“In the US, nearly 13 lawsuits are filed every minute, and sometimes it seems as if most of them are in California,” says attorney Christopher C. Hoffman. Some special California rules that confuse HR managers are those around travel pay, deductions for tools, required uniforms, and pay stubs.
Hoffman, the regional managing partner of Fisher & Phillips, LLP in La Jolla, delivered his remarks the Society for Human Resource Management (SHRM) Annual Conference and Exhibition, held recently in San Diego.
Travel Time
As if federal travel pay rules weren’t screwy enough, California goes them one better. Here are Hoffman’s tips:
- Commuting Travel Time. Traveling from one’s home directly to the office, and returning directly to one’s home at the end of the day, is not hours worked. However, if work is performed during the commute, that of course would be compensable time.
- Local Job Site Travel. Commuting to a job site in the employee’s own vehicle from home is not compensable unless time is greater than “normal” commute. However, commuting to a job site from the employer’s facility and/or in employer’s vehicle is compensable.
- Out of Town Travel. With certain exceptions, all time spent traveling out of town counts as working time regardless of the normal work schedule. This includes common carrier time, time at the airport, time in taxis, time in hotel, etc. (This is quite different from the federal rules.)
The wage and hour sharks are circling—don’t be the next victim. Check out ERI’s HR management & compliance report, How to Comply with California Wage and Hour Law, exclusively for California employers. Find out how to avoid getting burned in a complicated—and costly—wage/hour suit. Read more.
Tools
First of all, if a California 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. However, an employee who is paid at least twice the minimum wage may be required to furnish and maintain the hand tools and equipment customarily required by his or her trade. (There are exceptions that may apply to apprentices, beauty salons, and barbershops.)
Uniforms
California employers who wish to have their employees wear uniforms must provide them, says Hoffman, unless the required clothing is “non-distinctive.” Employers must clean uniforms unless they can be washed at home.
Deductions are permitted for unreturned uniforms, if there is a written agreement and if there is intentional misconduct or gross negligence involved. Unfortunately, simple negligence isn’t enough to warrant the deduction. “The classic case,” says Hoffman, “is the employee who says, ‘I wanted to return the uniform, but it flew out the car window.'” No deduction there, Hoffman says.
Deductions from Wages
California severely limits the organization’s ability to make deductions from employee wages, Hoffman says.
First of all, statutorily authorized exemptions are OK, he says. For example, that would cover income taxes or garnishments.
Employers who also make deductions expressly and voluntarily authorized in writing by the employee to cover insurance premiums, hospital or medical dues or other deductions not amounting to a rebate or deduction from the wage paid to the employee.
Finally, employers may make deductions authorized by a collective bargaining or wage agreement, specifically to cover health and welfare or pension payments.
In any case, Hoffman says, employers cannot take “balloon payments” from final pay checks. If you’ve loaned an employee money, and he or she is paying it off at $50 per paycheck, that’s all you can take out of the last paycheck, even if thousands are still owed. You’ll have to go to small claims court to get the rest, Hoffman says.
Don’t become the next wage/hour headline! New report, How To Comply with California Wage & Hour Law, shows you how to avoid expensive and time-consuming lawsuits. Get your CA compliance questions answered with confidence. Learn more.
Here’s what the California Department of industrial Relations cites as common payroll deductions that are unlawful:
Gratuities. An employer cannot collect, take, or receive any gratuity or part thereof given or left for an employee, or deduct any amount from wages due an employee on account of a gratuity given or left for an employee. However, a restaurant may have a policy allowing for tip pooling/sharing among employees who provide direct table service to customers.
Photographs. If an employer requires a photograph of an applicant or employee, the employer must pay the cost of the photograph.
Bond. If an employer requires a bond of an applicant or employee, the employer must pay the cost of the bond.
Business Expenses. An employee is entitled to be reimbursed by his or her employer for all expenses or losses incurred in the direct consequence of the discharge of the employee’s work duties.
Medical or Physical Examinations. An employer may not withhold or deduct from the wages of any employee or require any prospective employee or applicant for employment to pay for any pre-employment medical or physical examination taken as a condition of employment, nor may an employer withhold or deduct from the wages of any employee, or require any employee to pay for any medical or physical examination required by any federal or state law or regulation, or local ordinance.
In tomorrow’s Daily, more of Hoffman’s wage and hour tips, plus an introduction to a wage and hour guide especially for California employers.