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Posts Tagged ‘holiday pay’

With President’s Day coming up next week, I thought it would be a good time to answer and oft-asked question: Does the law require employers to pay employees for holidays?  In most cases, the answer is no.  Neither California nor federal laws require employers to pay employees for holidays, or to pay them a higher rate for holidays.  Some union contracts or public employment situations may require paid holidays, but otherwise it is up to the employer to decide whether it will offer paid holidays.

If an employer’s policies provides for paid holidays, however, then the employer is required to pay employees according to the employer’s policies.  Some employers offer paid holidays or pay a higher rate on holidays because it is one way to reward employees who have to miss time with their family in order to help the company meet its deadlines.  Other employers realize that if they want to attract and retain qualified employees, you can’t make them work on Christmas Day without some sort of premium pay (I’m talking about you, Ebenezer!).

Employer handbooks should identify the specific holidays the employer will observe (either by date or title), and explain whether employees will be paid a higher rate if they work on the holiday and the rate at which employees will be compensated for the holidays.  If you haven’t updated your handbook recently, now is an excellent time to review it with a qualified professional to ensure your policies are up to date.

Phillip J. Griego & Associates
95 South Market Street, Suite 520
San Jose, CA 95113
Tel. 408-293-6341
East Bay 925-364-4655

Original article by Robert E. Nuddleman of Phillip J. Griego & Associates

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Phillip J. Griego & Associates. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Phillip J. Griego & Associates cannot guarantee the confidentiality of anything posted to this blog.

The attorneys of Phillip J. Griego & Associates represent employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

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There are several new laws and amendments currently under consideration by the Governor of California, as well as the legislature.

The Recorder reports that three bills, AB 267, AB 325, and AB 559, are currently sitting before the Governor Brown.

  • AB 267 prohibits “choice of law” or “forum selection” clauses in employment contracts if those clauses require the use of non-California law or litigation outside of California.
  • AB 325 would allow up to 3 days bereavement leave and would prohibit discrimination against employees who take time off for the  death of a spouse, child, parent, sibling, grandparent, grandchild, or domestic partner.  A successful plaintiff could recover back wages and attorneys’ fees.
  • AB 559 would modify a rule denounced by the California Supreme Court (Chavez v. City of Los Angeles, 47 Cal.4th 970) granting courts the authority to limit attorneys’ fees awards when the case could have been brought in limited jurisdiction as opposed to unlimited jurisdiction.

The California Chamber of Commerce and other pro-employer entities oppose these bills, and in the past have successfully defeated similar bills while Schwarzenegger was in office.

Governor Brown has already signed into law the following bills affecting employers and employees in California:

  • AB 240 Compensation recovery actions: liquidated damages.
  • AB 587 Public works: volunteers.
  • SB 117 Public contracts: prohibitions: discrimination based on gender or sexual orientation.
  • SB 374 Gambling control: key employee licenses.
  • SB 559  Discrimination: genetic information.
  • SB 609 Public Employment Relations Board: final orders.

Of course we can’t forget about AB 889 regarding domestic workers, which I’ve discussed before.

If you work or do business in California, especially if you do business on any public works projects, you should familiarize yourself with any new requirements applicable to your industry.

Phillip J. Griego & Associates
95 South Market Street, Suite 520
San Jose, CA 95113
South Bay: 408-293-6341
East Bay: 925-364-4655

Original article by Robert E. Nuddleman of Phillip J. Griego & Associates

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Confidential or time-sensitive information should not be posted in this blog and Phillip J. Griego & Associates cannot guarantee the confidentiality of anything posted to this blog.

Your use of this blog does not create an attorney-client relationship between you and Phillip J. Griego & Associates. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship.

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I was looking for some information regarding the various leave laws that employers must consider, and came across a guide from the Department of Fair Employment and Housing.  It is a fairly good summary of most of the various leave laws impacting companies doing business in California.  I noticed it does not discuss leaves of absence under USERRA and other available leaves under California’s Military and Veterans Code, but it is still a good summary.

California employers and employees should ensure they are familiar with the various rights and obligations imposed by the leave laws impacting their work and should review their handbooks to ensure they are up to date.

Phillip J. Griego & Associates
95 South Market Street, Suite 520
San Jose, CA 95113
Tel. 408-293-6341

Original article by Robert E. Nuddleman of Phillip J. Griego & Associates

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Phillip J. Griego & Associates. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Phillip J. Griego & Associates cannot guarantee the confidentiality of anything posted to this blog.

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Labor Code Sections 201 and 202 require employers to pay employees all wages owed immediately upon termination or within 72 hours of the employee’s resignation.  If an employer willfully fails to pay all wages owed as provided in Labor Code Sections 201 and 202 are subject to penalties under Labor Code Section 203.  These “waiting time penalties” are equal to the employee’s daily wage multiplied by the number of days it takes for the employer to fully pay the employee, up to a maximum of 30 days.

Prior cases have held that since a one-year statute of limitations applies to claims for the recovery of penalties, a claim for penalties under Labor Code Section 203 has a one-year statute of limitations.  Prior courts held that because the statute allows an employee to sue for “these penalties at any time before the expiration of the statute of limitations on an action for the wages from which the penalties arise,” if the lawsuit alleges a claim for penalties as well as a claim for the actual wages that were unlawfully withheld, employees could use the longer statute of limitations (2 years for oral contract, 3 years for written contract or violation of a statute).  If the penalty claim did not include a claim for unlawfully withheld wages then the one-year statute of limitations applied.

Well, the California Supreme Court disagreed.  In Pineda v. Bank of America (SC S170758 11/18/10) the court found that the three-year statute of limitations applies to Labor Code Section 203 regardless of whether the claim is accompanied by an unpaid wage claim.

The court also held that a claim for restitution under Business & Professions Code 17200 (which typically has a four-year statute of limitations) cannot be used to recover Labor Code Section 203 penalties because the employees have no ownership interest in the funds.   It will be interesting to see how this rationale will be applied to future cases.

Phillip J. Griego & Associates
95 South Market Street, Suite 520
San Jose, CA 95113
Tel. 408-293-6341

Original article by Robert E. Nuddleman of Phillip J. Griego & Associates

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Phillip J. Griego & Associates. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Phillip J. Griego & Associates cannot guarantee the confidentiality of anything posted to this blog.

The attorneys of Phillip J. Griego & Associates represent clients throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

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Jennifer asks:

My employer just announced today that they will be closing the office the week of Thanksgiving, November 24-28. The 27th and 28th were already scheduled as holidays. I am a salaried exempt employee and thus, always get paid for the day after Thanksgiving while hourly employees in the office do not receive pay for this day. With today’s announcement, I was informed that exempt employees would not be paid for Nov. 24-26 and would have to use our PTO. Does the company have the right to do this or am I to get these days off with pay?

The quick answer is: No.  As discussed in prior articles, employers do not have to pay exempt employees any part of their salaries if the employees do not perform any work during a full workweek.  In order to avoid having to pay a full week’s salary for weeks when the employees only work a partial workweek, some employers simply close down for a full week. Employees can, of course, use any accrued PTO or vacation, but the employer is not required to pay the employee’s salary because the employee does not perform any work during the workweek.

Phillip J. Griego & Associates
95 South Market Street, Suite 520
San Jose, CA 95113
Tel. 408-293-6341

Original article by Robert E. Nuddleman of Phillip J. Griego & Associates

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Phillip J. Griego & Associates. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Phillip J. Griego & Associates cannot guarantee the confidentiality of anything posted to this blog.

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Like many employers, Advanced-Tech Security Services has a policy of paying “premium pay” (1.5 times the regular hourly rate of pay) when its security guards have to work on particular holidays. While premium holiday pay is not required, it is an added benefit to employees and an attempt to compensate the employee for having to work the holiday. When Ester Roman worked 12 hours on Labor Day, she was paid 1.5 times her regular hourly rate for all 12 hours. Ms. Roman believed she should have received time and one-half for the first 8 hours (based on the holiday pay plan), and 1.5 times the holiday pay rate for hours worked in excess of 8 hours that day. The Second Appellate District disagreed.

The employer was able to show that Ms. Roman receive 1.5 times her regular hourly rate for all overtime hours worked that week and the court held that the “regular rate of pay” does not include premium holiday pay. This case is interesting because determining an employee’s regular rate of pay can oftentimes be very confusing. For example, bonuses and commission are supposed to be included in the employee’s regular rate of pay. Unfortunately, Labor Code Section 510 (which requires overtime compensation “at the rate of no less than one and one-half times the regular rate of pay for an employee”) does not define “regular rate of pay.”

Finding no direction in California law, the Appellate Court loked at the FLSA which provides that the

“regular rate” of pay includes all “remuneration for employment,” subject to several exceptions, including “extra compensation provided by a premium rate paid for work by the employee on Saturdays, Sundays, holidays, or regular days of rest, or on the sixth or seventh day of the workweek, where such premium rate is not less than one and one-half times the rate established in good faith for like work performed in nonovertime hours on other days.” (29 U.S.C. §§ 207(e)(1), 207(e)(6))

Employers should keep in mind that the exceptions noted above only apply when the employee receives at least 1.5 times the employee’s regular hourly rate for the premium pay situations.

Employers are free to offer premium pay to employees that have to work weekends or holidays without worrying that they will have to pay increased overtime. Those interested in reading the case can find it at http://www.courtinfo.ca.gov/opinions/documents/B205186.PDF.

Phillip J. Griego & Associates
95 South Market Street, Suite 520
San Jose, CA 95113
Tel. 408-293-6341

Original article by Robert E. Nuddleman of Phillip J. Griego & Associates

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Phillip J. Griego & Associates. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Phillip J. Griego & Associates cannot guarantee the confidentiality of anything posted to this blog.

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