accrue, so that no additional vacation time accrues until the employee’s total existing vacation time falls below the defined cap. This cap must be reasonable and cannot deprive employees of their earned vacation pay.
The DLSE provided guidance as to what it considers to be a “reasonable” cap. The DLSE Enforcement Manual §§ 15.1.4 and 15.1.4.1 provide that a vacation cap policy that requires all vacation to be taken in the year it is earned (or in a very limited period following the accrual period) is “unfair and will not be enforced.” However, as set forth in a DLSE Opinion Letter from August 8, 1993, the DLSE has suggested that at least nine months must be given after vacation time has been accrued to allow employees to use that vacation time.
Employers can use different accrual methods, such as “accrual as you go” or “lump sum” accrual as part of its vacation policy. Typically, employees earn vacation time based on their length of service. Unlike Paid Sick Leave, paid time off (PTO), personal days, and floating holidays are treated like vacation time and are subject to many of the same rules.
Tips for Maintaining Compliance:
1. Compliant Policies are a Must:
a. Draft a comprehensive vacation policy that complies with California law, explicitly addressing the cap on accrual if applicable.
b. Regularly review and update the policy to ensure it aligns with any changing legal requirements as well as comports with changing business needs.
2. Put it into Practice:
a. Educate employees about their rights and obligations regarding vacation accrual and usage, as well as supervisors and management who may be applying the policy in practice.
b. Develop a clear procedure for timely payment of accrued vacation upon termination or separation of employment and ensure that this is properly reflected on the wage statement.
3. Consistency is Key:
a. Apply vacation policies consistently to all employees, ensuring fairness and avoiding inconsistent application.
b. Keep accurate records of accrued and used vacation time to prevent disputes.
c. Employers should ensure that vacation policies are clearly communicated to employees and readily accessible.
4. Staying Current and Informed:
a. Stay up-to-date with changes in California employment laws to maintain compliance.
b. Consult with legal counsel or HR professionals experienced in California employment laws to ensure your policies are in line with state regulations.
If you have any questions about this blog post or would like to schedule a wage and hour compliance check, please contact the authors of this article, Nancy “Niki” Lubrano or Brian Cole, or your favorite CDF attorney. Be sure to subscribe to CDF’s blog here to ensure you receive these regular monthly wage and hour law tips.
Google Loses Gender Discrimination Trial
A jury recently ordered Google to pay $1.15 million to a New York executive who claimed the company discriminated against her based on her gender, retaliated against her…
Senate Confirms Looman’s Nomination at DOL
The U.S. Senate has confirmed Jessica Looman as a top enforcer at the U.S. Department of Labor (DOL). Senators voted 51-46 mostly along party lines on Oct. 25 to confirm…
California’s New Miscarriage Law Gives Boost to Rare Leave Type
Joy C. Rosenquist says even though California wasn’t the first state to enact reproductive loss leave, the move is likely to raise the issue’s profile and spur similar laws in other places.
Bloomberg Law
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AI hiring tools keeping skilled professional immigrants out of job market
Alice Wang says companies are starting to understand the benefit of vetting AI tools and setting the training data, but they’re doing so from their own internal company perspective.
Human Resources Director America
Litigator Filling EEOC’s Long-Vacant General Counsel Post Will Be First Blind Person in Role
Bradford Kelley says the confirmation of Karla Gilbride as general counsel of the EEOC adds to the plaintiff’s bar’s influence at the commission.
Corporate Counsel
Another Job on Slack and Confusing Labor Issues: What’s the B-Side of the 4-Day Shift?
My company is spying on me, does it have the right? It depends: this is what the judges think
Miguel Arberas discusses workers’ expectations for privacy from their employer and when employers must notify workers about surveillance measures at work.
El País
Why Business Development Plans Fail Even When You Make the Time
Kathryn McConnell talks about the most significant and frequent mistakes attorneys make, including failing to clearly define their BD goals and objectives.
Bloomberg Law
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DOL Proposes Significant Increase in Salary Level to Remain Exempt From OT
Andrea M. Kirshenbaum and Tanner McCarron write about the DOL’s proposal for a more than 50% increase to minimum salary thresholds to be classified as exempt from overtime under white-collar exemptions and what employers can do to begin reviewing their workforces.
The Legal Intelligencer
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