Seyfarth Synopsis: On October 1, 2017, after more than a year of waiting, the Berkeley, CA paid sick leave ordinance goes into effect. The ordinance provides extraordinarily generous paid sick leave benefits to employees beyond those provided by the California statewide paid sick leave law.

A little over a year ago, on August 31, 2016, the City of Berkeley, California enacted the “Paid Sick Leave Ordinance.” Berkeley will be the eighth California city with such an ordinance.[1] Because California’s statewide paid sick leave law does not supersede local ordinances, employers must reckon with both the state and local laws, and follow the one that most favors employees. With the October 1 effective date fast approaching, employers with employees in Berkeley should take steps now to ensure their policies and practices comply with the impending law.

Below is a detailed summary of the Berkeley Ordinance and the obligations it imposes. Among its most significant provisions are these: (i) there is no permissible cap on how much earned paid sick leave employees can use in a year, (ii) there is a 72-hour accrual cap (likely a “point-in-time” cap) for large employers, and (iii) employees without a spouse or registered domestic partner can designate an individual as to whom the employee will be eligible to take paid sick leave.

Which Employers Are Covered by the Ordinance?

The Ordinance covers all employers with at least one eligible employee working in Berkeley, and broadly defines “employers” to include anyone who—whether directly or through a staffing agency—exercises control over the wages, hours, or working conditions of any employee.

Covered employers need not provide additional earned sick leave if they provide employees with paid leave that meets or exceeds the Ordinance’s minimum standards. And Ordinance requirements may be waived in a bona fide collective bargaining agreement if the waiver appears in clear terms.

Which Employees are Covered by the Ordinance?

The Ordinance broadly defines covered employee as an individual who performs at least two hours of work within the geographic boundaries of the City of Berkeley in a calendar week and who qualifies as an individual entitled to minimum wage under the California minimum wage law.

How Much Sick Leave Can Employees Accrue?

Employees accrue one hour of paid sick leave for every 30 hours worked. Employees will begin accruing earned sick leave on the later of the Ordinance’s effective date (Oct. 1, 2017) or the employee’s commencement of employment, and can begin using accrued paid sick leave 90 calendar days thereafter.

The cap on accruals depends on how many employees the employer has. For employers with at least 25 employees working in a given week,[2] the cap on accrual is 72 hours. For employers with fewer than 25 employees working in a given week, the cap is 48 hours. While not explicitly stated in the Ordinance, it is likely that this accrual cap is a “point-in-time” or “rolling” cap, meaning that accruals cease whenever an employee’s bank of accrued, unused paid sick leave reaches 72 (or 48) hours and begin again when the employee uses sick leave.

How Much Sick Leave Can Employees Carry Over?

The amount of earned, unused paid sick leave that an employee is entitled to carry over to the next calendar year is the same as the caps on accrual: 72 hours for employers with at least 25 employees and 48 hours for employers with fewer than 25 employees.

While the Ordinance is silent on whether employers can adopt a frontloading program to avoid accrual and year-end carryover obligations, the city’s paid sick leave FAQs provide some relevant information. The FAQs state that employers can provide a lump sum of paid sick leave at the start of each year of employment. But employees must be entitled to accrue additional paid sick leave if they work enough hours to accrue the amount that was initially allocated upfront. In other words, Berkeley employers can “advance” paid sick leave accrual to their employees, but cannot adopt a frontloading system that wholly avoids accrual and removes year-end carryover of unused time.

How Much Sick Leave Can Employees Use in a Year?

The Berkeley FAQs state that employers can establish an initial one hour minimum increment of using paid sick leave. Thereafter, employees must be permitted to use paid sick leave in 15-minute increments. Both of these standards are more generous for employees (and more onerous for employers) than those under the California statewide paid sick leave law.

For employers with at least 25 employees, there is no cap on the number of accrued hours that an employee may use in a benefit year. But employers with fewer than 25 employees may limit an employee’s annual use of paid sick days to 48 hours. The interplay between unlimited paid sick leave usage and a 72-hour “point-in-time” accrual cap could mean that Berkeley employees working for employers with at least 25 employees could use more than three weeks of paid sick leave in a single benefit year.

Under What Circumstances May Employees Use Sick Leave?

After working for an employer for 90 calendar days, Berkeley employees can use paid sick leave earned under the Ordinance for any of the following reasons:

  • when the employee is ill or injured,
  • for the purpose of the employee’s receiving medical care, treatment, or diagnosis (as specified more fully in California Labor Code section 233(b)(4)), or
  • to aid or care for a covered family member who is ill or injured or receiving medical care, treatment, or diagnosis.

A “covered family member” means a child, parent, legal guardian or ward, sibling, grandparent, grandchild, spouse or registered domestic partner. A “child” includes a child of a domestic partner and a child of a person standing in loco parentis. Child, parent, sibling, grandparent, and grandchild relationships include biological relationships as well as adoptive, step, and foster care relationships.

An employee who has no spouse or registered domestic partner can designate one person as to whom the employee may use paid sick leave, to aid or care for that person. Employers must notify the employee of this right to designate by the time that the employee has worked 30 hours after paid sick leave begins to accrue. The employee then has 10 workdays to make the designation. Thereafter, the opportunity to make such a designation, including the opportunity to change a designation previously made, must be extended on an annual basis, giving employees 10 workdays to designate.

Although the California statewide paid sick leave law allows a covered employee to use paid sick leave for reasons related to domestic violence, sexual assault, or stalking, the Berkeley ordinance does not. But because Berkeley employers must comply with both the Ordinance and state law, Berkeley employees  will be able to use accrued paid sick leave for these additional purposes as well.

What Notice Must Employees Provide When Using Sick Leave?

If the need for paid sick leave is foreseeable (e.g., scheduled doctor’s appointments), then the employee must provide the employer with reasonable advance notice. But if the need for leave is unforeseeable (e.g., sudden illness), then the employee must provide notice of the need for the leave as soon as practicable.

What Documents Can Employers Ask Employees to Provide When Using Sick Leave?

Employers may take only reasonable measures to verify or document that an employee’s use of paid sick leave is lawful. Moreover, employers may not require employees to incur expenses that exceed $15 in order to prove their eligibility for paid sick leave.

Is an Employer Required to Pay Unused Time upon Employment Separation?

No. Employers are not required to cash out an employee’s accrued sick leave balance upon separation from employment. But the Berkeley FAQs state that if an employee separates from employment and returns to the employer within 12 months, then previously accrued, unused paid sick leave shall be restored.

Employer Notice Requirements

Employers must report the number of hours of paid sick leave accrued to date in any records they provide to employees at the end of each pay period.

Employers also must post in a conspicuous place at the workplace a notice published by the City, to inform employees of their paid sick leave rights under the Ordinance. The notice must be posted in any language spoken by at least 5% of the employees at the workplace or job site.

If employees do not have a regular physical location where they perform their work, the employer must provide a copy of the City notice to the employees when they are hired or assigned to complete work within the City of Berkeley.

Records Maintenance Requirements

Employers must retain payroll records pertaining to all employees for a period of four years. These records must include the amount of hours worked, wages paid, and paid sick leave accrued.

What Employers Cannot Do

Employers must not:

  • require, as a condition of taking paid sick leave, that the employee secure a replacement worker to cover the hours the employee will miss on paid sick leave,
  • interfere with, restrain, or deny the exercise of—or the attempt to exercise—any right provided under the Ordinance, or
  • discriminate in any manner or take any adverse action against any person in retaliation for exercising rights protected under the Ordinance.

Remedies and Penalties

Administrative fines range from $500 for failing to (a) post the notice, (b) maintain payroll records or allow the City access to those records, or (c) provide a wage statement to $1,000 for each employee against whom retaliatory action was taken. Repeat offenders may be subject to additional fines.

The Ordinance also gives employees a private right of action, entitling them to sue for back wages, civil penalties, reinstatement, injunctive relief, and, of course, attorney’s fees. The City itself may recover administrative costs of enforcement, reasonable attorney’s fees and any civil penalties, and may order an employer to post a notice of non-compliance.

What Should Employers Do Now?

With the Ordinance’s effective date looming, Berkeley employers should take steps now, including the following, to achieve compliance:

  • Review existing sick leave policies and either implement new policies or revise existing policies to satisfy the Ordinance.
  • Post the required notices in all applicable languages.
  • Prepare notices in all applicable languages to provide to employees at the time of hire or once the Ordinance is implemented, as required.
  • Review policies on attendance, anti-retaliation, conduct, and discipline.
  • Train supervisory and managerial employees, as well as HR, on the new requirements.
  • Ensure that payroll records adequately reflect accrual and use of paid sick leave.

With the paid sick leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with this law and sick leave requirements generally. To stay up-to-date on Paid Sick Leave developments, click here to sign up for Seyfarth’s Paid Sick Leave mailing list.

[1] Berkeley joins Emeryville, Long Beach, Los Angeles, Oakland, San Diego, San Francisco, and Santa Monica as California cities with paid sick leave ordinances. The Long Beach ordinance establishes paid sick leave for certain hotel employers. Los Angeles has two paid sick leave ordinances, one of which—the Los Angeles Citywide Hotel Worker Minimum Wage Ordinance—applies only to certain hotel employers.

[2] The Ordinance determines the size of an employer by counting all persons performing work for compensation on a full-time, part-time, or temporary basis, including individuals made available to work through the services of a temporary services or staffing agency or similar entity.

Seyfarth Synopsis: While California courts have created annoying doctrines with respect to vacation pay, it remains the case that vacation pay is a matter of contract and that employers can avoid many problems with careful drafting of the vacation plan.

As we anticipate Labor Day weekend, note this mid-summer treat from the California Court of Appeal: its decision in Minnick v. Automotive Creations that when an employer’s vacation policy explicitly provides that employees don’t earn vacation until after their first year of employment, the policy is interpreted just like it was written, so that an employee who separated during his first year is not owed any vacation pay upon termination.

Is this holding really new? No and yes. Not new, of course, is the rule that California employers, absent a contract, need not provide any paid vacation at all. But employers that do provide paid vacation must comply with their policies and honor the principle, established by the California Supreme Court’s 1982 opinion in Suastez v. Plastic Dress-Up Co., that vacation pay, once “vested,” cannot be forfeited and must be paid (to the extent unused) when employment terminates (Lab. Code §227.3).

Also not new is the point that an employer may, by policy, impose a waiting period at the beginning of employment before vacation benefits begin to accrue. This kind of provision has been honored by the DLSE and by courts, so long as the employer implements the period consistently; that is, employers that want to avoid the accrual of paid vacation from the start of employment cannot then award vacation pay retroactively upon completion of some period of employment, but rather must provide that vacation pay does not begin to accrue at all until the waiting period is over.

What is new, and welcome, about Minnick is its definitive statement that employer policies can define how and when vacation has been “earned,” and can provide for advances of vacation pay not yet earned. For context, we harken back to Suastez, which interpreted Labor Code section 227.3 to mean that vacation pay is vested as it is “earned,” and that vested vacation pay cannot be forfeited. The vacation policy in Suastez simply provided: “One week—First Year; Two weeks—Second Year; Three weeks—Fifth Year.” The Supreme Court interpreted this language to mean that vacation pay started to accrue on day one, and was earned on a daily basis as the employee worked. Therefore, the employer violated the law when it failed to pay a pro rata share of the vacation pay earned during the year before the employee terminated, even though he had not completed the full year.

The spectre of Suastez haunts California employers when structuring vacation programs, as they strive to (a) avoid the negative of incurring potential liabilities to short-timers (in the form of accrued but unused vacation benefits) while (b) achieving the positive of offering paid vacation as soon as possible. The Court of Appeal provided additional guidance on this dilemma in its 2009 decision in Owen v. Macy’s, which recognized that an employer can lawfully fix the date on which vacation pay begins to accrue; in Owen, the employer imposed a waiting period of six months before vacation pay began to accrue. And, of course, it is common to have 90-day waiting periods for vacation accrual.

No case prior to Minnick had validated a one-year waiting period before accruals begin. Minnick notes that Suastez does not require vesting of vacation pay on day one of employment, and reasons that Suastez does not prohibit an employer from imposing a waiting period (of apparently any length):

[A]n employer may lawfully decide it will not provide paid vacation. By logical extension, an employer can properly decide it will provide paid vacation after a specified waiting period. This is similar to an employer’s authority to limit the amount of vacation pay that may be earned. If employers can lawfully restrict accrual at the back end [a la the often utilized “accrual cap” concept], it follows that employers can lawfully impose a waiting period at the front end.

Meanwhile, employers can address the desire to provide paid vacations as soon as possible by advancing unearned vacation pay (as the employer did in Minnick). (Whether unearned vacation pay could ever be recovered upon termination of employment is an issue that Minnick does not address).

The Minnick decision will be welcome news to employers who wish to impose a longer waiting period before vacation accruals start. And much of we’ve said about vacation applies equally to “paid time off” programs as well. A couple of caveats, though:

  • Drafting clear limitations on vacation accruals is crucial.
  • As to plans that use PTO to satisfy obligations to provide mandatory paid sick time under California (or local municipal) law, note that most paid sick time laws provide for accruals to begin upon employment, so imposing a waiting time for that benefit would get you in trouble.

For more information on this or any other pressing employment Cal-peculiarity, please reach out to your favorite Seyfarth attorney.

Seyfarth Synopsis: After hitting some major roadblocks, the San Diego Earned Sick Leave and Minimum Wage Ordinance has now been enacted. The Ordinance is to take effect this summer, most likely by the end of July. The Ordinance adds another perplexing piece to California’s paid sick leave patchwork.

After taking a nearly two-year hiatus, the San Diego Earned Sick Leave and Minimum Wage Ordinance was finally enacted on June 7, 2016, by San Diego voters. The Ordinance, originally approved by the San Diego City Council on August 18, 2014, hit a major snag when opponents sought a referendum. The City Council responded by suspending the Ordinance pending voter approval. The voters have now spoken.

San Diego joins six other California municipalities—San Francisco,[1] Oakland, Emeryville, Los Angeles,[2] Santa Monica,[3] and Long Beach[4]—that now supplement California sick pay law with additional paid sick leave entitlements. Because the statewide paid sick leave law does not supersede local ordinances, employers must comply with both the state and local laws, whichever most favors employees.

While the Ordinance’s effective date is currently unclear, signs point to a July 2016 effective date. We, of course, will keep you posted on any developments. In the meantime, employers should take steps now to ensure their policies and practices comply with the impending law.

Below is a detailed summary of the Ordinance and the key obligations it imposes on employers. Most notably, the Ordinance does not set a cap on either the amount of earned sick leave that employees can accrue in a year or the amount of unused earned sick leave that employees can carry over from year to year. The Ordinance also increases the minimum wage that San Diego employers must pay. The minimum wage will increase to $10.50 once the Ordinance goes into effect and will increase to $11.50 per hour on January 1, 2017. Starting January 1, 2019, the minimum wage will increase to an amount correlating with the cost of living.

Which Employers Are Covered by the Ordinance?

The Ordinance will cover all employers with at least one eligible employee working in San Diego, and defines “employers” as any person (including any association, organization, partnership, business trust, limited liability company, or corporation) who exercises control over the wages, hours, or working conditions of any employee, who engages an employee, or who permits an employee to work. Employers do not include persons who receive in-home supportive services care, under state law.

The Ordinance notes that covered employers need not provide additional earned sick leave where they provide their employees with an amount of paid leave under either a paid time off or other paid leave policy that meets or exceeds the Ordinance’s minimum standards and requirements, including the protected conditions and reasons for using sick leave.

Which Employees Are Covered by the Ordinance?

The Ordinance broadly defines a covered employee as one who performs at least two hours of work within the City of San Diego in one or more calendar weeks of the year and who qualifies as an individual entitled to minimum wage under California minimum wage law.

The following individuals are not subject to earned sick leave or the minimum wage increase:

  • Individuals authorized to obtain less than the minimum wage under a special license pursuant to California Labor Code sections 1191 or 1191.5.
  • Persons employed on a publicly subsidized summer or short term youth employment program.
  • Any student employee, camp counselor, or program counselor of an organized camp.
  • Independent contractors.

Earned Sick Leave Overview

How Much Sick Time Can Employees Accrue, Use, and Carry Over?

Employees accrue one hour of paid, earned sick leave for every 30 hours worked, at the same hourly rate or other measure of compensation that the employee earns. Accrual for employees exempt from California’s overtime laws is based on a 40-hour workweek, unless the employee’s regular workweek is less than 40 hours, in which case accrual is based on the regular work week. Employees will begin accruing earned sick leave on the later of the Ordinance’s effective date or the employee’s commencement of employment, and employees can begin using their accrued time 90 days thereafter.

Employers may limit use of sick leave to 40 hours in a 12-month period and can set a reasonable minimum increment for using sick leave, not to exceed two hours. Importantly, and as noted above, while the Ordinance sets an annual usage cap, accrual itself cannot be capped. In other words, employees must be allowed to accrue as much earned sick leave as possible based on their hours worked. Making matters worse for employers, unused leave, in whatever amount, must be carried over at year-end. In essence, employees can carry over an unlimited amount of accrued, unused sick leave, but may be limited to using 40 hours per calendar year. This accrual provision of the Ordinance is much more expansive than California’s statewide paid sick leave law, which provides that employers may cap the amount of accrued leave at 48 hours or six days, whichever is greater.

This distinction is problematic because it increases the risk of employee confusion. California law requires employers to provide employees with notice of their available number of sick leave hours either on the employees’ pay stubs, or in separate writings issued the same day as the employees’ paychecks. An employee who has, for example, 140 hours of accrued leave may not understand why only 40 hours of leave is available to use within a 12-month period.

The Ordinance’s unlimited accrual and carryover caps also make it risky for employers who seek to front-load earned sick leave in the form of an annual lump grant. Unlike the California statewide sick leave law, the Ordinance is silent on whether front-loading removes an employer’s accrual and year-end carryover obligations. As a result—and barring any future guidance from the City—this alternative sick leave delivery method may be unavailable to San Diego employers.

Under What Circumstances May Employees Use Sick Leave?

Qualified employees may use their earned sick leave for any of the following reasons:

  • If an employee is physically or mentally incapable of performing duties because of an illness, injury or medical condition, or is absent for the purpose of obtaining professional diagnosis or treatment of a medical condition or for other medical reasons, such as pregnancy or obtaining a physical examination.
  • If an employee is absent from work due to a family member’s[5] need to obtain treatment or professional diagnosis of a medical condition, or to provide care or assistance to a family member with an injury, illness or medical condition.
  • If, under certain circumstances, the employee or the employee’s family members are absent because of domestic violence, sexual assault or stalking.
  • If, by order of a public official because of a public health emergency, there is a closure of the employee’s place of business or the employee’s child’s school or child care provider.

What Notice Must Employees Provide When Using Sick Leave?

If the use of earned sick leave is foreseeable (e.g., scheduled doctor’s appointments), then an employer may require employees to provide up to seven days’ notice. But if use of sick leave is not foreseeable (e.g., a sudden illness), then an employer may require only as much notice as is practicable.

What Documents Can Employers Ask Employees to Provide When Using Sick Leave?

If employees are going to be absent for more than three consecutive work days then an employer may require employees to provide reasonable documentation that the employee used earned sick leave for a permitted purpose. Employers must accept doctor’s notes or other documentation signed by licensed health care providers indicating the need for the amount of leave taken. An employer however, may not require that the note specify the nature of the injury, illness or medical condition.

Is an Employer Required to Pay Unused Time upon Employment Separation?

No. Employers are not required to pay an employee for unused accrued sick leave upon termination. However,when an employee is rehired within six months of separation, the employer must reinstate the employee’s previously accrued, unused sick leave that was not paid upon separation, and the employee is entitled to use said leave.

Minimum Wage Increase Overview

What is the New Minimum Wage and When does it Go Into Effect?

Employees must be paid a minimum wage of $10.50 an hour upon the Ordinance’s effective date, which, again, we anticipate will occur in July 2016. Starting January 1, 2017, the minimum wage will increase to $11.50 an hour. Starting January 1, 2019, the minimum wage will increase by an amount corresponding to the prior year’s increase, if any, in the cost of living, as defined by the Consumer Price Index. If however, California or federal laws provide a higher minimum wage rate, then the minimum wage under this Ordinance will be increased to match the higher California or federal wage, effective on the same date that the increased California or federal wage takes effect.

Employer Obligations under the Ordinance

Employer Notice Requirements

Employers must post notices published by the City in a conspicuous place in the workplace informing employees of the current minimum wage, their right to the minimum wage, and their right to earned sick leave. The notice must also include information about the accrual and use of sick leave, the right to be free from retaliation, and the right to file a complaint with the designated enforcement office. The posted notice must be in English, Spanish and any other language spoken by at least five percent of employees at the employer’s job site.

In addition, at the time of hire or on the Ordinance’s effective date, employers are required to provide employees with written notice of the employer’s requirements under the Ordinance, and the employers name, address, and telephone number. Electronic notice is permitted.

Records Maintenance Requirement

Employers must create written or electronic records documenting employees’ wages earned, and accrual and use of sick leave, and retain these records for at least three years.

Prohibitions

Employers are prohibited from (1) requiring employees seeking to use their sick leave to search for or find a replacement worker, (2) disclosing the medical condition of the employee or his or her family member unless ordered to do so by the employee or authorized by federal or state law, and (3) retaliating against an employee who exercises his or her rights under the Ordinance.

Remedies/Penalties

An employer that violates any requirement of the Ordinance is subject to a civil penalty for each violation of up to, but not to exceed, $1,000 per violation. An employer failing to comply with the notice and posting requirements is subject to a civil penalty of $100 for each employee who was not given appropriate notice, up to a maximum of $2,000. Additionally, employees may file a complaint with the designated enforcement office or in court. Notably, filing a complaint with the enforcement office is not a prerequisite to filing a claim in court.

What Should Employers do Now?

With the Ordinance’s effective date looming, San Diego employers should take steps now, including the following, to achieve compliance:

  • Review existing sick leave policies and either implement new policies or revise existing policies so that they satisfy the Ordinance.
  • Post the required notices in all applicable languages.
  • Prepare notices in all applicable languages to provide to employees at the time of hire or once the Ordinance is implemented.
  • Review policies on attendance, anti-retaliation, conduct, and discipline.
  • Train supervisory and managerial employees, as well as HR, on the new requirements.
  • Ensure that payroll records adequately reflect accrual and use of earned sick leave and the increase in minimum wage.

[1] On June 7, 2016, San Francisco voters approved an amendment to the San Francisco Paid Sick Leave Ordinance.  The amended San Francisco law becomes effective on January 1, 2017.

[2] As discussed here and here, the Los Angeles City Council in April 2016 voted for 48 hours of paid sick leave for Los Angeles employees as an amendment to an LA City minimum wage ordinance. The LA ordinance is effective July 1, 2016.  Further, certain hotel employers must comply with additional compensated time off obligations set forth in the Los Angeles Citywide Hotel Worker Minimum Wage Ordinance.

[3] The Santa Monica paid sick leave law is effective January 1, 2017.

[4] Long Beach Resolution No. RES-12-0049 establishes paid sick leave and minimum wage requirements for certain hotel employers.

[5] Family members include an employee’s child, spouse, parent, grandparent, grandchild, sibling (including step-siblings), whether biological or not, or the child or parent of a spouse.

Employers usually reserve the right to approve in advance when their employees can schedule requested vacation time.  But can an employer with a garden-variety vacation/PTO policy (i.e., non-union, non-ERISA) ever require employees to use accrued vacation or PTO for an otherwise unpaid absence from work? 

Consider the following commonly occurring scenarios: 

1.  Sally needs to take a leave of absence to care for her ailing father. 

2.  Mike needs to take a leave of absence to deal with his own disabling medical condition. 

3.  Pregnant employee, Marcia, just found out she is ordered to bed rest for the remainder of her pregnancy. 

4.  Frank announces his plan to retire.  Then his supervisor makes her own announcement: Frank must use his vacation now, before his resignation is effective. 

5.  When the company closes for the last week of the year, all employees must use their vacation or PTO time. 

Remember the Rules:

Contrary to what many employees believe, vacation or PTO is not an entitlement.  It is a matter of agreement between the employer and the employee.  So, the accrual and terms of use can generally be subject to whatever reasonable restrictions and requirements the employer’s policy provides.  The key to validity here is the reasonableness of the restrictions. 

Reasonable restrictions can be things like:

✓     Only full-time employees are eligible for vacation
✓    
No one is eligible to accrue vacation until completing 90 days of employment
✓    
Vacation can be taken in minimum increments of, say, 4 hours or 1 day  Continue Reading So Vacate Already! — When Can An Employer Force Employees To Take Paid Time Off?

While vacation time is not limited to the summer months, this is the traditional time for employees to vacate the workplace and get a little R&R.  With visions of sun-drenched beaches, waterparks and road trips fresh in our minds, here is a reminder of the basic California rules on vacation, or paid time off.  The rules are complex, and are different in more significant ways than just about anywhere else in the country, so knock the water out of your ears and pay close attention. 

Q.  What’s the difference between vacation and PTO (paid time off)?

            In California, there is no difference.  Any paid time off that can be used at the employee’s discretion and is not tied to a particular event (like your birthday) is considered vacation.  This includes unrestricted “personal days” and “floating holidays.”  They’re all vacation. 

Q.  Can an employer implement a “use-it-or-lose-it” policy for vacations?

            No.  Unlike most everywhere else, California law does not permit employers to require forfeiture of vested vacation if employees do not take the vacation during a prescribed time period.  For example, it is not okay in California to have a policy that says “You get two (2) weeks of vacation a year, but if you don’t use it by December 31, it will be lost.”  Here in California, rather than being lost, the vacation balance rolls over in its entirety.  

Q.  But, can an employer cap the amount of vacation time an employee accrues?

            Yes.  In order to prevent vacation accruing ad infinitum, employers have two potential tools. 
                        One:  Have a vacation accrual cap in place.  That is, when an employee accrues a maximum amount of vacation (say 1.5 times the annual accrual rate), all accruals will stop until the employee uses some vacation and the vacation balance falls below the cap.  The employer’s policy on vacation accrual caps must be carefully drafted so that an employee has a reasonable time to use accrued vacation.  Simply capping at the annual rate of accrual is not a reasonable amount. 

                        Two:  Have a policy that mandates when vacation must be used (see next week’s post on this).

Q.  Does an employer have to pay out vacation when an employee terminates? 

            Yes.  In California, accrued vacation is treated the same as wages.  If an employee has accrued but unused vacation at the time employment ends, it must be paid out at the employee’s final rate of pay. 

Q.  Can an employer decide not to provide vacation pay to some employees, such as probationary, part-time or temporary employees?

Continue Reading Vacation Time — What Are the Rules Again?