Questions & Answers:
Below are the questions submitted during the live webinar, along with the answers provided by Marie Davis, Esq. If you have questions of your own or require further information
regarding the topics covered in the webinar, feel free to contact Landegger Baron Law Group (see contact information to the left).
Does sick accrual reset on the anniversary date or July 1 if sick was originally given on July 1, 2015?
It is up to you and your policy. If you want it to reset on the anniversary date, you can; if you want to choose July 1, 2016, you can; if you want to choose January 1, you can. It’s all up to you.
If an employer offers PTO, do they have to comply with the new sick pay policy that took effect on July 1, 2015?
Yes, as long as the amount of PTO that’s given to the employee is the equivalent of 3 days per year, and as long as you put in the policy that they can use PTO for any reason, including sick. Just be aware that PTO is treated like vacation. So, if the employee leaves, you have to pay out all the PTO. You can’t later say, “I’m going to give you all the PTO, but I’m going to take out 3 days because of sick, and I don’t have to pay on sick.” If you call it PTO, it’s compensable.
We use a "separation form" that gives employees the option to check a box if they want their final check with the next pay period (which would be direct deposit) or if they want a check immediately upon separation. This option on our separation form is only used for employees that quit; it is not used for those who were fired. By having the employee’s signature, does this allow us to not follow the 72 hour rule?
I would not recommend it. Even if an employee agrees to something, it doesn’t make it legal. The code says 72 hours or immediately upon termination. You can have them check a box if they want it mailed to them, but I wouldn’t go so far as to have them agree to wait until the next pay period. Again, we live in a state where an adult individual could say, “Hey, I want to work from 8 to 4 without taking any breaks, and I want to leave at 4, taking my break at the end of the day, so I can go pick up my kids.” Even as a legal adult, you’re not allowed to give this type of consent. So, I would not recommend that.
For resignation without notice, is the deadline 72 hours from when the notice is given or 72 hours from their last day of work?
72 hours from the last day worked if they give you more than 72 hours notice. Meaning, if I walk into your office today and say “I quit,” then you have 72 hours to pay me. If, on the other hand, I tell you on Monday that I am quitting on Friday, more than 72 hours has passed by Friday, so my check should be ready then. Let’s say I don’t show up to work for three days. In that three-day period, you could call me and if I don’t answer, you could say “Hey look, we’ve decided that our three-day rule is ‘no call, no show—you’ve been fired.’” You could therefore terminate, making sure you have their check ready.
Can we include payroll records with personnel records?
Yes, but I would want you to contact us or review it prior to turning anything over so that we can determine whether there are any potential exposure points. I just don’t want you delivering to the other side any information that could open up a Pandora’s box.
It was mentioned that auto deducting meals is illegal. Is this specific to California? Or is this a Federal law?
Federal law doesn’t even keep track of meal and rest breaks. The only thing that Federal law cares about is overtime, so there are no Federal meal and rest break laws. This is specific to California, which is the toughest state to do business in. That’s why when we are drafting employee handbooks for clients who have employees in more than one state, we’ll often say, “If you use the California version, you’ll be more than covered.”
Would the Marketing Director fall under exempt rules even if they have no subordinates?
These exempt questions are often case-by-case, so I’d really have to talk to you. Please feel free to call. I’d be happy to spend some time with you and do a brief analysis. From your question, it sounds like they may be administratively exempt. They certainly would not fall under the executive exemption, and they certainly would not fall under the professional exemption. They may, however, fall under the administrative exemption. The marketing directors I know are responsible for special projects; they’re trying to get the name of the company out there. So those two boxes are checked. The big question, however, is whether they exercise independent judgment and discretion. If you basically say to them, “Go make my firm known,” then great. If you say, “I want to approve every single flyer, every single pen,” then maybe they’re not exempt. They have to be able to exercise independent judgment, independent discretion.
Is the expense slide strictly for California or does it refer to a federal requirement?
No, it’s not under the FLSA. It’s strictly California labor code section 2802 ut I know there are some tax implications, though I’m not a tax attorney. I know employees sometimes confuse expenses that they can deduct from their taxes versus expenses that they should be getting reimbursed for by their employer. They really are two separate things.
When PTO is cashed out, is it taxed as regular wages or is it taxed at a higher rate?
When PTO is cashed out, is it taxed as regular wages or is it taxed at a higher rate?
Do certifications count toward the advanced degree requirement for professional exemptions?
It would depend, but probably not. For example, nurses, who have advanced degrees and certifications, are not exempt. They’re paid by the hour. So, you’d really want to be careful. Doctors, lawyers, professors, certified public accounts—these are the types of professionals that are exempt. But I’d have to know what certification you’re referring to in order to give a definitive answer.
If you reimburse public employees for cell phone use—even if it’s only 10 dollars per month—doesn’t their phone become public record?
That is a question I do not know the answer to. That’s a very interesting concern. If you want to forward it to me, I might be able to find an answer for you.
What if an employee provides no address and abandons their job? How are we expected to deliver their final pay?
Another good question. Your employees should always submit an address for their employee contact information. If he has no address or phone number, then I would suggest keeping a record of your attempts to contact him and then contacting the local Department of Labor Standards Enforcement Office (Labor Commissioner) and let them know that you have wages ready for an employee and no contact info. They have the power to receive those funds in certain situations.
If an hourly employee comes into work on their day-off to complete their timesheet, do we need to pay them?
You shouldn’t have them do that. If you’re having them come in after hours, could they make an argument that that’s time you should pay them for? Yes, they can absolutely make that argument, so don’t have them come in after hours.
We outsource our payroll, and sometimes there are errors related to sick/PTO hours on pay stubs. Is there a reasonable window of time allowed to facilitate error correction?
Right now, we all have some breathing room. The law just went into effect, and I haven’t seen any class actions filed yet on the basis of improper calculation of sick pay, because again, it’s only been in effect for 5 months, but I would expect class actions to start coming down the pipeline later this year. My advice would be to do the best you can. If you see errors popping up during one pay period, fix it before the next, and then your only liability is one pay period.
If we call the non-exempt employee to complete their timesheet on their day off, due to a missing punch, do we pay them for the phone time?
No. You can call them and let them know you are missing information and take care of it. Just try not to make a habit of it and discipline them for not following proper procedures.
We are an agricultural company, and we track our employees when they come on site, but there may be an extensive travel time from when they come into the facility and when then are actually paid. They clock their access, and they clock their time. We can’t just pay them for the time part; we have to pay for the entire time they were at that facility, correct?
That’s correct. As soon as you are technically under the control of your employer, that’s compensable time.
I’ve told my employees not to answer emails after hours, but they still do. Am I off the hook because I told them not to answer those emails?
No, you’ve got to start taking bigger action. You’re not ever off the hook, unfortunately. You’ve got to start writing them up. If you see that they reply to an email, you’ve got to say, “Look, I’ve told you not to.” One way to get yourself off the hook is to compensate them for that time. So, “How long did it take for you to write that email? 3 minutes? I’ve got to add 3 minutes to your pay.” That’s really the best way to cover yourself. Then, if somebody does file a class action, we can say, “Hey, look at these records. The employer not only had a policy preventing it. They wrote individuals up who violated it, and here’s the extra 3 minutes of pay.”
Should we reimburse 10 dollars per month only when an employee files an expense report for cell phone usage? Or should we pay them every month, without requiring them to file an expense report?
If for any reason employees have to use their cell phone for work, we recommend that you implement a policy that you will pay everybody a 10 dollar flat rate, every month, that will be included in employees’ pay checks. If, for some reason, your employees believe that 10 dollars a month does not adequately compensate them for the use of their cell phones, then they have to go to you with an expense report. Because the reality is, your employees most likely have unlimited data, unlimited text, and unlimited talk 90 percent of the time. So, it’s going to be pretty hard for them to show that 10 dollars a month does not adequately compensate them for their time. But it’s a double-edged sword. Because again, if you have an unlimited plan, it’s also somewhat difficult to determine how many minutes they actually spent on the phone for work. But 10 dollars a month is a good rule of thumb.