Working Conditions

Rest Periods

Federal law does not require rest periods for employees. The IWC orders, however, require employers to authorize and permit all employees to take rest periods, which must be counted as hours worked. To the extent it is practical to do so, rest periods must be in the middle of each work period. The amount of rest-period time is based on total hours worked daily, with a break of at least 10 minutes for each four hours worked (or major fraction of four hours). Exception: A rest period need not be authorized for an employee whose total daily work time is less than 3½ hours.

An employer must automatically pay an employee a penalty of an extra hour of wages, at the employee's regular rate of pay, for each workday that a rest period is not provided to the employee. This penalty is not due an employee who chooses on his own not to take an authorized rest period.

Meal Periods

Federal law does not require meal periods for employees. The IWC orders, however, do require them. Under IWC orders other than Order No. 14 (Agricultural Occupations), an employer may not employ a person for a work period of more than five hours without providing a meal period of at least 30 minutes. However, where a work period of not more than six hours will complete the day's work, the employer and employee may agree to waive the meal period.

Those orders further provide that an employee who works more than 10 hours in a day must be provided a second meal period of at least 30 minutes. Exception: If the total hours worked is no more than 12 hours, the employer and employee may agree to waive the second meal period, but only if they did not waive the first meal period.

In contrast, IWC Order No. 14 requires employers to authorize and permit all persons employed in an agricultural occupation, after a work period of not more than five hours, to take a meal period of not less than 30 minutes, except that when a work period of not more than six hours will complete the day's work, the meal period may be waived by mutual consent of employer and employee

Every employer must keep accurate time records showing when each employee begins and ends each work period. Meal periods, split-shift intervals and total daily hours worked must also be recorded. Meal periods during which operations cease and authorized rest periods need not be recorded.

A meal period is not counted as time worked as long as employees are relieved of all duty and may leave the employer's premises during it. Otherwise, it is an on-duty meal period and counted as time worked. Further, an on-duty meal period is permitted only where both (1) the nature of the work prevents an employee from being relieved of all duty and (2) the employer and employee have agreed in writing to an on-the-job paid meal period.

An employer must automatically pay an employee a penalty of an extra hour of wages, at the employee's regular rate of pay, for each workday that a meal period is not provided to the employee.

Rest-Period and Meal-Period Chart: Below is a chart that gives the appropriate number of rest and meal periods for the number of hours worked in a workday.

Footnotes -

¹ Net hours worked excluding unpaid periods such as meal periods.

² Meal period may be waived by mutual consent of employer and employee if a work period of not more than six hours will complete the day's work. A meal period must be provided for each work period of not more than five hours.

Day's of Rest

California Labor Code section 551 provides: "Every person employed in any occupation of labor is entitled to one day's rest therefrom in seven." Further, section 552 provides: "No employer of labor shall cause his employees to work more than six days in seven.

Section 554, however, limits the applicability of sections 551 and 552. First, it states that those sections do not apply "to any cases of emergency nor to work performed in the protection of life or property from loss or destruction. . . ." Second, and very importantly for agricultural employers, it states that those sections do not apply to any person employed in an agricultural occupation as defined in IWC Order No. 14. Third, it allows for an accumulation of days of rest when the nature of the employment reasonably requires that an employee work seven or more consecutive days, if in each calendar month the employee receives days of rest equivalent to one day's rest in seven. Fourth, it authorizes the Labor Commissioner, "when in his or her judgment hardship will result, [to] exempt any employer or employees from the provisions of Sections 551 and 552."

Moreover, section 556 provides: "Sections 551 and 552 shall not apply to any employer or employee when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof."

Lactation Accommodation

Every employer in California must provide a reasonable amount of break time to accommodate an employee wishing to express breast milk for her infant child. Further, every employer must make reasonable efforts to provide such an employee with the use of a room or other location, other than a toilet stall, near the employee's work area where she can express milk in private.

The statute does not define what constitutes "reasonable efforts." The room or other location may include the place where the employee normally works if it is a private area. Neither does the statute define what constitutes a "reasonable amount" of break time. California's Industrial Welfare Commission (IWC) orders require employers to provide employees with a 10-minute rest period for every four hours worked, or major fraction thereof, based on the total numbers of hours worked in a workday. The lactation break is, if possible, to run concurrently with that rest period, which must be counted as paid time worked.

Lactation time that does not run concurrently with a rest period mandated by the applicable IWC order may be unpaid. (Of course, employers should not deduct lactation time from exempt employees' salaries because doing so would likely defeat the salary requirement of the overtime exemption.)

Lactation break time need not be provided if to do so would seriously disrupt the employer's operations. "Seriously disrupt" is not defined.

Whether an agricultural employer with a field employee who wishes to express milk would be required to provide her with a private place (that is not a toilet stall) in the field is an open question. Even if not, however, such an employer should consider offering such an employee with transport to suitable private place. Until the issue is considered in a reported judicial opinion or at least until the Labor Commissioner has issued an advice letter on it, it may be wise to accommodate such an employee in this way. Doing so may help reduce one's exposure to liability (and the legal expense associated with it) for violating the law, which imposes a civil penalty of $100 per violation.

Reporting-to-Work Pay

Sometimes when an employee reports to work at his or her regularly scheduled time, the employer finds it necessary to send the employee home because there is no work. In this case, the employee generally must be paid for at least half of the scheduled or usual work hours, but in no case for less than two or for more than four hours. If the employee reports a second time during the same day, he or she must receive at least two hours' additional work or pay for the second appearance.

These provisions do not apply when: (1) the work is interrupted by an act of God or other cause not within the employer's control; (2) operations cannot begin due to threats to the employee or property or when recommended by civil authority; (3) public utilities fail to supply water, gas, electricity or sewer; or (4) the employee is on paid standby status and is called to work at times other than his or her usual shift.

Section 45.1.5 of the Enforcement Policies and Interpretations Manual of the Division of Labor Standards Enforcement (DLSE) interprets the term "Interruption Of Work." Section 45.1.5 states:

[R]eporting time pay is not required when "the interruption of work [requiring the second reporting time] is caused by an Act of God or other cause not within the employer's control." In 2002, DLSE concluded that rain or other inclement weather that makes it impossible or unsafe to work falls into the category of "an Act of God or other cause not with in the employer's control." This means that if workers are sent home (either immediately upon reporting to work or during the workday) because of rain or other inclement weather, there is no obligation to pay reporting time pay.

Uniforms and Tools

Some employers require employees to wear a uniform as a condition of employment. In this case, the employer generally must provide and maintain the uniforms at its expense. Uniform includes wearing apparel and accessories of distinctive design or color. Ordinary work clothes are not considered uniforms as long as the employees have free choice of what to wear. Apparel for which the employer specifies the design or color or to which the employer requires an insignia be affixed is considered a uniform.

The employer need not supply to employees uniforms that are standard in their industries, such as white nurses' uniforms or black-and-white uniforms for wait persons, as these can be used from one job to the next.

Employees may be asked to maintain employer-furnished uniforms, when the uniforms require minimal time for care, e.g., uniforms made of a material requiring only washing and tumble or drip drying. Employers must maintain or provide a maintenance allowance for uniforms requiring ironing, dry cleaning, special laundering for heavy soil, or patching and repairs due to the nature of the work. Also, an employer must pay for any personal protective clothing or equipment that the employer is required by law to furnish to employees.

If an employer requires an employee to have certain tools or equipment, or if such tools are required to perform the job, the employer must provide and maintain them for any employee who is paid less than twice the minimum wage. An employee who is paid at least twice the minimum wage may be required to provide and maintain hand tools and equipment customarily required by his or her trade.

Personal Protective Equipment - Indemnification

Several Cal/OSH standards in California Code of Regulations, title 8, require PPE. When PPE is required, an employer must provide the required PPE to employees. One remedy available to an employee where an employer did not provide a required item, such as goggles or rubber boots, lies under Labor Code section 2802, subdivision (a). It provides: "An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful."

Vacations

Paid vacations are not required by law. However, paid vacation benefits offered by an employer are considered the same as wages. Therefore, once they have been earned, they may not be forfeited. An employee offered vacation benefits earns and vests in them daily.

The employer's policy, however, may set the amount of vacation earned and when the vacation time may be taken. For example, an employer's policy may provide that employees earn one week of vacation the first year of employment, but that vacation time cannot be taken until after the employee has completed one year of service.

Nevertheless, an employee covered by such a policy who ends employment before completing one year of service must be paid the accrued pro rata vacation earned up to the termination date. The employer may not require that earned vacation pay be forfeited upon termination of employment.

Further, an employer may cap vacation accruals by setting a limit on the amount of earned but unused vacation an employee may have at any one time. Such a provision states that employees earn no more vacation whenever their accrued vacation time hits a stated limit and will resume earning vacation benefits only after they have used some of their accrued time and are thus once again below the limit. In contrast, a so-called "use-it-or-lose-it" provision in a vacation policy is not legal, as it results in a forfeiture of earned vacation time.

Holidays

Employers in California are not legally required to provide employees with paid holidays or to pay overtime or premium pay for hours worked on a holiday. However, paid "personal" or "floating" holidays offered by an employer are treated like vacation benefits. Other paid holiday requirements are dependent on the employer's own policy.

Sick Pay

Most California employees participate in the State Disability Insurance(SDI) program, for which they pay through payroll deduction. Employers must give newly-hired employees a copy of the SDI brochure, as well as provide claim forms when an employee is eligible to apply for benefits. Brochures and claim forms can be obtained from the Employment Development Department (EDD). Employers in California are not legally required to provide sick-pay benefits in addition to mandated SDI benefits.

Sick-pay benefits offered an employee in addition to mandated SDI benefits are generally governed by the employer's own policy or the terms of a Health and Welfare Plan that provides them. An exception to this is when sick pay is added to vacation benefits to provide a combined benefit, such as a "time off" plan. In that situation, the combined benefit is treated like vacation pay. Also, employers who provide paid sick leave must allow an employee to use up to half of his or her annual accrued leave to care for a sick parent, child or spouse.

Severance Pay

Neither California nor federal law requires employers to provide severance pay for terminating employees. Employers who provide severance pay as part of an employee benefit plan, however, must comply with the reporting, disclosure, claims procedure, and fiduciary provisions of the federal Employee Retirement Income Security Act (ERISA).

For more information, contact the nearest office of the Employee Benefits Security Administration of the U.S. Department of Labor.

Pension Plans

Neither California nor federal law requires employers to provide pension benefits. Employers who do provide pension benefits, however, must comply with the provisions of the federal Employee Retirement Income Security Act (ERISA).

Medical Insurance and Life Insurance

Employers in California are not legally required to provide medical-insurance or life-insurance benefits. However, an employer offering medical benefits must give a 15-day notice if they will be discontinued. Also, federal and California laws require that employees and their dependents who are covered by a group health plan be offered continuation coverage upon certain events, such as termination of employment.

Disability Leaves of Absence

Disability leaves of absences are legally required in these situations:

1. Work-Related Injuries and Illnesses: Generally, an employee whose injury or illness is covered by workers' compensation must be provided a leave of absence for as long as is required to get the employee back to work. An employer may, however, terminate an employee on such a leave due to compelling business necessity or who has been incapacitated for such a long time that it appears unlikely the employee will ever be able to return to work. It is not clear, however, how much time must pass before an employer may safely discharge an injured employee in the latter case; at least a year must pass, but two years or more is safer.

The employee may also be terminated once the employee's condition has been declared permanent and stationary by the treating physician or agreed medical examiner (AME), with the physician or AME stating the employee cannot do one or more essential functions of the job, either with or without reasonable accommodation. Also, an employer need not reinstate an employee for whom work is no longer available.

In any event, an employer should consult competent legal counsel before discharging an employee (or any benefit of employee) on a workers' compensation leave. More information can be obtained by contacting your workers' compensation insurance carrier.

2. Pregnancy Disabilities: An employer regularly employing five or more employees must grant a leave of absence of up to four months to an employee who cannot work due to a pregnancy-related disability. If more than four months of leave is provided for other non-work-incurred medical disabilities, the length of the pregnancy-disability leave must be at least that allowed for them.

A pregnancy-disability leave of absence is required only when an employee is disabled due to a pregnancy-related condition. Leaves of absence for the birth or adoption of a child are available to eligible employees of employers covered by the California Family Rights Act. A pregnancy-disability leave does not have to be compensated unless other non-work-incurred medical-disability leaves of absence are compensated. While on pregnancy-disability leave, an employee may use her earned but unused vacation and/or sick-pay benefits, but she cannot be forced to use them.

An employee returning from a pregnancy-disability leave of absence within the allowed time generally must be returned to the same position she had before her leave began. Otherwise, she must be offered a comparable position.

More information can be obtained by writing the Department of Fair Employment and Housing, 2014 T Street, Suite 210, Sacramento, CA 95814. Ask for a "Pregnancy Discrimination Fact Sheet."

Personal Leaves of Absence

Both the federal and state governments have enacted family-leave laws. They differ in scope and application. Employers must comply with the law that requires the more-generous benefit. Here is a summary of the two laws:

California: Under the California Family Rights Act, employers with 50 or more employees in the State of California must provide unpaid time off to employees to care for a seriously ill parent, spouse or child. Eligible employees may take up to 12 weeks of family leave every 12 months. To be eligible for this leave, an employee must have been employed for at least 12 months and have worked at least 1,250 hours in the 12-month period before taking the leave. An employee taking this leave generally must meet certain notice and certification requirements.

This leave does not have to be taken in consecutive days or weeks. An employer need not grant family leave to a parent to care for a child being cared for by the child's other parent.

Family-care leave for the birth of a child may be taken in addition to the pregnancy-disability leave. In other words, pregnancy-disability leave taken by an employee does not count against her state family-care-leave entitlement. After taking up to four months of pregnancy-disability leave, an employee may take up to 12 weeks of family-care leave.

Federal: Under the Family and Medical Leave Act, employers with 50 or more employees must provide up to 12 weeks of unpaid leave per year to eligible employees to use for: (1) care of a newborn or newly-adopted child, (2) care of a family member with a serious medical condition, or (3) their own illness. To be eligible for this leave, an employee must have been employed for at least 12 months and have worked at least 1,250 hours in the 12-month period before taking the leave. An employee taking this leave generally must meet certain notice and certification requirements.

Covered employers are required, with some exceptions, to restore eligible employees using family leave to the same or equivalent job upon their return and to continue to provide health insurance coverage under the same conditions it would have been provided had the employee worked during the leave.

Leaves of Absence

Court Duty: Every employer must provide a leave of absence to an employee who is required by law to serve on inquest or trial juries or to appear in court as a witness. The employee must give to the employer reasonable notice of the need for this leave. An employee taking court-duty leave need not be compensated for it.

Time Off for Crime Victims: Employers must let certain employees attend criminal court proceedings and let an employee who is a victim of a crime, and certain employees who are related to a crime victim (including domestic partners) or who sustained a pecuniary loss due to an injury or death to a crime victim, to be absent from work to attend judicial proceedings related to the crime. Employers with 25 or more employees must let employees who are victims of sexual assault or domestic violence to take time off for specified reasons.

An eligible employee may use vacation, personal, sick, or unpaid leave time for the absence. The employee must provide the employer written notification of each scheduled proceeding, unless advance notice is not feasible. If advance notice is not feasible, the employer may not take an adverse employment action against the employee, as long as the employee provides the employer with the required documentation.

Emergency Duty as a Volunteer Firefighter: All employers must provide leaves of absence for employees who must perform emergency duty as a volunteer firefighter. It is not a requirement that the employee be compensated during time off to perform emergency volunteer fire-fighting duties.

Time Off to Participate in a Child's Daycare-Facility or School Activities: Employers with 25 or more employees working at the same location must allow a parent, guardian or grandparent with custody of a child in a licensed daycare facility, kindergarten, or grade 1 to 12, to take up to 40 hours off per year (capped at eight hours per month) to participate in the child's daycare-facility or school activities. The employee must give to the employer reasonable notice of the planned absence. Employees must first use existing vacation, personal leave or compensatory time off for this purpose. The time off need not be compensated.

Time Off to Appear at School at School's Request: All employers must allow a pupil's parent or guardian to appear at the pupil's school when the school has given advance notice of a need for the parent or guardian's presence. The employee need not be compensated for the time off. The employee must give reasonable notice to the employer of need to take time off to appear at the school.

Time Off to Vote: If a voter does not have enough time to vote outside of working hours, he or she may take off time to vote at the start or end of a shift, whichever provides the most free time to vote. The employee may take off no more than two hours without loss of pay, as long as he or she has given at least two working days' notice that time off is desired.

Drug and/or Alcohol Rehabilitation: Employers with 25 or more employees must reasonably accommodate an employee's voluntary participation in an alcohol- and/or drug-rehabilitation program, as long as this reasonable accommodation does not impose an undue hardship on the employer. Reasonable accommodation means time off work, but such time does not require compensation. An employer must also make reasonable efforts to safeguard an employee's privacy as to his or her enrollment in a rehabilitation program. An employer may refuse to hire or may discharge an employee due to the employee's current use of alcohol and/or drugs, or because the employee cannot perform his or her duties, or cannot perform the duties in a manner that would not endanger his or her health and safety, or the health and safety of others.

Literacy Assistance: Employers with 25 or more employees must reasonably accommodate and help any employee who reveals a literacy problem and asks for employer help either in enrolling in a literacy assistance program or in arranging visits of an instructor to the job-site, as long as such accommodation does not pose an undue hardship on the employer. Reasonable accommodation means time off work, but such time does not require compensation. Further, the employer must make reasonable efforts to safeguard the employee's privacy as to a literacy problem. An employee who satisfactorily performs his or her duties may not be discharged for disclosing a literacy problem.

Temporary Military and/or Reserve Duty Leave: An employee who is a member of the Reserve Corps of the Armed Forces of the United States, the National Guard or the National Militia is entitled to a temporary leave while engaged in military duty ordered for purposes of military training, drills, encampment, naval cruises, special duty or like activity. Such temporary leave need not exceed 17 calendar days including travel time and need not be compensated.

Military-Spouse Leave: Employers with 25 or more employees must let a spouse of a military serviceperson take up to 10 days of unpaid leave when the serviceperson is on leave from deployment to a designated combat zone or deployment during a period of military conflict. To be eligible, the employee must be regularly scheduled to work at least 20 hours per week.

The employee must notify the employer that the employee wishes to take leave within two business days of receiving official notice that the employee's spouse will be on leave from deployment. The employee also must give the employer written documentation certifying the spouse will be on leave from deployment.