Vol. 34, No. 3, March 2005
In This Issue
Required Posters, Notices
and Disclosures - Amplification
Rule Banning Unnecessary Hand Weeding OK'd
Prop 64 Limits Unfair Competition Lawsuits
Megan's Law Web Site Poses Issues for
Employers
Law Protecting Employees in Military Amended
Employment Termination Checklist
Wages for Suspended vs. Discharged Employees
Safety Sheet: Harassment - The Legal Side
Harassment
- The Legal Side - Spanish
Required Posters, Notices and Disclosures - Amplification
The article Required Posters, Notices and Disclosures in last month's issue of FELS Newsletter included under the heading Pesticide Postings a summary of the requirements to retain a physician and post a notice about emergency medical care and to post warning signs around a field to be treated with a pesticide. FELS received a comment that those summaries omitted some important qualifiers affecting those requirements.
For the sake of thoroughness, here is a revision of those summaries that includes those qualifiers:
3. Emergency Medical Services: An employer with an employee who regularly handles pesticides containing organophosphates or carbamates must retain a physician to provide emergency medical services and post the notice described above. "Regularly handles pesticides" means handling them during any part of the day on more than six days in a 30-day qualifying period starting on the first day of handling.
4. Field Postings. A property operator must assure that signs are posted around a field to be treated with a pesticide where either (1) the product label requires posting, unless access to the field is controlled so that no employee (other than handlers applying the pesticide) will enter, work in, remain in, or walk within one-quarter mile of the field during the application and the restricted entry interval (REI) or (2) the application results in an REI of greater than seven days. Further, signs must be posted around a greenhouse in which a pesticide application will be made, unless access is controlled so no employee will enter, work in, or pass through the greenhouse during the application and the REI. Required signs must be posted before the pesticide is applied but no more than 24 hours before its application. The signs must remain posted and clearly legible throughout the application and the REI. They must be removed within three days after the REI ends and before any entry prohibited during the REI is made.
Rule Banning Unnecessary Hand Weeding OK'd
The California Occupational Safety and Health Standards Board approved at its March 17 meeting in San Diego a permanent regulation banning unnecessary hand weeding, hand thinning and hand hot-capping. A summary of the permanent regulation appears at the end of this article. While closely mirroring the emergency regulation approved by the board last year, the permanent regulation includes four clarifying modifications sought by California Farm Bureau Federation and other groups representing agricultural employers.
The first modification clarified that the ban applies only to the tasks when done in a stooped, kneeling or squatting position, just as does the longstanding prohibition against the use of short-handled hand tools. Accordingly, the tasks may be done by hand or with a short-handled hand tool in standing or sitting positions, for example.
The second clarified that the activities may be performed by hand where no reasonable alternative means suitable to the task is readily available.
The third specified that the exemption for organically grown commodities applies to "any agricultural or horticultural commodity grown in fields or greenhouses which have been registered with the County Agricultural Commissioner as organic."
The fourth specified that the exemption for horticultural commodities applies to those grown in tubs or planter containers with openings of up to 15 inches.
Here is a summary of the permanent regulation:
1. Employees may not weed, thin or hot-cap in a stooped, kneeling or squatting position using either:
a. Short-handled hand tools (i.e., ones with handles less than 48 inches long) or
b. Long-handled hand tools (i.e., ones with handles at least 48 inches long).
2. Employees may not hand weed, hand thin or hand hot-cap in a stooped, kneeling or squatting position unless at least one of the following applies:
a. The employer can show that doing the task by hand is necessary because there is no readily available reasonable alternative means (e.g., a long-handled tool) suitable and appropriate to the production of the commodity (i.e., presumably, so the task could be done while standing).
b. Hand weeding, hand thinning and hand hot-capping is only occasional or intermittent and incidental to a non-hand weeding operation; this includes both non-weeding operations (e.g., irrigating or harvesting) and weeding operations where employees are generally standing while using long-handled tools. To be "occasional or intermittent," the time devoted to doing the task by hand must be limited to 20% of an employee's weekly work time.
c. The commodity plants being weeded, thinned or hot-capped
i. were spaced less than 2 inches apart when planted;
ii. are growing in a field or greenhouse registered as organic with the county Agricultural Commissioner;
iii. are seedlings; or
iv. are horticultural plants growing in tubs or planter containers with openings of 15 inches or less.
3. Employees engaged in hand weeding, hand thinning or hand hot-capping that is not occasional or intermittent get another 5 minutes on top of the 10-minute rest period they are allowed by law for every 4 hours worked or major fraction thereof (i.e., their rest-break time is 15 minutes instead of 10 minutes).
4. Employees engaged in hand weeding, hand thinning or hand hot-capping must be supplied with gloves and kneepads as may be necessary and with training in accordance with existing Injury and Illness Protection Program guidelines.
Prop 64 Limits Unfair Competition Lawsuits
(By Patrick Moody, Barsamian, Saqui & Moody*)
For many years, plaintiffs' attorneys have profited from so-called "bounty hunter" lawsuits under California law. A new law, passed as Proposition 64 in the last election, made it harder for plaintiffs' attorneys to coerce employers into settling claims.
Many cases that arose under the Unfair Competition Law would start with an alleged violation of another law, usually some sort of wage-and-hour violation such as failure to provide proper rest breaks and/or meal periods. Then, the plaintiffs' attorneys would say that the failure is an unfair business practice and sue under the Unfair Competition Law.
The advantage for the plaintiffs' attorneys, as many employers have discovered, is that plaintiffs can extend the statute of limitations in wage-and-hour lawsuits from the normal three years to four years by calling the alleged violation an unfair business practice.
The Unfair Competition Law also allowed attorneys to bring lawsuits on behalf of the "general public," even if they did not have a client who was actually harmed by the alleged violation of law.
The law also allowed cases to proceed as "representative" actions, which allowed an individual plaintiff to represent an unnamed group of people who were supposedly harmed by the alleged unfair business practice. This allowed employees to pursue what were essentially class-action lawsuits, without satisfying the often difficult procedural requirements for class-action cases.
Also, legal services organizations like California Rural Legal Assistance (CRLA), which are prohibited from bringing class-action litigation, could bring class-action-type cases by calling them "representative" actions under the Unfair Competition Law.
On Nov. 2, California voters overwhelmingly approved Proposition 64, which took effect immediately. Proposition 64 made these important changes to the Unfair Competition Law:
Private individuals may sue for unfair competition only if they actually suffered an injury through the loss of money or property due to the alleged violation; and
Any person who files a lawsuit attempting to represent the interests of unnamed parties must satisfy the procedural requirements for class-action litigation.
What it means for employers: Prop. 64 represents an important reform to California law that will prevent many shakedown lawsuits that have hurt California's business climate. However, the Unfair Competition Law remains an important weapon against employers, especially in wage-and-hour cases. While the new class-action requirements may present a problem for organizations like CRLA, the recent growth in wage-and-hour class-action lawsuits, particularly those targeting agriculture, shows that there is no shortage of private law firms who are willing and able to target employers for large-scale alleged violations of the law.
The best way to protect your business is to make sure it is in compliance with applicable employment laws and wage-and-hour laws. An internal audit is a great way to assess where you are and to correct any problems before you get stuck in costly litigation.
*(The goal of this article is to provide employers with current information on labor and employment laws. Its contents should neither be interpreted nor construed as legal advice or opinion. The reader should consult with Barsamian, Saqui & Moody at (559) 248-2360 in Fresno, (916) 782-8555 in Sacramento, or toll-free at (888) 322-2573, for individual responses to questions or concerns about any given situation.)
Megan's Law Web Site Poses Issues for Employers
(By Rod M. Fliegel and Justin Curley*)
On Dec. 15, California 's new Megan's Law Web site was unveiled, allowing anyone with the click of a mouse to easily obtain access to California 's database of the state's more than 63,000 registered sex offenders. The Web site was launched to help Californians better protect their families by becoming aware of the whereabouts of convicted sex offenders living in their communities. However, California law expressly prohibits the use of the state's sex offender registry information for employment purposes, except as otherwise provided by statute or to "protect a person at risk." Misuse of registry information is actionable and may expose the user to actual and exemplary damages, attorneys' fees and a civil fine.
California employers are therefore cautioned to not make precipitous employment decisions based upon information obtained about a job applicant or current employee through California 's Megan's Law Web site. A hasty decision to terminate an employee whose name is found on the Megan's Law Web site could lead to a claim for damages, a civil fine, and costly litigation expenses. California employers are not, however, entirely without recourse to protect their employees and customers from potential risks, as employers may continue to make lawful employment decisions based upon properly obtained criminal background checks and self-disclosed criminal history information.
Legal Background: Sex offenders living in California have been required by law since 1947 to register with their local law-enforcement agencies. However, for nearly 50 years that information was not available to the general public. In 1994, California enacted a law establishing a "900" toll line telephone service to provide information regarding the identity of individuals convicted of sexual offenses against children. In 1996, with the passage of California's Megan's Law, the "900" toll line was expanded to provide information to the public concerning individuals who have been convicted of sexual offenses against adults as well as children. Additionally, California's Megan's Law required the California Department of Justice to produce and make available to the public at police stations a CD-ROM containing information on serious and high-risk sex offenders. Nonetheless, the Megan's Law sex offender database was not readily accessible for many Californians, and in 2004 California lagged behind over 30 states that had already made their states' Megan's Law databases available to the public online.
The California legislature therefore passed AB 488 on Aug. 24, and Gov. Schwarzenegger signed it into law on Sept. 24. Codified as California Penal Code section 290.46, the statute requires the California Department of Justice to establish and regularly update a Web site which makes available to the public information contained in the state's sex offender registry. Information provided on the Web site includes the sex offender's name, aliases, age, gender, race, physical description, and, if available, a photograph. The Web site also includes a description of the criminal convictions that require the individual to register as a sex offender, and the county and zip code where the individual last registered. For the state's most serious offenders, the Web site provides a home address. Users may search the Web site by city, county, zip code, or individual name. They can also type in the name of a school or park in a community to locate sex offenders living in the nearby vicinity.
What Employers Should Know: Section 290.46(j)(2) expressly prohibits the use of information disclosed on the Web site for purposes relating to health insurance, insurance, loans, credit, employment, education, housing, or benefits, privileges, or services, provided by any business establishment. The statute provides that a user is authorized to use the Web site's information "only to protect a person at risk," who is defined by Penal Code section 290.45(a)(8) as a person who "is or may be exposed to a risk of becoming a victim of a sex offense committed by the offender."
California employers may understandably find themselves scratching their heads as to why this statute has the practical effect of making convicted sex offenders in certain respects a "protected class" of employees in California. However, section 290.46(j)(2) is not new; it is identical to a provision included in California 's Megan's Law statute, section 290.4(e)(2), enacted into law in Sept. of 1996. While no court has interpreted either of these provisions, a review of the legislative findings of California 's Megan's Law statute offers a glimpse as to why these provisions were included:
"This policy of authorizing the release of necessary and relevant information about serious and high-risk sex offenders to members of the general public is a means of assuring public protection and shall not be construed as punitive . . . . The Legislature also declares, however, that in making information available about certain sex offenders to the public, it does not intend that the information be used to inflict retribution or additional punishment on any such person convicted of a sexual offense." (Emphasis added.)
The California legislature was concerned with increasing community awareness about the whereabouts of convicted sex offenders, not precipitating additional public retribution or punishment beyond the sex offender's prison sentence. Had the statute been deemed a "punishment," it likely would have run afoul of state and federal constitutional prohibitions against ex post facto laws, that is, laws which inflict a punishment retroactively.
What Employers Can Do: Employers' hands are not, however, completely tied. The new statute does not prohibit employers from taking employment action based upon properly obtained criminal background checks and self-disclosed criminal history information. Thus, employers may make hiring decisions based on court records documenting a sex offense conviction or conviction information self-disclosed by an applicant during the hiring process.
As an initial matter, employers should evaluate to what extent, if any, they are regulated by section 290.46. The statute provides that its restrictions do not affect authorized access to, or use of, sex offender registry information by employers required by law or authorized to request summary criminal history information from the California Department of Justice.
Employers regulated by section 290.46 may ask whether there is a difference between sex offender registry information and conviction records. Registry information is now readily available at the Megan's Law Web site. Conviction records, on the other hand, are typically obtained by employers through a background check company. The distinction is highly material. When using a background check company, employers must comply with the fair credit reporting laws (e.g., obtain advance consent from the applicant, follow the prescribed "adverse action" procedures, etc.). Perhaps more importantly, background check companies in California may not report records of conviction (even felony convictions) that, from the date of disposition, release or parole, antedate the background check report by more than seven years. As a practical matter, this may lead to the bizarre result that an employer may not learn of an old sex offense conviction through the background check process, even though the name of the individual in question appears on the sex offender registry.
Employers may also obtain information concerning prior sex convictions by job applicants' self-disclosure. Employers should consider using job application forms that include a question asking if the applicant has ever been convicted of a felony offense. Further, employers should ensure their employees are properly trained to conduct effective interviews to elicit adequate information concerning prior convictions so that employers can make fully informed hiring decisions. By obtaining this information through the hiring process, employers need not rely on (and should avoid consulting) the Megan's Law registry.
California employers can also expect to face a delicate situation: An employer may learn from the Megan's Law Web site that a current employee is registered as a convicted sex offender. An employer may learn of this information from the Web site directly (i.e., the employer personally accessed the Web site) or indirectly (i.e., the employer is notified by someone who accessed the Web site).
This situation presents a risk-tolerance issue for the employer: To avoid liability under section 290.46, the employer should evaluate any potential risk the employee may pose to fellow employees or customers before deciding to take an adverse employment action. The employer should make this evaluation considering all the facts and circumstances about the employee's work history at the company and the working environment. For example, if the employee works with or near children, or is an in-house service provider, an employer might be able to take action and be exempt from the statute's restrictions on use based upon the statute's provision permitting use of the Web site's information "to protect a person at risk." The purpose of the Megan's Law Web site would arguably be negated if employers could not take such action to protect children and other individuals who truly may be at risk.
In assessing potential risk, an employer should also evaluate the employee's work history at the company. For example, an employer may consider how long the employee has been at the company and what sort of employee he or she has been. Has the employee developed and maintained professional and productive relationships with his or her coworkers? Is the employee courteous and respectful of others? Answering these questions will enable an employer to better determine what level of risk, if any, the employee may present at the workplace.
An employer may wish to obtain more information to evaluate whether the employee poses an ongoing risk. In such a situation, an employer could meet with the employee privately to inquire as to when the conviction occurred, the circumstances surrounding the conviction, and if and to what extent the employee participated in a rehabilitation program. This information will help the employer assess any risk the employee may present and determine whether to take further action.
Employers should recognize that it is not clear from the plain language of the statute whether such a line of inquiry from an employer, prompted by information disclosed on the Megan's Law Web site, is permissible. However, as the primary purpose of the Web site is to provide the public with information to assess risks, making an inquiry to assess a potential risk would seem perfectly appropriate. It seems unreasonable that a court would conclude an employer was compelled to do absolutely nothing when confronted with a potential risk to his or her employees and customers.
Conclusion: As discussed above,employers can take several steps to help ensure the safety of their employees and customers:
* Ensure the company has appropriate criminal-history questions in its employment application and has implemented suitable policies and hiring guidelines.
* Train managers and supervisors to conduct effective interviews.
* Evaluate whether and how to use criminal background checks, ensuring compliance with the fair credit reporting laws, privacy laws, equal employment opportunities laws, and criminal and local laws.
(* Rod M. Fliegel is a partner and Justin Curley is an associate with the national management-side labor and employment law firm, Littler Mendelson. The firm has expertise in all labor- and employment-law matters, including issues affecting employers in the agricultural industry. Rod Fliegel can be reached at rfliegel@ littler.com or 415-439-6253. © 2005 Littler Mendelson. All Rights Reserved. LITTLER MENDELSON and ASAP are registered trademarks of Littler Mendelson, P.C.)
Law Protecting Employees in Military Amended
President Bush last year signed into law the Veterans Benefits Improvement Act of 2004, which amends portions of the 1994 Uniformed Services Employment and Reemployment Rights Act (USERRA), providing reemployment protection and other benefits for veterans and employees who perform military services. The Veterans Benefits Improvement Act added two requirements that affect employers. One addition extends the period for continuation of health-care coverage; the other creates an obligation to provide covered employees with notice of their USERRA rights, benefits and obligations.
Employees covered by the act now have their maximum coverage period for employer-provided health coverage extended for a maximum coverage period from 18 to 24 months. The USERRA gives employees who are absent from work due to duties in the uniformed services the right to continue employer-provided health care coverage even if the employer is not bound by COBRA, the federal law mandating continuation of coverage for eligible employees who so elect.
The extension of the coverage period under the new act applies to all continuation elections made after Dec. 10, 2004. The maximum amount that an employee who elects to continue health care coverage can be charged is 102% of the full premium under the plan, unless the employee is absent from work for less than 31 days, in which case the employee cannot be charged more than the employee's share of the cost of the coverage.
The act also requires employers to provide employees with notice of their rights, benefits and obligations under the USERRA. Posting the notice of USERRA rights where other employee notices customarily are posted will satisfy the requirement. The required language for the notice is available to employers by the Secretary of Labor and is available on the Internet at www.dol.gov/vets/rograms/ serra/poster.pdf. A poster is included in this issue of FELS Newsletter on page 6.
The USERRA provides employees with on-the-job training and apprenticeship programs. educational assistance for surviving spouses of service members who die while on active duty, and other educational benefits.
Who is Covered: The USERRA applies to persons who perform duty, voluntarily or involuntarily, in the "uniformed services," which include the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service commissioned corps, as well as the reserve components of each of these services. Federal training or service in the Army National Guard and Air National Guard also gives rise to rights under the USERRA. Further, under the Public Health Security and Bioterrorism Response Act of 2002, certain disaster response work (and authorized training for such work) is considered "service in the uniformed services" as well.
Uniformed service includes active duty, active duty for training, inactive duty training (such as drills), initial active duty training, and funeral honors duty performed by National Guard and reserve members, as well as the period for which a person is absent from a position of employment for the purpose of an examination to determine fitness to perform any such duty.
The USERRA covers nearly all employees, including part-time and probationary employees. The USERRA applies to virtually all U.S. employers, no matter their size.
Basic Provisions/Requirements The pre-service employer must re-employ service members returning from a period of service in the uniformed services who meet five criteria:
* The member must have held a civilian job;
* The member must have notified the employer that the member was leaving the job for service in the uniformed services, unless giving notice was precluded by military necessity or otherwise impossible or unreasonable;
* The cumulative period of service must not have exceeded five years;
* The member must not have been released from service under dishonorable or other punitive conditions; and
* The member must have reported back to the civilian job in a timely manner or have submitted a timely application for re-employment.
The USERRA establishes a five-year cumulative total on military service with a single employer, with certain exceptions allowed for situations such as call-ups during emergencies, reserve drills and annually scheduled active duty for training.
The USERRA also allows an employee to complete an initial period of active duty that exceeds five years (e.g., enlistees in the Navy's nuclear power program are required to serve six years).
Employee Rights: Under the USERRA, restoration rights are based on the duration of military service rather than the type of military duty performed (e.g., active duty for training or inactive duty), except for fitness-for-service examinations. The time limits for returning to work are as follows:
* Less than 31 days service: By the start of the first regularly scheduled work period after the end of the last day of duty, plus time required to return home safely and an eight-hour rest period. If this is impossible or unreasonable, then as soon as possible.
* 31 to 180 days: The employee must apply for re-employment by the 14th day after completing military service. If this is impossible or unreasonable through no fault of the employee, then as soon as possible.
* 181 days or more: The employee must apply for re-employment by the 90th day after completing military service.
* Service-connected injury or illness: Reporting or application deadlines are extended for up to two years for persons who are hospitalized or convalescing.
The USERRA guarantees pension-plan benefits that accrued during military service, no matter whether the plan is a defined benefit plan or a defined contribution plan. Also, the USERRA provides health-benefits continuation for service members and their families during military service for up to 18 months. Further, the USERRA prohibits employment discrimination against a person on the basis of past military service, current military obligations, or an intent to serve.
Compliance Assistance Available: The Veterans' Employment and Training Service (VETS) enforces the USERRA. However, the law also allows an employee to enforce his or her rights by filing a court action directly, without filing a complaint with VETS.
Penalties/Sanctions: A court may order an employer to compensate a prevailing claimant for lost wages or benefits. The USERRA allows for liquidated damages for "willful" violations.
Relation to State, Local and Other Federal Laws: The USERRA does not preempt state laws providing greater or additional rights, but it does preempt state laws providing lesser rights or imposing other eligibility criteria.
For more information about the new USERRA notice, visit the U.S. Department of Labor's Web site at http://www.dol.gov/ opa/media/press/opa/OPA20050338.htm
Employment Termination Checklist
(By Patrick Moody, Barsamian, Saqui & Moody*)
Having employees means that sooner or later, an employer will have to discharge an employee, or an employee will voluntarily leave the employment. Not only must the employer deal with the emotional aspect of a termination situation, but as with almost every area of employment, the employer must consider legal issues when the employment relationship ends, whether voluntarily or involuntarily. To help in this regard, here is an outline of the necessary documentation to use at the end of the employment relationship.
An employer must provide these items to an employee when the employment relationship ends:
Final Paycheck (this must include all compensation due and owing, including wages/salary, accrued vacation, any employer-provided severance package, etc.);
• Notice to Employee of Change in Relationship, in writing ;
• For Your Benefit (EDD Form 2320), which provides information about California's job-training services, unemployment insurance, and disability insurance; and
• Health Insurance Premium Payment Notice, a form issued by the California Department of Health Services regarding eligibility for potential State payment of insurance premiums).
The deadline for giving the employee the final paycheck depends on whether the employee is fired or quits and, if he or she quits, how much notice was provided. Where an employee quits voluntarily after giving at least 72 hours' notice, the employer must provide the final paycheck on the employee's last day of work. Where the employees quits on less than 72 hours' notice, the employee must receive the final paycheck within 72 hours after the quit. Where an employer discharges an employee, the final paycheck is due immediately.
An employee, and his or her qualified beneficiaries, who receives health benefits through his or her employer must receive notice as to his or her rights to continue such coverage under either the federal COBRA law, or the state Cal-COBRA law, whichever is applicable (employers with 20 or more employees are covered by the federal law, while employers with two to 19 employees are covered by the state law). Most employers rely upon their insurance carrier to timely provide the proper notices, but the employer must notify the carrier that the employee will be losing his or her coverage. An employer providing the required notices itself must do so timely. While not required, an employer should have a departing employee sign an acknowledgment that he or she received all compensation due and owing.
Finally, an employer should at least consider whether it is advisable to seek a release of claims from a terminated employee, to prevent the employee from filing a lawsuit. While not required, obviously, it is sometimes worth the expense of a severance package to avoid the possibility of claims.
What This Means for Employers: Employers need to realize they must provide proper documentation when the employment relationship ends to ensure they are not opening themselves up to potential technical violations.
(Source: Barsamian, Saqui & Moody. The goal of this article is to provide employers with current information on labor and employment laws. The contents should neither be interpreted nor construed as legal advice or opinion. The reader should consult with Barsamian, Saqui & Moody at (559) 248-2360 in Fresno, (916) 782-8555 in Sacramento, or toll-free at (888) 322-2573, for individual responses to questions or concerns about any given situation.)
Wages for Suspended vs. Discharged Employees
When suspending or discharging an employee, employers must comply with Labor Code provisions on the payment of final wages, the orders of the Industrial Welfare Commission (IWC) on reporting-time pay, and the company's personnel policies.
Suspensions: A suspension can be easily handled by telephone. Simply call the employee and inform him or her of the suspension and when to report back to work. This person is employed during the suspension, and the payday is not changed. Reporting-time pay provided under the IWC orders is not an issue because the employee did not report for work.
Non-exempt employees can be suspended for periods of time less than a week. An exempt employee could be suspended without pay for disciplinary reasons for a full week, and the deduction of that week of salary would not defeat his or her exempt status, as long as the monthly salary does not fall below the minimum monthly salary required for exempt status under Labor Code section 515, subdivision (a), currently $2,340.
Discharges: A discharge presents different issues, as Labor Code section 201 requires that a discharged employee be paid all wages due immediately upon the discharge. If not, Labor Code section 203 provides that the discharged employee is entitled to a penalty equal to a day's wages every day until those wages are paid in full or for 30 days, whichever first occurs.
Discharge in person is the logical way to end an employment relationship. The employee can be paid wages - including accrued vacation benefits - immediately, thus satisfying Labor Code section 201. Required documents can be handed over and an exit interview conducted, if desired.
The drawback is that the employee is entitled to reporting-time pay under the applicable IWC order. An employee who reports for work but is not put to work must be paid one-half the usual or scheduled day's work, but not less than two nor more than four hours.
A suspension in lieu of immediate discharge designed to buy time so that a final paycheck can be prepared is not recommended and most likely will raise a red flag with the Labor Commissioner, causing your firm to be subject to waiting-time penalties under Labor Code section 203, as discussed above.
Discharge by telephone creates the problem of how to pay wages immediately. The delay in getting final payment of wages to the employee by mail or courier should be considered in deciding whether to discharge in person or by telephone, in light of the applicability of section 203 waiting-time penalties.
(Permission to reprint article granted by California Chamber of Commerce, 1215 K Street, Suite 1400 ,Sacramento, CA 95814, (916) 444-6670)