When envisioning California, you automatically think of warm sunny days, and happy people. However, that was not the case recently with one of our government contracting clients who called to tell us they had been awarded a new contract that would require them to place employees in California. As our client put it, “We are thrilled to have the new contract…but I just wish it wasn’t in California.” That is not an uncommon sentiment because California continues to lead the way in terms of creative (and often burdensome) HR requirements; and companies frequently struggle to meet their California compliance obligations. With that in mind, let’s tackle some of California’s interesting HR requirements.
A. California Leave Comes in Many Varieties
Today, the term “paid leave” refers to more than just the amount of company-sponsored vacation time an employee earns. California has over the years enacted a variety of leave laws (some paid, some not) that employers must navigate to ensure compliance.
Family and Medical Leave
Most everyone is familiar with the federal Family and Medical Leave Act (FMLA). California has two laws that mirror the federal FMLA. The California Family Rights Act (CFRA) requires employers with fifty (50) or more employees to provide eligible employees with up to 12 weeks of unpaid leave in a 12-month period. California’s New Parent Leave Act (NPLA), extends bonding leave rights to employees of smaller employers. As of January 1, 2018, employers with between 20 and 49 employees must provide eligible employees with up to 12 weeks of unpaid leave to bond with a new child.
Both laws have the same eligibility requirements as the federal FMLA: The employee must have worked for the employer for 12 months, have worked at least 1,250 hours in the year prior to the leave, and work at a location where the employer has at least 50 employees (or 20 under the New Parent Leave Act). But unlike the FMLA, the California laws also cover domestic partners and children of domestic partners.
Paid Sick Leave
In 2015, California enacted the Healthy Workplace, Healthy Families Act, requiring all employers to provide paid sick leave to their employees working in California, even if they work part-time. In general, employers must provide at least 24 hours (3 days) of paid sick leave a year. The days can either be accrued or available up front at the start of the year.
If accrued, employees accrue one hour of paid sick leave for every 30 hours worked and accruals must be carried over year to year. Employers can cap accruals a forty-eight (48) hours, or six (6) days, of sick paid leave a year.
Paid Disability and Family Leave
California has a state temporary disability insurance program, funded by withholding from employee paychecks. Eligible employees who are unable to work due to a temporary disability (including pregnancy) can receive up 60% or 70% of their normal pay, depending on the employee’s wages.
In addition, California also offers a paid family leave program, which allows eligible employees to collect the same benefits available for a temporary disability for up to six (6) weeks in order to bond with a new child or care for a seriously ill parent, spouse, domestic partner, child, sibling, grandparent, grandchild, or parent-in-law.
Pregnancy Disability Leave
Through the Department of Fair Employment and Housing (DFEH), employers with five (5) or more employees must participate in Pregnancy Disability Leave (PDL). This benefit allows a woman to use up to four (4) months of unpaid leave. In addition, the PDL can be used in conjunction with the 12 weeks of leave family and medical leave allowed through the CFRA. PDL eligibility requires 12 months of service with an employer, including 1,250 hours worked during the previous 12 months, and the leave request must be accompanied by medical authorization.
Small Necessities Leave
Another California leave option is unpaid small necessities leave (up to 40 hours annually) to visit your child’s school (grades 1 to 12 only). The time off must be requested with reasonable notice, and can be used for such things as finding or enrolling the employee’s child in a school, or participating in an activity sponsored by the school or a licensed child care provider. However, this benefit is only available to employees who work for an employer with twenty-five (25) or more employees working in the same location, and the leave can be no more than eight (8) hours in any calendar month. Employees must also first exhaust any existing vacation, personal leave, or compensatory time off that can be used for these purposes.
Time Off to Vote
California law requires employers to give their employees who do not have sufficient time outside of working hours up to two hours’ paid leave to go to the polls and vote. Employees must alert their employer of the intention to use the voting leave at least two (2) days prior; and the leave must be taken at the beginning or end of their shift, whichever takes the least amount of time, unless a different time is mutually agreed upon.
Domestic Violence Leave
All employers must allow employees to take unpaid leave to obtain a restraining order or seek other judicial relief from domestic violence involving the employee or the employee’s child. In addition, employers with at least twenty-five (25) employees must allow employees who are victims of domestic violence, sexual assault, or stalking to take time off to:
- seek medical treatment;
- obtain services from a rape crisis center or domestic violence shelter or program;
- get counseling; or
- engage in safety planning and/or relocate.
B. Employee Meal and Rest Breaks
California is one of only a handful of states that requires all employees to receive designated meal breaks during the day (or waive them in writing). The typical required meal period is a 30-minute unpaid break if the employee works more than five (5) hours, unless the employee’s workday is only six (6) hours long, then no meal break is required. A second unpaid meal period is required at the 10th hour of work if an employee’s shift lasts longer than ten (10) hours. The meal break is unpaid, so long as the employee is not working and is free to take care of personal matters not connected to his or her job. If the employer fails to allow the 30-minute meal break, the employee must be paid one (1) hour at their regular rate of compensation. (Note that employees in the motion picture industry are allowed a 30-minute break for every six (6) hours of work.)
California also mandates paid rest breaks during employees’ shifts. Employers must permit uninterrupted rest periods for all non-exempt employees whose total daily work time is at least 3.5 hours. These mandatory rest breaks must be offered at the rate of ten (10) minutes for every four (4) hours worked, or “major fraction” thereof. Anything over two hours is considered by the courts to be a “major fraction” of four (4) hours. Insofar as practicable, the rest period must be in the middle of the four-hour work period.
C. An Expansive List of Individuals Protected from Discrimination
Most employers are aware of the basic “protected categories” of individuals against whom they cannot discriminate when it comes to employment (e.g., race, gender, religion, disability, etc.). However, California’s Fair Employment and Housing Act (FEHA) identifies many protected categories, including: Ancestry, Age (40+), Color, Disability (physical and mental, HIV/AIDS status), Genetic Information, Gender Identity/Expression, Marital Status, Medical Condition (genetic characteristics, cancer medical history), Military or Veteran Status, National Origin (includes language use), Race, Religion (dress, and grooming practices), Sex/Gender (pregnancy related conditions), and Sexual Orientation. The state even went one step further in specifically addressing rights of Transgender people in the workplace by creating the Gender Recognition Act. As a result, California employers may not refuse to hire, terminate, or treat differently these classes of individuals when it comes to employment; and these protected categories should be included in any handbook or company policies regarding discrimination or harassment that pertain to California employees.
D. Sexual Harassment Training Required
California has further emphasized its anti-discrimination stance by mandating that employers of fifty (50) or more employees (including employers headquartered outside California) are required to provide supervisors who work within the state of California two (2) hours of sexual harassment training every two (2) years – provided however, an employee must receive training within six (6) months of becoming a supervisor. The trainer must have knowledge or expertise regarding harassment, and the training course must include: practical guidance and examples regarding the federal and state statutory provisions concerning the prohibition against, prevention and correction of both sexual and non-sexual harassment, discrimination, and retaliation along with remedies available to victims in employment; examples of abusive conduct; and instruction regarding harassment that is based on gender identity, expression, and sexual orientation.
As part and parcel of its training obligations, California employers must also have a written harassment, discrimination and retaliation prevention policy that is distributed to all employees. The policy must meet certain state requirements, which are set out by the state Labor Code and the FEHA. California employers must also post required notices from the Department of Fair Employment and Housing, and provide each employee with a sexual harassment information sheet at the time of hire.
E. Immigration Protections
Under the FEHA, employers are prohibited from discriminating against applicant(s) or employee(s) who possess a driver’s license, but are unable to prove that their presence in the United States is authorized under federal law (This runs counter to federal immigration law, so California employers should tread carefully here). California Labor Code section 90.2 requires employers to give a 72-hour written notice to an employee’s authorized representative if a state or federal agency wants to inspect the validity of the employee’s I-9. There’s also Senate Assembly Bill (SAB) No. 450 (took effect on January 1, 2018), which prohibits employers from voluntarily allowing Federal agents without a warrant from inspecting nonpublic areas for immigration enforcement. However, this provision has been temporarily enjoined by a California federal court, as it wades through a lawsuit filed by the Trump administration challenging the validity of SAB 450.
When it comes to California, the only constant is that changes to HR laws and regulations will continue to occur with regularity. California’s requirements are not only different from many states’ regulations, they impose significant, additional responsibilities upon employers with regards to policy requirements, notices to employees, training, and education. Employers who are unfamiliar with California’s HR landscape are well advised to seek experienced guidance to help them navigate the nuances and avoid compliance lapses. Unlike some states, California takes its HR requirements very seriously…and is not afraid to enforce them.
C2 provides strategic HR outsourcing to clients who want to develop optimal workforce strategies and solutions to allow them to be more competitive and profitable. C2 blog posts are intended for educational and informational purposes only