This article explains the basics.
In California, you may be able to go to your personal primary care physician right after you’re injured at work, but only if:
You may also predesignate a qualified medical group. You can use a form provided by the California Department of Workers’ Compensation (DWC Form 9783) to make your predesignation.
The rules are somewhat different if your employer or its insurer has contracted with a health care organization (HCO) to provide managed care for work-related injuries and illnesses.
When that’s the case, you may predesignate your personal physician, chiropractor, or acupuncturist; your employer must give you the proper predesignation form when you’re hired and once a year after that. (Cal. Labor Code §§ 4600, 4600.3 (2024).)
If you didn’t predesignate your personal doctor, you probably won’t be able to choose the initial physician you see for treatment. When your employer or its insurance company has established a medical provider network (MPN) you’ll generally have to choose a doctor in that network. However, there are some exceptions to this rule, including when:
Similarly, if the insurer has contracted with an HCO, you’ll generally be treated in the HCO immediately after your injury. If there’s no MPN or HCO contract, the claims administrator usually has the right to choose your treating doctor for the first 30 days after your injury. (Cal. Labor Code §§ 4600, 4600.3, 4616.3 (2024).)
It’s important that you feel comfortable with your treating physician, both in terms of the care you’re receiving and the decisions the doctor is making about your ability to work. If at any point you strongly disagree with your doctor’s opinions, you may want to switch treating physicians. The process for doing that depends on whether your employer has an MPN or HCO.
If your employer or its insurer hasn’t established an MPN or contracted with an HCO, you may switch to a new treating doctor once during the first 30 days after you reported your injury or illness.
However, unless you’ve given your employer the name of your personal chiropractor or acupuncturist before you were hurt, the claims administrator may generally choose the new doctor (if it does so within five days of your request).
After 30 days, you may choose your own new treating doctor within a reasonable distance from your home. You can switch doctors again if it’s reasonable. (Cal. Labor Code §§ 4600(c), 4601 (2024).)
If your employer has an MPN, you can ask to switch doctors at least twice, but the second and third doctors must be from the MPN. This is true even if you’ve been seeing your predesignated personal physician.
If you still disagree with the third doctor’s opinion, you can submit an application for an “independent medical review” with an impartial medical professional. Depending on the outcome of that review, you may then be able to select a doctor outside of the MPN. (Cal. Labor Code §§ 4616.3, 4616.4 (2024).)
If you’ve been seeing a treating doctor within an HCO, you can switch at least once to another doctor within the HCO. You may switch to a new medical provider (including a chiropractor or acupuncturist) after a waiting period: 180 days if you have employer-provided health insurance; 90 days if aren’t covered.
The new treating doctor must be within a reasonable distance from your home. The same rules for switching doctors apply if you’ve been seeing your predesignated personal physician, but your employer or insurer has contracted with an HCO. (Cal. Labor Code § 4600.3 (2024).)
If you’re having problems with medical issues in your workers' comp case—whether you're not satisfied with the care you've been receiving, you disagree with your doctor’s opinions about your diagnosis or work limitations, or the insurance company is dragging its heels on approving recommended treatment—it would be smart to speak with a workers’ comp lawyer.
Attorneys who are experienced in workers’ comp can help you navigate the complicated process of changing doctors and getting approval for needed medical care.
They may also be able to recommend good treating doctors who understand the complex workers’ comp system.
]]>Here are the basic rules for collecting unemployment compensation in California. In California, the agency that handles unemployment benefits is called the Employment Development Department (EDD).
You must meet three eligibility requirements to collect unemployment benefits in California:
Virtually all states look at your recent work history and earnings during a one-year base period to determine your eligibility for unemployment. In California, as in most states, the base period is usually the earliest four of the five complete calendar quarters before you filed your claim for benefits. For example, if you file your claim in July 2024, the base period would be from April 1, 2023, through March 31, 2024. However, if you didn't earn enough during the regular base period, the EDD will use the most recent four quarters as an alternate base period.
During the base period, you must have earned at least:
You must be out of work through no fault of your own to qualify for unemployment benefits.
If you are laid off, lose your job in a reduction-in-force (RIF), or get "downsized" for economic reasons, you will meet this requirement.
If you are fired because you lacked the skills to perform the job or simply weren't a good fit, you should be able to collect benefits. If you are fired for misconduct, however, you will not be eligible for unemployment benefits. In California, misconduct makes you ineligible for unemployment benefits only if all four of these statements are true:
If you quit your job, you won't be eligible for unemployment benefits unless you had a good reason for quitting, meaning that a reasonable person who truly wanted a job would have left under the same circumstances.
If you had good cause related to your job (such as illegal discrimination, harassment, unsafe working conditions, or fraud by your employer), you will be eligible for unemployment benefits.
In this situation, you must have taken reasonable steps to resolve the situation before quitting, which means you must have discussed the problem with your employer and allowed a reasonable amount of time for the employer to fix the situation before you left the job.
If you left the job for compelling family or health reasons—because you are facing domestic violence, need to relocate to follow your spouse, or need to care for a seriously ill family member, for example—you likely will be found to have good cause to quit, and you will be eligible for unemployment benefits.
To maintain your eligibility for unemployment benefits, you must be able to work, available to accept a job, and looking for work. If you are offered a suitable position, you must accept it.
Normally, you must conduct a reasonable search for work, and certify (on your claim for benefits) that you have done so. You should keep records of the employers you have contacted, the dates you made contact, and the outcome. The EDD may ask you to provide this information.
Learn more about the general unemployment claims process, including tips on filling out the forms. If your claim is denied, you have the right to appeal that decision; learn how to appeal an unemployment denial in California.
]]>Generally, California employees have the right to be paid at least twice a month. Compensation earned between the 1st and the 15th of the month must be paid no later than the 26th day of the same month. Compensation earned from the 16th of the month through the end of the month must be paid no later than the 10th day of the following month.
If an employer pays employees weekly, every two weeks, or twice a month according to a different earning schedule, it may comply with the payday laws by paying employees for work performed within seven days after the end of the pay period. For example, an employer that pays employees every two weeks is following the law as long as it pays employees within a week after each two-week payroll period closes.
Employers must designate paydays that meet the requirements above, and notify employees of the time, date, and place they will be paid.
The laws provide some exceptions for certain types of employees. For example, executive, administrative, and professional employees (as defined by California’s overtime laws) may be paid only once a month, as long as they are paid by the 26th day of the month and their paychecks includes their entire salary for the month.
Employees who work for a farm labor contractor must be paid every week.
California law requires employers to give employees an itemized written statement with every paycheck. This statement, which can be in the form of a detachable pay stub or a separate document, must include the following information:
California employees are also entitled to examine their payroll records within 21 days of a request to an employer. You may also request a copy of your payroll records, although your employer may charge you for reasonable copying costs.
If your employer fails to give you access to your records, you may be owed a $750 penalty from your employer.
If you are fired, laid off, or otherwise involuntarily separated from your job, you are entitled to your final paycheck immediately (that is, at the time of your firing or layoff). Your employer may not wait until the next scheduled payday or even the next calendar day to pay you what you are owed. And, your final paycheck must include all of your accrued, unused vacation time or PTO.
If you quit your job and give your employer less than 72 hours’ notice, your employer must pay you within 72 hours. If you give your employer at least 72 hours’ notice, you must be paid immediately on your last day of work. Like employees who are fired or laid off, your final paycheck must include all of your accrued, unused vacation time or PTO.
To discourage employers from delaying final paychecks, California allows an employee to collect a “waiting time penalty” in the amount of his or her daily average wage for every day that the check is late, up to a maximum of 30 days. For example, if you typically earn $80 a day and your employer is ten days late with your check, you may be able to collect a penalty of $800.
If you quit or lost your job in California and your employer fails to pay you your wages in a timely manner, the best option is usually to file a wage claim with the California Labor Commissioner's Office.
Another, likely more expensive option is to file a lawsuit against your employer in court. Depending on the amount of money in question, you may be eligible to file your case in small claims court.
If your employer refuses to pay you on time or issue your final paycheck, contact an experienced employment lawyer to discuss your legal options.
]]>When you receive tips as part of your compensation, your legal rights under wage and hour laws become a bit more complicated. The rules about what counts as a tip, how much your employer must pay you, and whether you have to contribute to a tip pool (among other things) all depend on the laws of your state.
Although federal law also covers these issues, employers must follow whichever law—federal, state, or even local—is the most generous to employees. California law is very protective of employees, so state laws typically trump federal laws on wages and hours.
Here's what you need to know about California legal protections for employees who receive tips. You can find out more about California’s minimum wage, tip rules, overtime standards, and other wage and hour issues at the California Division of Labor Standards Enforcement.
The basic rule of tips is that they belong to the employee, not the employer. Under California law, an employer cannot take any part of a tip that’s left for an employee.
This means that you can’t be forced to share your tips with the owners, managers, or supervisors of the business (who are all considered to be the agents of the employer). Your employer also can’t count your tips towards its minimum wage obligations.
In most other states, employers may pay employees less than the minimum wage, as long as the employees earn enough in tips to make up the difference (called a “tip credit”).
However, California does not allow employers to take tip credits. Employers must pay employees at least the California minimum wage for each hour worked, in addition to any tips they may receive. (You can find the current minimum wage in our article on California wage and hour laws.)
California law does allow tip pooling, though. An employer may require a group of employees to pool together their tips, which are then distributed among the employees in the pool. However, California employers must follow certain guidelines in order to create a valid tip pool.
First, only certain employees can be included in the tip pool. Employees may be included in the tip pool only if they are in the “chain of service” that results in a tip from a particular customer. In general, servers, bartenders, hosts, and bussers are considered to be in the chain of service, while cooks, dishwashers, and cashiers are not. The one exception to the “chain of service” rule is that managers and supervisors cannot partake in the tip pool even if they provide direct table service.
Second, the tips must be distributed in a fair and reasonable manner. There must be a fair system for deciding how much in tips is paid out to each employee, usually in proportion to the amount of service the employee provided to the customer. In general, the lion’s share of the tip should go to the server, with a smaller portion going to the busser, and an even smaller portion going to the bartender or host.
The California Department of Labor Standards Enforcement, the agency that enforces wage and hour laws, has found the following distribution to be legal in a traditional restaurant setting: 80% to wait staff, 15% to bussers, and 5% to bartenders. However, whether a distribution is fair depends on the circumstances of each business and is decided on a case-by-case basis.
It's not as easy as you might think to figure out exactly how much of what a customer pays is a "tip." If the customer pays in cash and tipping is voluntary, whatever amount the customer leaves over and above the charge for products or services (plus tax) is a tip. However, if the employer imposes a mandatory service charge, or the customer pays by credit card, the rules might be different.
Some restaurants tack a “mandatory service charge” on to bills for large tables of diners, private parties, or catered events. Under federal and California law, this isn't considered a tip. Even if the customer thinks that money is going to you and doesn't leave anything extra on the table, your employer can keep any money designated as a "service charge."
The law generally considers this part of the contract between the patron and the establishment, not a voluntary acknowledgment of good service by an employee. Many employers give at least part of these service charges to employees, but that's the employer's choice: Employees have no legal right to that money.
Under IRS rules, any portion of a mandatory service charge that the employer pays out to employees must be treated as wages, not tips. This means the employer must withhold and pay Social Security and Medicare (FICA) tax on these amounts, may not claim a credit against its tax obligations for these amounts (as it can for tips), and must include them as part of the employee’s hourly wage when determining overtime payments, among other things.
The rule applies only to mandatory service charges. For the amount to count as a tip rather than a service charge, all of the following must be true:
If the tips are left by credit card, some states allow employers to subtract credit card processing fees from the employee’s tips. The employer would typically subtract a proportionate amount of the tip to cover the employee’s “share” of the fee. For example, if the credit card company charges a 3% fee, the employer could legally reduce the employee’s tip by 3% as well.
However, California doesn’t follow this rule. Under California law, the employer has to give the employee the full tip left by the customer and pay the entire credit card processing fee itself.
]]>It’s also common for employers to ask about criminal history on a job application, often ending the hiring process for many applicants before it has begun. Fortunately, job seekers with criminal records have some strong protections under California law.
Under California’s Fair Employment and Housing Act (FEHA), also known as a “ban the box” law, it is illegal for private and public employers with five or more employees to ask about criminal history until the later stages of the job application process (Ca. Gov. Code § 12900 (2023)).
The purpose of the law is to encourage employers to assess each applicant’s fitness for a job, rather than categorically denying employment to those with a criminal past. The law sets out a series of detailed requirements that employers must comply with before considering a job candidate’s criminal history or rejecting an applicant based on that history.
As its nickname suggests, the “ban the box” law requires employers to remove a question that is commonly found on employment applications: “Have you ever been convicted of a felony?” Applicants can no longer be asked to check a box “yes” or “no” in response to this question.
In fact, California employers cannot ask about, look into, or consider criminal history at all until the applicant has received a conditional offer of employment. The law prohibits employers from inquiring about criminal history using background checks, questions on job applications, internet searches, or in any other manner.
In addition, employers may not include statements in job postings, advertisements, or other materials indicating that they will not consider job applicants with a criminal history. For example, employers are prohibited from using language such as “must have clean record” or “no felons” in job listings.
If an applicant volunteers information about their criminal history before receiving a job offer, the employer may not consider that information until after making an offer.
If an employer violates the law by asking about an applicant’s criminal history before making an offer, and the applicant fails to disclose their criminal history at that point, the employer can’t refuse to hire the applicant based on that failure. The employer is also prohibited from making any other employment decisions based on that failure.
There are a few limited exceptions to these rules, such as when the employer is a criminal justice agency or a state or local agency required by law to conduct a criminal background check.
Once the employer makes a conditional offer of employment, it may ask about and consider the applicant’s conviction records. Some records, including arrest records that did not lead to conviction, are off limits at any point in the hiring process (see “Criminal Records That Employers May Never Consider,” below).
However, before denying employment based on a conviction record, the employer must conduct an “individualized assessment”—a reasoned, evidence-based determination as to whether the applicant’s past conviction has a direct and adverse relationship with the specific job duties of the position. At a minimum, the employer must consider three factors in conducting the individualized assessment.
First, the employer must consider the nature and severity of the offense. In considering this factor, the employer may take into account things like:
Second, the employer must consider how long it’s been since the applicant committed the offense and served the sentence. In considering this factor, the employer may take into account things like:
Third, the employer must consider the nature of the job for which the applicant is applying. In considering this factor, the employer may take into account things like:
For example, suppose an applicant has a conviction related to prescription drug abuse from five years ago, but has completed rehab and been sober since. Depending on the circumstances, the conviction might be a reason to deny employment for a position at a pharmacy but not for a position at a call center.
If a licensing, regulatory, or government agency or board confers a right, privilege, or benefit on the applicant that is required to do the job at issue, this tends to prove that the applicant’s conviction history is not directly and adversely related to the specific duties of the job. For example, if an applicant has received a teaching credential from the state commission on credentialing, this is evidence that the applicant’s conviction history is not directly and adversely related to the specific duties of a job as a credentialed teacher.
If, after completing the individualized assessment, the employer reaches a preliminary decision not to hire the applicant, the employer must provide the applicant with written notice of the decision and give the applicant an opportunity to respond. The notice must:
It is up to the applicant to decide whether to submit evidence in response to the employer’s notice; any such evidence must be voluntarily submitted. Employers may not refuse to accept any additional evidence voluntarily submitted by the applicant at any stage of the hiring process.
California law is very broad with respect to the type of evidence an applicant may submit in response to an employer’s notice. Examples of evidence of rehabilitation or mitigating circumstances the employer may consider include, but are not limited to:
For example, the applicant might submit evidence of completion of a drug rehabilitation program or the applicant’s efforts to make amends for the crime.
In considering the applicant’s evidence of rehabilitation or mitigating circumstances, the employer may take into account all of the same factors it’s required to consider in conducting the individualized assessment, as well as the following factors:
The employer must consider any information provided by the applicant before making a final decision. If the final decision is to deny employment, the employer must provide written notice of this decision.
The notice must include information regarding any procedure the employer has for the applicant to challenge the decision and the right to contest the decision by filing a complaint with the California Civil Rights Department.
In California, certain types of criminal records are off limits for employers. Employers may not ask about or consider the following at any time during the hiring or employment process, even if voluntarily provided by the applicant:
Federal and California employment laws prohibit most employers from discriminating against applicants based on certain protected characteristics, such as race, gender, and national origin.
Because arrest and incarceration rates are disproportionately higher for African American and Latino men and women, an employer that adopts a blanket policy of excluding all applicants with a criminal record might be guilty of race discrimination.
Under California law, an employer’s criminal history policies or practices are considered discriminatory under FEHA if they result in a significant difference in the rate of selection in hiring, promotion, or other employment decisions that works to the disadvantage of a protected class.
If an applicant can show that an employer’s practice of considering criminal history has an adverse impact on a protected class, the practice is in violation of FEHA unless the employer can show that it’s job-related and consistent with business necessity. In general, this means that the employer must consider whether the criminal history would make the applicant unfit for the position or would pose an unacceptable level of risk.
Even if the employer shows that its policy or practice of considering conviction history is job-related and consistent with business necessity, applicants who are adversely impacted may still prove a violation of FEHA if they can show that there is a less discriminatory policy or practice that serves the employer’s goals as effectively as the challenged one without significantly increasing the cost or burden on the employer.
If you believe an employer has violated FEHA in its consideration of your criminal history, contact an employment lawyer. An experienced employment lawyer can help you determine whether an employer failed to comply with the law governing when and how to consider your criminal history.
An employment attorney can also help you assess whether an employer relied on a criminal background check policy or practice that discriminated against you based on your membership in a protected class.
]]>Employers who choose to offer vacation must follow certain guidelines. California law considers accrued vacation to be a form of wages that have already been earned by the employee. Among other things, this means that accrued vacation cannot expire and must be paid out to an employee upon termination or separation from the employer. The same rules apply to PTO.
Sick leave is not subject to the same rules as vacation and PTO. California employers are required to provide a minimum number of paid sick days per year. (To learn the rules on eligibility and accrual, see our article on California paid sick leave)
In general, vacation accrues over time as an employee works. For example, if a vacation policy gives an employee ten days of vacation each year, he or she will accrue five days of vacation after working for six months.
Employers can designate a waiting period at the beginning of employment before vacation starts to accrue, though. The waiting period often correlates with the 90-day introductory period, but can be as long as the first year of employment.
Employers can also give vacation to certain groups of employees but not others, as long as they don’t discriminate based on a protected characteristic, such as race or gender. For example, employers may give vacation only to full-time employees or only to managers.
Unlike some other states, California does not allow “use-it-or-lose-it” vacation policies. Under a “use-it-or-lose-it” policy, accrued vacation must be used by a certain date – usually by the end of the year – or it is forfeited. Because accrued vacation is considered earned wages, use-it-or-lose-it policies are seen as illegally withholding wages owed to employees.
Employers can, however, place a cap on vacation accrual. In other words, once employees reaches a certain number of days, they will stop accruing vacation until they use some of their vacation. This allows employers to maintain some control over vacation accrual and prevent employees from racking up unreasonable amounts of vacation time.
While there’s no set number for a permissible cap, the California Department of Labor Standards Enforcement (DLSE) – the agency that enforces California wage and hour laws – has provided some guidance. In the past, the DLSE has held that a vacation cap could be no less than 1.75 times the annual accrual rate. However, the DLSE has since withdrawn that bright line rule and instead states only that the cap must be “reasonable.” While a 1.75 cap is probably still the safest ratio, a 1.5 cap may also be within legal limits. The example below shows how the vacation cap works.
Example. Sunshine Inc. provides all full-time employees with ten days of paid vacation each year. Sunshine’s vacation policy has a cap of 1.75 times the annual accrual rate, or 17.5 days (1.75 × 10 days). An employee’s vacation will roll over year to year, but once he or she reaches 17.5 days, no more vacation will accrue until the vacation bank falls below that amount.
Employers have a lot more freedom to shape their vacation policies when it comes to scheduling. In general, employers can decide when and how employees may schedule their time off from work.
An employer may, for example, require that employees submit vacation requests a certain number of days or weeks in advance. Employers can also set aside certain “blackout” dates during which no employees may take vacation, such as the holiday season for a retail business or the tax season for an accounting firm. And, an employer can place limits on the number of employees who can be out on vacation at the same time.
As long as the employer’s decisions are not discriminatory based on race, sex, religion, disability or another protected class under federal or California law, the employer is free to set the parameters in which vacation is scheduled.
All accrued, but unused, vacation must be paid to an employee who separates from the employer. Vacation is considered earned wages and must be paid at the same time as the employee’s final wages:
Paid sick days that are part of a separate sick leave policy are not subject to the same rules and do not have to be paid out when an employee leaves the company. However, when sick days are included in a general PTO policy, all of the PTO is treated like vacation and must be paid out on separation.
Some employers also offer a set number of “personal days” or “floating holidays” each year. In general, holidays that are tied to a specific event don’t need to be paid out upon separation. For example, if an employer offers paid holidays for Christmas, New Year’s, or the employee’s birthday or work anniversary, these do not need to be paid out.
But, when the personal days or floating holidays are not tied to a specific event, and may be taken at any time during the year for any reason, they are treated as vacation. In other words, personal days or floating holidays cannot be subject to a use-it-or-lose-it policy and must be paid out upon separation.
Employers are free to advance vacation to employees, but they cannot deduct advanced vacation from a final paycheck if an employee leaves earlier than expected. For example, if an employee has only one week of accrued vacation, but takes two weeks of vacation and then quits, the employer cannot deduct the week of vacation from his or her final paycheck.
Because vacation is considered earned wages, an employer may be liable for “waiting time penalties” for failing to timely pay out vacation with the final paycheck. The waiting time penalty is the employee’s average daily wage, for up to 30 days. Employees who don’t receive their vacation in their final paychecks can file a wage claim with the DLSE, or sue in court, to recover this penalty.
If your employer has failed to follow California's rules on vacation accrual, or hasn't paid out your final paycheck on time, consider contacting an employment law attorney to discuss your legal options. You can find one using our Lawyer Directory.
]]>The state of California made headlines in 2020 by passing Assembly Bill 5 (AB5), a controversial law that made it significantly harder for employers to classify workers as independent contractors.
Less than a year later, California voters approved Proposition 22 ("Prop. 22"), which created an exemption to AB5 for Uber, Lyft, and other app-based ride-hailing services.
In 2021, a California state judge ruled Prop. 22 unconstitutional, but in 2023 a California appeals court overturned the bulk of that decision.
Although further legal challenges are likely, as of 2023 Uber drivers and other rideshare drivers in California are independent contractors, not employees.
It’s important to know why it matters whether a company classifies a worker as an employee or independent contractor. In general, employees are entitled to a host of protections and benefits that independent contractors are not necessarily entitled to, including:
When companies misclassify workers as independent contractors, they are likely depriving these workers of the various benefits they are entitled to under the law. This can lead to claims for unpaid wages and penalties.
Whether a worker is an employee or an independent contractor is relevant in many contexts, and each government agency uses a slightly different analysis.
For more information, see Independent Contractor or Employee: How Government Agencies Make the Call.
The independent contractor classification is particularly relevant to California’s wage and hour laws, which provide a number of rights and benefits to employees but not independent contractors.
Historically, California used the flexible, multi-factored Borello test to determine whether a worker is an employee for purposes of California wage orders. However, in 2018, the California Supreme Court rejected this test in favor of a more restrictive three-prong test called the “ABC” test. Dynamex Operations W., Inc. v. Super. Ct., No. S222732 (Cal. Apr. 30, 2018).
Assembly Bill 5 (which, as mentioned above, does not apply to Uber and other rideshare drivers) requires employers to satisfy the following three prongs of the ABC test to classify a worker as an independent contractor:
The requirements of Assembly Bill 5 mean that California employers generally must clear a high bar to classify their workers as independent contractors. But the law doesn't apply to Uber, Lyft, and other app-based ride-hailing and delivery services. (In addition, read about the many other job categories exempt from AB5.)
If you've been misclassified as an independent contractor, you might be entitled to minimum wage pay, overtime pay, penalties, and more.
To find out your options, speak to an experienced California employment lawyer today.
]]>From skyrocketing utility payments to additional costs for phone and internet use, many remote workers are now shouldering the expenses that their employers used to pay. But are employees really responsible for expenses incurred while working from home?
In California, at least, the answer is no. California is one of about two dozen states with laws requiring employer reimbursement of employee work expenses—and one of only a few states to make clear that those laws apply to remote work. (Cal. Lab. Code § 2802 (2022).)
In fact, 2022 saw a spate of California lawsuits by remote workers demanding reimbursement from large employers such as Amazon, Visa, and Bank of America for work-from-home expenses incurred during the pandemic.
As these lawsuits continue to make their way through the courts, the question for California workers remains: Which of your WFH expenses must be reimbursed by your employer?
Under California law, your employer must reimburse you for any “necessary” expenses incurred while you’re working from home.
Expenses are considered “necessary” if they’re required for you to do your job. This is true whether you’re working in the office (or other worksite) or working remotely.
For example, if your job involves scientific research, then it might be necessary for you to pay for a subscription to an online science journal; your employer would have to reimburse you for that expense. If, on the other hand, you feel you are a more effective leader if you stay abreast of developing news, but doing so is not part of your job duties, then subscriptions to various newspapers are not “necessary” for you to do your job and would not be reimbursable.
California courts have also found that when it comes to monthly expenses such as cell phone or internet bills, “necessary” expenses generally include a “reasonable percentage” of such costs.
For example, one court found that when an employee had to use his personal cell phone to make work calls, his employer was required to reimburse him for a portion of his phone bill even though the employee did not incur any additional expenses because he had an unlimited data plan. The court found that any other interpretation would result in an unfair windfall to the employer.
While the determination of whether an expense is “necessary” varies depending on the circumstances of a particular case, generally speaking, California employees who work from home are likely entitled to reimbursement for the following expenses:
Although the law regarding these expenses is not yet decided, remote California workers may also be entitled to reimbursement for:
Employers and courts are more likely to find that expenses incurred while working from home are “necessary” if remote work is required or encouraged by your employer.
However, if your organization has returned to in-person work, but you choose to work from home, it’s less likely that your business expenses will be seen as “necessary”—as you could have avoided them by working from the office or other worksite.
While many employers require you to submit expense reports or other paperwork in order to be reimbursed, California courts have held that reimbursement requests aren’t necessary if your employer has reason to know about the expenses you’re incurring.
In Williams v. Amazon, a high-profile case arising from the pandemic, a California software development engineer alleged that Amazon failed to properly reimburse its employees for expenses incurred while they were working from home during the COVID-19 pandemic (2022).
Amazon filed a motion to dismiss the plaintiff's lawsuit, arguing that it didn’t have to reimburse its employee’s expenses because he hadn’t submitted reimbursement requests.
But in June 2022, the court denied Amazon’s motion to dismiss, finding that Amazon knew or should have known that its employees who work from home incurred basic costs related to remote work—including expenses related to internet, electricity, and physical space.
In overruling Amazon's motion to dismiss, the court found that the lawsuit could move forward, although it has not yet decided the ultimate question of whether Amazon must actually reimburse employees for their WFH expenses.
If your employer has failed to reimburse you for expenses you incurred while working from home, consider raising the issue with your employer. Because many companies are still adjusting to the "new normal" of remote work, they might be unaware of their legal obligation to reimburse employees for necessary expenses. For that reason, it might be helpful to refer your employer to the relevant law.
If your employer refuses to meet its legal requirements, it might be worth contacting an employment attorney to discuss your legal options.
]]>California gives employees and former employees the right to inspect any personnel records relating to their performance or to any grievance concerning them. While California employees have broad rights to view documents relating to their employment, there are a few exceptions. Employers need not provide letters of reference, records of any criminal investigation involving the employee, records that were obtained prior to the employee’s employment, or certain records made by an examination committee or in connection with a promotional exam. Employers may also strike out the names of any non-supervisory employees that appear in your personnel file documents.
Employers must keep these records for at least three years after an employee is terminated or otherwise separates from the employer. Employers who fail to comply with an employee’s request to inspect his or her personnel records are subject to a $750 penalty.
Employees must request an inspection in writing. Although employers are required to provide a form for making this request, employees don’t have to use the employer’s form (as long as the request is in writing). Employers must make the records available within a reasonable time, not to exceed 30 days. Employees may also request copies of the records, but will have to pay for the cost of copying. The representative of an employee or former employee may also make the request.
Current employees are entitled to view their records at their worksites or at another place agreeable to both employee and employer. However, employers are not required to allow employees to view their records during their regular work hours.
Former employees may view their records at the location where the employer stores the records or at another place agreeable to both employee and employer. If the employee was terminated for violating a law or workplace policy relating to harassment or workplace violence, the employer may comply by mailing the records to the former employee or by making them available somewhere other than the workplace, as long as it’s a reasonable distance from the former employee’s home. A former employee may also ask the employer to copy and mail the records, but will be responsible for copying and postage costs. Employers are required to respond to only one request from a former employee per year.
Employers need not provide personnel records to a former or current employee who has filed a lawsuit against the employer based on an employment matter. The right to inspect is suspended while the lawsuit is pending.
Employees in California have the right to inspect and copy their payroll records, as well. Employers are required to provide California employees with certain payroll information when they receive their paychecks, either in the form of a separate document or a paycheck stub or voucher, including how many hours the employee worked, the rate of pay for each hour, deductions from pay, gross wages, and net wages. Employers who fail to provide the required payroll information are subject to a $50 penalty for the first violation, and $100 for each subsequent violation, up to a maximum penalty of $4,000.
Employers must make payroll records available for inspection and copying at an employee’s request. Employees may make this request orally or in writing. Once an employee makes the request, the employer has 21 days to provide the records.
California law gives employees the separate right to request and receive a copy of any documents they have signed relating to their jobs. For example, employees may request copies of employment contracts, handbook acknowledgment forms, nondisclosure agreements, at-will agreements, and any other employment documents bearing their signatures. The law doesn’t specify how quickly employers must comply with employee requests. However, many employment-related documents that employees are asked to sign are put in their personnel files and should be covered by a personnel file request.
]]>Here’s what to expect if you decide not to return to work when your parental leave is up.
You're not legally required to return to work after maternity or paternity leave. You can quit your job at any time, for any reason. Unless you are required by contract to stay in your job for a certain amount of time, you’re an at-will employee and are legally entitled to quit.
In fact, the law does not even require that you give notice before quitting, although many employees choose to give at least two weeks’ notice as a matter of courtesy. Under the California Family Rights Act (CFRA) and the Family and Medical Leave Act (FMLA), most employers are required to hold your job for you while you’re on leave, so the sooner you let them know you’re not coming back, the sooner they can begin looking for a replacement.
California has some of the most generous parental leave laws in the country. If you're eligible under these laws, you could receive everything from paid family leave to unpaid pregnancy disability leave to paid short-term disability benefits—or some combination of all three. In addition to the benefits provided by the state, most employers in California are required to continue your health care benefits during your time off.
If you decide not to return to work when your leave is over, you might lose some of these benefits, though others will not be affected.
If you were receiving health insurance benefits before your parental leave, employers that are covered by the CFRA must continue to provide you with those benefits during your leave (although you will be required to pay your portion of the premiums). However, if you decide not to return to work after your leave, your employer has the legal right to seek reimbursement of the health insurance costs it paid on your behalf. Not all employers will actually exercise this right, but it’s important to be aware of this possibility. Under the FMLA, the right to reimbursement does not apply if you return to work for 30 days or more following your leave.
Pregnant women can receive up to four weeks of disability payments before their expected due date, and up to eight weeks of disability payments after delivery to recover from childbirth. In addition to disability insurance benefits, new moms are generally entitled to receive up to eight weeks of Paid Family Leave (PFL) benefits when their disability claim ends. New dads can also receive up to eight weeks of PFL benefits.
To be eligible for PFL and disability benefits, new parents need to be employed or actively looking for work at the time their leave begins (or, in the case of pregnancy disability, at the time the disability begins), and have earned $300 from which disability deductions were withheld during a 12-month “base period” ending the quarter before their claim begins.
Because eligibility for these benefits depends on whether you’ve previously paid into a state fund, as well as on your employment status at the time of leave or disability, you’re unlikely to lose these benefits if you decide not to return to your job after parental leave.
If you quit while on parental leave, your employer is still obligated to pay you all of your outstanding wages or salary. Your employer can’t withhold your last paycheck, even if you owe your employer reimbursement of health insurance benefits.
If you quit your job voluntarily, you generally aren’t eligible for unemployment benefits, so in most cases quitting during parental leave will disqualify you from receiving unemployment.
However, California law provides that if you have “good cause” to quit, you might still be entitled to unemployment benefits. California courts have found good cause when an employee quits to care for a seriously ill family member (including a child), to relocate with a spouse, or to take another job that fails to materialize, among other things.
If you have questions about your company's parental leave policy, which might be more generous than state law, ask your human resources department or supervisor. For questions about your leave rights under state and federal law, you might wish to contact an experienced employment lawyer, especially if you're thinking about leaving your job when parental leave expires.
]]>Yes, if your employer has a paid vacation or PTO policy, you may elect to use your accrued leave to supplement your PFL benefits. This is called “integration.” Your combined PFL benefits and paid leave can be up to 100% of your normal wages, but you cannot receive more than that. For example, if you normally earn $1,000 per week and your weekly PFL benefit is $550, you can receive a maximum of $450 from your employer in PTO or vacation. If your employer agrees, you may also integrate PFL benefits with your accrued sick leave.
California used to have a one-week waiting period before an employee received PFL benefits, but that no longer applies.
Example: Carlton plans to take five weeks off when his son is born. He works a 40-hour week and has three weeks of PTO saved up (120 hours). He is eligible to receive 55% of his salary through California’s paid family leave program. He wants to use his PTO to supplement his pay so that he receives his full salary during his leave. Here’s how he will be paid:
To learn more, including whether you are entitled to vacation or PTO, see our article on California vacation and paid time off rules.
Go back to main page of California Paid Family Leave FAQ
California employers must also comply with the federal Family and Medical Leave Act (FMLA), which allows eligible employees to take up to 12 weeks of unpaid leave per 12-month period, with the right to reinstatement, for certain reasons.
California's Family Rights Act (CFRA) is essentially the state version of the federal Family Medical Leave Act (FMLA), although the CFRA applies to smaller employers and covers more family members than does the FMLA.
Under the CFRA, employers with five or more workers must provide eligible employees with up to 12 weeks of unpaid, job-protected leave over a 12-month period for certain qualifying reasons. Those reasons include:
A serious health condition for purposes of family leave means an illness, injury, impairment, or physical or mental condition that requires:
Employees are eligible for CFRA leave if they have more than 12 months of service and at least 1,250 hours of service over the previous 12 months.
California employers must comply with the FMLA if they have at least 50 employees for at least 20 weeks in the current or previous year. Employees are eligible for FMLA leave if:
FMLA leave is available if an employee needs time off to:
You can find more information on these last two types of leave in Military Family Leave for Employees.
Employees in California may take up to 12 weeks of leave in a 12-month period for a serious health condition, bonding with a new child, or qualifying exigencies. This leave renews every 12 months, as long as the employee continues to meet the eligibility requirements explained above.
Employees who need military caregiver leave may take up to 26 weeks of leave in a single 12-month period. However, this leave is a per-injury, per-service member entitlement. Unless the same family member is injured again, or another family member suffers an injury while on active duty, an employee may not take an additional leave for this purpose.
Employees are entitled to continue their health insurance while on leave, at the same cost they must pay while working. Although FMLA leave is unpaid, employees may be allowed (or required) to use their accrued paid leave during FMLA leave.
When an employee’s FMLA leave ends, the employee is entitled to be reinstated to the same or an equivalent position, with a few exceptions.
If employees qualify for leave under both the CFRA and FMLA, they ordinarily cannot stack the leave together to receive more than 12 weeks. However, if the worker qualifies only for CFRA leave and not FMLA leave (for example, to care for a grandparent, which is not covered by the FMLA), the worker could theoretically take up to 24 weeks or leave per 12-month stretch.
California's paid family leave (PFL) program provides benefits to workers who need to take time off for any of the CFRA-qualifying reasons listed above.
PFL is administered by the State Disability Insurance (SDI) program. To be eligible for paid family leave, you need only have earned $300 from which SDI deductions were withheld during the past 12 months.
Eligible California workers are entitled to receive about 60-70% of their wages for up to eight weeks, with a maximum weekly benefit in 2021 of $1,357. Benefits are approximately 60% of an employee’s salary for higher income earners and 70% for lower income earners.
You can calculate your paid family leave benefit amounts by going to California’s Employment Development Department website, where you will also find a step-by-step guide for how to file a claim.
A properly completed claim typically takes about two weeks to be processed. (Note that you have 41 days after beginning leave to submit your claim, but you can’t submit it before the first day of leave.)
Benefits can be taken all at once or split over a 12-month period. Employers may also allow you to use vacation time, sick leave, paid time off, or other leave to supplement your family leave benefits and receive up to 100% pay.
For more details about paid leave in California, consult these FAQs compiled by the Department of Industrial Relations.
To learn more, see our California Paid Family Leave FAQ.
Employers with at least 25 employees must allow eligible employees to take up to ten days of unpaid leave while a spouse is on leave from deployment during a period of military conflict.
Employers with at least five employees must give employees a reasonable period of leave for disability relating to pregnancy, childbirth, or related conditions. This period is not to exceed four months. Pregnancy disability leave doesn't count against an employee's leave entitlement under the California Family Rights Act.
Employers with at least 25 employees must give employees up to 40 hours of unpaid leave in any 12-month period, not to exceed eight hours in a single month, to participate in activities at a child's school or daycare.
All employers must allow employees to take unpaid leave to obtain a restraining order or seek other judicial relief from domestic violence for the employee or the employee's child. In addition, employers with at least 25 employees must allow employees who are victims of domestic violence, sexual assault, or stalking to take time off to:
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 from to 60% or 70% of their usual pay, depending on the employee’s wages.
If you need to know more about California's leave laws, you can contact the state Department of Fair Housing and Employment.
Updated February 11, 2021
]]>If you’ve been misclassified, you’re probably missing out on several rights and benefits that you’re entitled to as an employee. In fact, you may have a potentially large wage claim if you regularly work more than eight hours in a day or 40 hours in a week, but you aren’t paid at the proper overtime rate because your employer has labeled you as an independent contractor.
Employees are entitled to a wide variety of protections under federal and state law. Among other things, the following rules apply to employees, but not to independent contractors:
In general, an independent contractor is someone who is in business for himself or herself. Independent contractors usually perform work that requires a specialized skill or trade that is not part of a company’s regular business. They also typically perform work for multiple customers or clients, set their own fees, work from home or their own place of business, provide their own tools and equipment, and determine how and when the work is to be done.
A customer or client may provide specifications or deadlines for the work, but the independent contractor decides how much time to spend and how best to do the job. For example, a web designer who works from home, performs services for multiple clients, sets his or her own hours, and gets paid on a project basis would probably be classified as an independent contractor.
An employee, on the other hand, is someone whom a company has much more control over. An employee typically performs work that is a regular part of a company’s business. Employees also usually have regularly scheduled hours, work at the employer’s place of business, receive training and direction from the company, receive an hourly wage or salary, and are subject to discipline by the company.
The company has control over how the employee performs the work, often providing training, guidelines, or other supervision over the work product. For example, a marketing assistant who works from 9:00 p.m. to 5:00 p.m. during the week, at the company’s offices, receives $15 per hour, and has a supervisor who reviews his or her work, would probably be classified as an employee.
Under Assembly Bill 5 (AB 5), effective January 1, 2020, the strict "ABC test" must be used to determine if a worker is an employee or IC for most California employment law purposes, including wage and hour laws, unemployment benefits, and workers' compensation coverage.
Under the ABC test, a worker is an IC only if he or she meets all of the following:
Notably, the ABC test is not used to classify certain gig workers due to the passage of Prop 22 (discussed above). AB 5 also contains a multitude of exceptions, including for physicians, lawyers, accountants, insurance brokers, and many others.
For more information on AB 5, check out these FAQs issued by the California Labor & Workforce Development Agency.
If you believe you have been improperly classified as an independent contractor, you may have a wage and hour claim against your employer. For example, if you work more than eight hours in a day or 40 hours in a week, you may be owed unpaid overtime and penalties for missed meal periods and rest breaks. For more information on how to pursue a wage and hour claim, see our article, What is My Wage or Overtime Claim Worth in California?
]]>In California, employers with five or more employees are required to provide pregnancy disability leave under the state’s Pregnancy Disability Leave Act (PDL). Pregnant employees may take up to four months of leave during any period of time during which they are unable to work due to pregnancy, childbirth, or a related medical condition. This time may be taken before or after the birth of the child and includes time off for severe morning sickness, medically necessary bed rest, childbirth, and recovery from childbirth and any pregnancy-related complications. It also includes routine prenatal or postnatal medical care.
The exact amount of time off allowed for pregnancy disability leave depends on each employee’s situation. For the typical pregnancy and childbirth without complications, employees are generally considered to be disabled for:
In total, most pregnant employees will get between 10 and 12 weeks off for pregnancy disability leave. However, employees who are unable to work longer than this due to a pregnancy-related condition can receive up to four months off.
Once the pregnancy disability leave is over, eligible employees can take an additional 12 weeks off to bond with the child. This is called “parental” or “bonding” leave. However, it is only available to employees who work for employers with at least 20 employees. (See our article on parental leave in California.)
If you’ve used up all of your entitled leave, but you are still unable to work due to a physical or mental condition, you might qualify for additional time off. California’s Fair Employment and Housing Act (FEHA) requires employers to provide reasonable accommodations to employees with disabilities. One form of reasonable accommodation might be more time off, if it will allow you to return to your job in the foreseeable future.
Employers are not required to provide paid pregnancy disability leave. However, an employee may use accrued paid leave during this time, such as vacation, sick leave, or paid time off (PTO). Employers can require pregnant employees to use accrued sick leave (but not accrued vacation or PTO) during their pregnancy leave.
Pregnant employees may, however, receive short-term disability benefits through the California State Disability Insurance program during their pregnancy disability leave. An employee may receive a little over half of her wages during her leave, subject to a maximum set by law each year. For more information, including the current maximum, see California Short-Term Disability Benefits. (Paid family leave benefits are available during bonding leave; see California Paid Family Leave FAQ.)
If you need time off for pregnancy disability leave, you may make a verbal or written request to your employer. Whenever possible, this request should be made at least 30 days before the leave is to begin. If you’re unable to provide 30 days’ notice because of an emergency or unexpected change in your condition, you must give notice as soon as it is practical.
If your employer requires a doctor’s certification for other types of disability leave, you may be required to provide a similar certification for your pregnancy disability leave. The doctor’s certification should be in writing and should include the following information:
In general, an employer must return a pregnant employee to the same position she held before taking leave for pregnancy disability. However, an employer may reinstate the returning employee to a comparable position (that is, one that is virtually identical) if the original position was eliminated for legitimate business reasons.
The only exceptions where an employer would not be required to reinstate the employee to a comparable position are where:
If your employer denies you pregnancy disability leave for which you are eligible, your employer may be discriminating against you. If you have questions about pregnancy discrimination, contact the California Department of Fair Employment and Housing. Its website also has answers to frequently asked questions about pregnancy leave rights and discrimination. If you believe your employer has discriminated against due to your pregnancy or need for leave, talk to a lawyer to find out how to assert your rights.
]]>You can file a claim if your employer has violated any federal or state law regarding your work hours or wages. Because California law is more generous to employees than federal law in most respects, most claims will be based on state law. This includes, among other things:
For more on each type of wage violation, see our article on common wage violations in California.
To file your claim, you must complete an Initial Report or Claim (DLSE Form 1) and file it with the Department of Labor Standards Enforcement (DLSE), a division of the California Department of Industrial Relations. The form asks you to provide information about you, your employer, your regular work schedule, and what wages or penalties you are claiming. (For line-by-line instructions on what information to provide, check out the DLSE’s Guide to Completing DLSE Form 1.)
Depending on what type of wages or penalties you are claiming, you may also need to fill out the following supplemental forms:
If you are claiming that your employer retaliated against you for seeking unpaid wages or for filing a wage claim, you must fill out DLSE Form RCI-1.
You must file these forms either by mail or in person at your local DLSE’s office; for contact information, select your city from the list at the DLSE Wage Claim Office Locator page.
While you don’t need to attach any documents to your claim, the DLSE asks for the following records to better evaluate how much you are owed:
The DLSE will also ask your employer for the above documents, so don’t worry if you don’t have anything to attach to your claim. If you have an employment contract, or other documents, showing your employer’s promise to pay you at a certain rate, you should attach that as well.
For most wage violations—including minimum wage, overtime, and meal and rest break violations—you must file your claim within three years of the violation. If your employer’s wage violations were ongoing, the DLSE will look back three years from the date you filed your claim.
If your wage claim is based on your employer’s oral promises to pay you more than minimum wage, you have only two years to file your claim. If your claim is based on a written contract with your employer, you have four years to file your claim.
In any event, it’s best to file your wage claim as soon as possible. That way, you’ll be more likely to have access to the documents and witnesses that can support your claim.
If your employer failed to pay you at least the minimum wage, you are entitled to the difference between that and what you were actually paid, for each hour that you worked. For example, the minimum wage for small employers increased from $11 to $12 on January 1, 2020. If your employer continued to pay you $11 an hour for any work you performed in 2020, you are entitled to an extra $1 for every hour worked. (For more information, see What’s Your Unpaid Wage Claim Worth in California?)
If your employer failed to pay you overtime, you can receive an extra 50% of your regular wages for each overtime hour worked. And, you are entitled to payment for any business expenses your employer failed to reimburse you for, any unauthorized deductions your employer made from your paycheck, and any tips or commissions that your employer withheld.
California law also allows employees to collect a variety of penalties from the employer for certain wage violations—including failure to provide meal and rest breaks, failure to provide proper paystubs, and failure to provide a final paycheck on time. To learn more, see our article about available penalties for wage claims in California.
]]>Parental leave, also called “bonding leave,” is the time off that parents take to bond with their new child. For women in California, maternity leave is a combination of parental leave and pregnancy disability leave (see below for an explanation). For men in California, paternity leave is the equivalent of parental leave.
The federal Family Medical Leave Act (FMLA), and the similar California Family Rights Act (CFRA), require employers with 50 or more employees to provide up to 12 weeks of unpaid leave to bond with a new child. The New Parents Leave Act (NPLA) provides for the same amount of leave for new parents who work for employers with 20 to 49 employees.
Family leave is available for other reasons as well, including to care for an ill family member. To learn more, see our article on Family and Medical Leave in California.
To qualify for FMLA/CFRA leave, an employee must:
The eligibility requirements are the same under the NPLA, except the last one requires the employee to work at a location where the employer has 20 or more employees in a 75-mile radius.
Eligible employees may take 12 weeks of parental leave within the first year of a child’s arrival by birth, adoption, or foster placement. New mothers and fathers are entitled to the same amount of parental leave. In fact, it would be illegal gender discrimination for an employer to provide different amounts of bonding leave to employees based on sex.
However, because female employees are the only ones who can become pregnant and give birth, they can receive additional time off for pregnancy disability. This is time off due to the physical or mental effects caused by pregnancy or childbirth. In California, pregnant employees are typically entitled to an additional ten to 12 weeks off for pregnancy disability. See our article on California pregnancy disability leave to learn more.
Employers are not required to provide paid parental leave under federal or California law. (San Francisco employers of a certain size are required to provide paid leave under a city ordinance though.) You can request, or your employer can require, that your accrued paid vacation, sick leave, or PTO be paid out during your leave. Your employer must continue your group health coverage during your leave.
California is one of a handful of states with a paid family leave program. New parents can receive partial wages from the state while taking time off to bond with a child. The state pays 60 percent of most employees' wages–up to a maximum set by state law ($1,300 in 2020)—for six weeks. Low-income earners who make one-third of the state average wage receive 70% of their wages. (For more information, including eligibility requirements, see our article on California paid family leave.)
Even if you aren’t legally entitled to time off—because you work for an employer with fewer than 20 employees for example—you can still receive paid family leave benefits. You just won’t be entitled to job-protected leave.
At the end of your leave, your employer must reinstate you to the same job or a comparable one. A comparable job is one that is the same or similar in terms of pay, duties, and location. For example, if you’re a cashier at a grocery store, your boss can’t make you work as a bagger at a location 50 miles away.
Under the FMLA/CFRA, employers can require employees to give at least 30 days’ notice when the need for leave is foreseeable, which includes an expected birth, adoption, or foster placement. If the leave for need is not foreseeable, the employee must give as much notice as practicable. For example, if you’re brought in for an emergency C-section weeks before your due date, you should give notice as soon as you get the chance.
]]>But what if there’s no job to return to? Can your California employer fire you while you’re out on workers’ comp leave? Or refuse to take you back once you’ve recovered? Must it offer you an alternative job that fits your qualifications?
These questions are answered below.
Unlike some other states, California doesn’t have a law specifically requiring employers to reinstate injured employees when they are ready to work or find them new jobs if they are unable to perform their old jobs. However, California does have a strong anti-discrimination provision. Under Section 132a of the California Workers’ Compensation Code, it is illegal for an employer to fire an employee because of a work injury.
In other words, while an employer is not required to rehire an injured worker, not being able to provide a legitimate business reason for doing so could lead to a discrimination claim. For example, suppose an employee is cleared to return to work and his or her position is still available. The employer refuses to rehire the employee without explanation, advertises for the job for months, and eventually hires an employee with less experience. This might look like evidence of discrimination.
An employer will be able to show business necessity if reasonably believes that the employee is permanently unable to perform the job or that the disability will last so long that it needs to replace the employee.
In some cases, an employee will also need to show that he or she was singled out for less favorable treatment due to the work injury. A neutral policy that is evenly applied among employees will generally not be evidence of discrimination. For example, if your employer has a general rule that all employees on leave of absence must communicate with their supervisor on a regular basis and you’re fired after failing to do so, that will likely not violate the law.
On the other hand, if your employer has generous leaves of absence policies for workers who need time off for personal reasons or non-industrial injuries—but fires you only a couple of weeks after your work injury—that might be evidence of discrimination.
If an employee’s work injury or illness is serious enough, it might qualify as a disability under the Americans with Disabilities Act (ADA). The ADA is federal law that requires employers with 15 or more employees to provide reasonable accommodations to workers with disabilities in order to help them perform the job, unless it would cause an undue hardship. The California Fair Employment and Housing Act (FEHA) is a similar state law that applies to employers with five or more employees. (To learn more, see our overview article on the ADA.)
A disability is a physical or mental impairment that substantially limits a major life activity (such as breathing, walking, grooming) or major bodily function (such as the proper functioning of the immune or respiratory system). If your work injury qualifies as a disability, your employer will need to work with you to try to keep you employed. This might include giving you additional time off, changing your work duties, or providing necessary equipment, for example.
The federal Family and Medical Leave Act (FMLA), and the California Family Rights Act (CFRA), require employers with 50 or more employees to provide up to 12 weeks of job-protected leave for a serious health condition. If you have a relatively serious work injury, and it only keeps you out for 12 weeks or less, you might be entitled to return to your normal job. (To learn more, see our article on family and medical leave in California.)
Workers who can’t return to their normal occupations due to a permanent partial disability can receive a supplement job displacement voucher in the amount of $6,000. The voucher can be used to pay for education, training, licensing or certification fees, computer equipment, and vocational counseling.
You will receive this voucher only if your employer doesn’t return you to your old job or offer you a suitable alternative job. In this sense, employers have a financial incentive to return you to work.
You might also qualify for California unemployment benefits, if you’re able to work in some capacity but can’t return to work with your former employer. However, applying for these benefits might impact your workers’ comp benefits and vice versa, so consult with a workers’ comp lawyer first.
]]>If you have a contract that promises you continued employment for a certain length of time, or that limits your employer's ability to fire you (for example, only for "good cause" or other specific reasons), your employer must hold up its end of the deal. If your employer fires you in violation of the terms of the contract, you may have a strong claim against your employer.
An employment contract may be formed by a written or oral agreement. An employment contract may also be implied by certain actions or statements by your employer -- for example, a statement in an employee handbook that says employees will be fired only for cause. (To learn more about how these contracts are formed and what they require, see Types of Employment Contracts.) If your employer breached a contract of any type, you can sue for wages, benefits, and anything else you should have received. You can also use the contract as a bargaining chip to negotiate a severance package with your employer.
Employers may not make job decisions, including whether to fire an employee, based on certain protected characteristics. In California, these characteristics include race, color, national origin, religion, sex (including pregnancy), age, disability, genetic information, sexual orientation, gender identity, citizenship status, marital status, AIDS/HIV status, medical condition, political beliefs or activities, military or veteran status, or status as a victim of domestic violence, stalking, or assault. (See Employment Discrimination in California to learn more.)
If you were fired because of your membership in a protected class, you may have a strong wrongful termination case. If you win a discrimination lawsuit, your employer can be forced to pay not only your lost wages and benefits, but also your attorneys' fees and court costs, damages for your emotional distress, and possibly punitive damages.
An employer may not fire an employee for exercising, or trying to enforce, their employment rights. For example, you may not be fired for filing a complaint of discrimination or harassment, requesting or taking family and medical leave, taking time off to serve on a jury, filing a workers' compensation claim, or complaining about illegal wage and hour practices (such as unpaid overtime or illegal tip sharing arrangements). California is perhaps the state that offers the most protections for employees, which means there are many potential bases for retaliation claims. If you were fired for making a complaint or exercising a right granted by law, you may have a claim against your employer.
The damages available for retaliation claims depend on which law you were exercising your right under. Typically, though, a successful employee can collect not only lost wages and benefits, but also attorneys' fees, damages for emotional distress, and sometimes punitive damages.
Employees may not be fired for exercising a legal right, refusing to commit an illegal act, or complaining about workplace illegality. Public policy claims are similar to, but slightly different from retaliation claims. A retaliation claim is based on a specific legal provision in an employment law that prohibits employers from firing employees for exercising that right or filing a complaint about being denied that right.
A public policy claim, on the other hand, need not be based on an employment law or even a specific statute. Here are some examples:
In each of these examples, the employee would have a wrongful termination claim, even though no law expressly states that an employer may not fire an employee for taking this particular action. The larger principle is that no one should be fired for exercising a legal right or protesting or refusing to participate in illegal or unethical behavior.
Wrongful termination in violation of public policy is a type of personal injury (tort) claim, which means a successful employee can collect not only lost wages and benefits, but also damages for emotional distress, and punitive damages (where an employer's actions are particularly bad).
An employee may have other personal injury claims arising from the employment relationship. For example, an employee who was fired after being sexually harassed by a manager might have a claim for assault or battery (in addition to a harassment and retaliation claim). Or, an employee who is falsely accused of theft might have a claim for defamation, if the employer spreads that false information maliciously, in a way that harms the employee’s chances at getting another job. And, if your employer made big promises to get you to take the job, without intending to fulfill those promises, you might have a fraud claim. For any of these personal injury claims, you can ask the court to award lost wages and benefits, emotional distress damages, and punitive damages.
If you believe you were wrongfully terminated, you should talk to an experienced employment lawyer right away. As you can see, there are many potential legal theories on which you might have a lawsuit. A lawyer can help you sift through the facts, determine your strongest claims, and take steps to assert your rights. In some cases, you might need to take action relatively quickly to protect your right to sue. A lawyer can file a lawsuit, help you negotiate a generous severance package, or advise you on other ways to resolve your claim.
]]>I work in California, and I'm pregnant. The HR department just gave me a bunch of forms and information about my upcoming maternity leave, including a pamphlet about benefits I can receive from the state during my time off. Do I get more time off or more benefits if I have a difficult pregnancy? My doctor thinks I'll need to have a Caesarian section, and I may be unable to work for a period of time before having the baby.
How much time you get off from work and how long you can collect benefits through the state are actually two separate questions. The answer to both depends on how long you are actually disabled by pregnancy and childbirth.
A variety of federal and California laws give employees the right to take time off work for pregnancy and parental leave. These include the federal Family and Medical Leave Act (FMLA), the California Family Rights Act (CFRA), and California's pregnancy disability leave law. These laws don't require your employer to pay you for this time off, however.
California's pregnancy disability law requires most employers (those with five or more employees) to give employees time off while they are temporarily disabled by pregnancy and childbirth. Under this law, you may take up to four months off, depending on how complicated your pregnancy and childbirth are (the exact length of time is typically determined by your doctor).
Under the FMLA and CFRA, employees who work for larger employers (those with 50 or more employees) may take up to 12 weeks off to bond with a new child. This leave is in addition to any time off taken under California's pregnancy disability leave law. In other words, women in California can take up to seven months of combined parental and pregnancy leave, depending on how disabling the pregnancy was. (The FMLA and CFRA also imposes some eligibility requirements for employees; see Family and Medical Leave in California for more information.)
California also has two insurance programs that may provide you with some benefits during this time off. The state disability insurance (SDI) program provides benefits while a woman is disabled by pregnancy, and the paid family leave (PFL) program provides benefits during parental bonding leave. (These programs deal only with benefits; they don't give the right to take time off work or to be reinstated after the leave is over.)
According to California's Employment Development Department (EDD), the agency that enforces these programs, SDI benefits typically continue for about ten weeks in the case of a normal pregnancy: four weeks before birth and six weeks after. For a Caesarian section or other medical complications, your doctor may certify that you are unable to work for a longer period of time. PFL benefits are typically available for up to eight weeks. To learn more about the SDI and PFL programs, check out the State Disability Insurance Program page at the EDD's website.
]]>For information about your other rights, including the right to be free from discrimination, see Pregnancy Discrimination: When You Should Talk to a Lawyer.
Under federal law, employers must provide lactation breaks for new mothers. Employers that are subject to the Fair Labor Standards Act (as most employers are) must provide nursing employees with “reasonable” unpaid breaks to express breast milk, for up to one year after the birth of a child. These employers must provide nursing employees with a private place, other than a bathroom, that is protected from view or intrusion by coworkers or the public. Employers with fewer than 50 employees are not required to provide breaks if it would cause undue hardship, meaning that it would be too difficult or costly given the employer’s size, resources, and structure.
The FLSA provides break time only to hourly, nonexempt employees. Although exempt employees are not covered under the federal law, they are covered under California’s lactation accommodation law. California law is broader in its protections for nursing mothers in other ways as well, as described below.
In 1998, the California legislature passed a resolution encouraging all California employers to accommodate the needs of breastfeeding employees by ensuring that employees would have adequate facilities for breastfeeding or expressing milk for their children. In 2002, the legislature enacted labor code laws to accomplish this goal, making it mandatory for all employers to provide breaks and other accommodations to nursing employees. (Cal. Labor Code § § 1030-1033.)
Unlike several other California workplace laws requiring accommodation (for example, accommodation for employees with disabilities), which cover only employers with a certain minimum number of employees, the lactation accommodation law applies to all employers in the state regardless of size.
California law requires all employers to provide all nursing employees with breaks throughout the day to express breast milk. In general, the law does not provide working mothers with the right to breastfeed their infants at work. However, when an employer provides on-site childcare facilities, a working mother may be able to breastfeed her child during her breaks.
Employers must give nursing employees a reasonable amount of time to express breast milk during the workday. These breaks should be taken during the employee’s usual rest and meal breaks, if possible. However, employers must provide additional unpaid break time if necessary. Unlike federal law and the laws of some states, California has no upper limit on how long after a child’s birth the mother may continue to take lactation breaks. As long as the employee is nursing, she may take breaks to express breast milk.
California employers must make reasonable efforts to provide nursing employees with a private room or space, other than a toilet stall, in which to express breast milk. This space must be close to the employee’s work area. If the nursing employee’s work space meets these requirements (such as a private office), this requirement is satisfied.
If providing lactation breaks or a private space to express breast milk would “seriously disrupt” the operations of the employer, the employer does not have to comply with the law. For this exception to apply, there must be a significant burden on the employer; minor inconvenience will not qualify.
An employer who violates the California lactation accommodation law may be penalized $100 per violation by the state labor commissioner.
]]>Workplace smoking laws apply to virtually all places of employment in California. The exceptions include:
Even owner-operated businesses with no employees must comply with California's workplace smoking laws. That is also true where the only workers are volunteers or independent contractors.
An employer may not knowingly or intentionally permit smoking in any enclosed workplace. That includes covered parking lots, lobbies, lounges, waiting areas, elevators, stairwells, and restrooms that are a structural part of the building.
Employers must also take reasonable steps to prevent nonemployees from smoking.
Yes, California's ban on workplace smoking also includes vaping and marijuana.
In California, smoking areas must be in a non-work area that is not enclosed. Employers may not offer "break rooms" for smokers.
Most California employers are required to post "No Smoking" signage at each workplace entrance.
In the few California workplaces where smoking is allowed (see the exceptions above), employers must post a sign stating that "smoking is only allowed in designated areas."
An employer may not discharge or discriminate against an employee for engaging in lawful activity during nonwork hours away from the employer's premises.
If you want to go right to the source and look up California law on workplace smoking laws -- or if you're writing a letter to your employer or employee and want to cite the applicable law -- the relevant statute(s) can be found at Cal. Lab. Code Section 6404.5.
]]>Unfortunately, employees don’t have a legal entitlement to keep their jobs, nor to be hired into other positions with the company or be considered for rehire. Employers are not prohibited from letting go of workers when financial times get tough.
However, employees do have the right to a certain amount of notice before a plant closing or large-scale layoff. If the employer fails to give proper notice, employees are entitled to damages.
The federal Worker Adjustment and Retraining Notification (WARN) Act gives employees these rights. Almost half of the states have similar laws, and California is one of them.
Although it doesn’t go as far as a few states, which require employers to pay a small severance or continue health benefits following a layoff, California law does expand the employers and employees who are entitled to advance notice of a layoff.
This article provides information on the rights of California employees under the federal WARN Act and California’s “mini-WARN” law.
See the articles at our Losing or Leaving Your Job page for information on your other rights when you are laid off, including when you should receive your final paycheck, how to continue your health benefits, and more.
WARN and California’s mini-WARN require certain larger employers to give advance notice of mass layoffs or plant closings that will result in a certain number or percentage of employees losing their jobs.
Under federal law, employers are covered only if they have at least 100 full-time employees or at least 100 employees who work a combined 4,000 hours or more per week. (Full-time employees are defined as those who work at least 20 hours a week and have been employed for at least six of the 12 months ending on the date when notice must be given under WARN.)
Under California law, employers are covered if they own an industrial or commercial facility that employs at least 75 employees.
Not every layoff or plant closing is covered by federal or state law.
WARN applies only to plant closings and mass layoffs.
WARN also applies to plant closings or mass layoffs that occur in stages over 90 days. This rule is intended to prevent employers from getting around WARN’s notice requirements by conducting a series of smaller layoffs over time.
California’s mini-WARN applies to the following situations:
If a layoff or plant closing is covered by WARN or by California’s mini-WARN, employees who will lose their jobs are entitled to notice 60 days in advance. (Employees who are union members need not receive individual notice; instead, the employer must notify their bargaining reps, who are expected to pass the information along to the affected employees.)
The notice required is the same under federal and California law. It must provide specified information about the planned layoffs, including whether they are expected to be temporary or permanent, the expected date when the layoffs will begin and when the employee will receive a termination letter, and whether the employee will have bumping rights.
In some situations, an employer either does not have to give notice at all or can give less than 60 days’ notice.
Neither WARN nor California’s mini-WARN apply to temporary or seasonal employees or to temporary projects that are completed, as long as the employees knew when hired that the jobs were for a limited time.
Under California law, an employer doesn’t have to give notice if the job losses were due to a physical calamity or an act of war. An employer also doesn’t have to give notice under state law if the employer was actively seeking capital that would have avoided or postponed any job losses at the time when notice should have been given. This exception applies only to plant closings and relocations.
Under federal law, WARN doesn’t apply to a plant closing or mass layoff resulting from a union strike or an employee lockout.
The exceptions noted above are the only ones recognized under California’s mini-WARN law. Under the federal WARN Act, employers may comply with WARN by giving as much notice as they can (even if they give less than 60 days’ notice) in a few situations.
If an employer relies on one of these exceptions, it must give as much notice as possible and must state (as part of the written notice requirement) why it couldn’t give the full 60 days that would otherwise be required.
An employer who violates either the federal or state WARN law may be ordered to pay all affected workers for all pay and benefits they lost for the period of the WARN violation, up to the full 60 days WARN requires.
This amount is reduced by any wages earned or severance payments the employer made voluntarily during that time. For example, if an employer should have given 60 days’ notice, but gave notice only 40 days in advance of a layoff, employees would be entitled to 20 days of pay and benefits, unless the employer paid them severance covering that extra time.
In addition, California employers can be liable for a penalty of up to $500 per day for each day they're in violation of the WARN Act.
Employers may also be ordered to pay the attorney fees and court costs of affected workers who sue and win. Employers who don’t give proper notice to the state may also have to pay fines, but this money goes to the state, not to employees.
If you believe your WARN rights have been violated, you should consult with an experienced California employment lawyer. WARN includes the right to attorney fees if you win, so it provides an incentive for lawyers to take strong cases. However, the damages available to any one employee are relatively low.
Therefore, a lawyer may advise either trying to negotiate a settlement or going forward on behalf of all affected employees, as part of a class action lawsuit.
]]>California is one of the few states with a state Constitution that includes a right to privacy. That right extends not only to government employees, but to employees in private industry as well.
California courts have held that this right is implicated by drug testing, but that doesn’t always mean drug testing is illegal. Testing is judged on a case-by-case basis, balancing the employer’s reasons for testing against the intrusion on the employee or applicant.
California court cases have found that employers may require employees to pass a drug test as a condition of employment. As long as an employer tests all applicants for particular job positions and doesn’t single out certain applicants based on protected characteristics (such as race or disability), courts have upheld this type of testing.
California has a “compassionate use” law, which allows residents to use marijuana for medical purposes. State law requires users to get a doctor’s written authorization to use marijuana.
A patient who has a valid prescription may not be prosecuted under state law for crimes relating to the use, possession, or cultivation of a certain amount of marijuana. However, California’s Supreme Court has held that an employer may refuse to hire an applicant who tests positive for marijuana, even if the drug is legally prescribed for a disability.
When determining whether a drug test was legal, California courts balance the employer’s reason for testing against the employee’s legitimate expectation of privacy. California has recognized that employees start with a stronger claim here: Employees already have a job (and a work history the employer can use to evaluate their performance), which gives them more of a stake in the process and may give the employer less of a need to test.
An employer that has a reasonable suspicion that an employee is using drugs may be on safe legal ground in testing, provided that the suspicion is based on objective facts. Random testing is more controversial, although courts have upheld random testing for very safety-sensitive positions.
California statutes don’t set up specific drug testing procedures and protocols. Because of the balancing test courts apply to drug tests, however, employers are more likely to prevail if they take steps to diminish employees’ privacy expectations (for example, by adopting a written policy explaining when drug testing will be required).
In addition to violating an employee’s or applicant’s constitutional right to privacy, drug testing may give rise to other legal problems. Here are some examples:
If you've experienced adverse consequences at work due to a failed drug test, it might be worth contacting an employment law attorney to discuss your legal options. If the test was performed illegally, you might be entitled to job reinstatement or money damages.
Search our Lawyer Directory to find an employment law attorney near you.
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