THE year 2015 has been an interesting time for employment law, with the legislature and the courts defining additional protections to employees. The following are some of the new laws that may interest our readers:
Employers Must Now Provide Paid Sick Leave to Employees
On or after July 1, 2015, most employees working in California for 30 or more calendar days within a year are entitled to paid sick leave. This applies to most temporary, part-time, and full-time employees. Such employees may begin using accrued sick leave on the 90th calendar day of employment. Employees accrue one hour of paid sick leave for every 30 hours worked. Or, instead of accrual, employers can immediately provide 24 hours or 3 days of paid sick leave at the beginning of each calendar year or anniversary date.
On-Call Employees Not Free to Leave Work Premises Must Be Paid for Sleep Time
In the case of “trailer guards” at construction sites who were required to spend the night at their jobsites in residential-type trailers, but who were considered “on-call” and unpaid, the California Supreme Court ruled that the security guards’ on-call hours should be paid as hours worked. An employee who is subject to an employer’s control, even though they’re not “working” during that time, still must be paid. And, unless a sleep exemption applies, the employer must include “sleep time” in the calculation of hours worked for employees with 24-hours shifts.
Piece-Rate Employees Should Be Paid Separately for Rest Breaks
For piece-rate employees, employers must include in their paystubs an item stating the total hours of compensable rest periods, the rate of compensation, and the gross wages paid for those periods during the pay period. The paystubs must also show the total hours of other nonproductive time (e.g., waiting time), the rate of compensation, and the gross wages paid for that time during the pay period. Employees should be paid for rest periods and other nonproductive time at or above specified minimum hourly rates, aside from their piece-rate pay.
More Protections for “Temps” and Subcontracted Employees
Effective January 1, 2015, California employers in nearly all industries will be held accountable for their labor contractor’s failure to pay wages, or provide adequate workers compensation benefits, to workers. If the employer has the “right to control” the workers provided by the contractor, then the client employer is a “joint employer” and will be liable for any employment law violations.
Right to Control Workers is Major Test of Independent Contractor Status
In the case of FedEx drivers who were misclassified as ‘independent contractors,’ the federal Court of Appeal ruled that the principal test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the desired result. Since drivers must wear FedEx uniforms, drive FedEx-approved vehicles, groom themselves according to FedEx’s appearance standards, deliver packages as directed by FedEx, and obtain FedEx’s consent regarding delivery routes and hiring of other persons to help perform their work – the court found that such “necessary control” by FedEx over the drivers is “powerful evidence” that the drivers should be classified as employees.
Additional Leave for Pregnant Employees Clarified
In the case of Sanchez v. Swissport, Inc., the appellate court clarified that an employee who has taken all 29 1/3 weeks of leave under the pregnancy law and California Family Rights Act, but still cannot return to work because of disability, is still entitled to reasonable accommodation from the employer, including additional leave, under the Fair Employment and Housing Act, if the additional leave would allow the employee to go back to work at the end of the leave.
Gender Pay Equality
Beginning January 2016, an employer shall not pay employees at wage rates less than the rates paid to employees of the opposite sex for substantially similar work, and performed under similar working conditions, even though employees may have different titles or work at different sites. If differences in wages exist, the difference must be legally justified based on one or more of the following factors: a seniority system, a merit system, a system that measures earnings by quantity or quality of production, or a bona fide factor other than sex, such as education, training, or experience.
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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com.
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C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully recovered wages and other monetary relief for thousands of employees and consumers. He is named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is a member of the Million Dollar-Advocates Forum.