California: Birthplace of Legal Theories

By Joanne Deschenaux Jun 29, 2011

LAS VEGAS—“California has a well-deserved reputation as the place where new legal theories start,” Christopher Hoffman, an attorney with Fisher & Phillips in San Diego, told attendees June 26, 2011, during a session at the Society for Human Resource Management’s 63rd Annual Conference & Exposition.

Because of the scope and complexity of California laws, businesses that operate in the state face drastically increased operational costs, he said, noting that his clients not based in California are often shocked by the state’s laws.

However, “the good news is, employers in California can largely ignore federal law,” he said.”The bad news is, this is because California’s own statutes generally provide more protection.”

Leave laws and wage and hour issues stand out.

Leave Laws Differ from FMLA

“Leave law in California is a mess,” Hoffman said. And, “if you make a mistake in a leave case, it’s done. It’s over. You can’t go back and fix it.”

So, where does this leave HR?

HR can avoid—or at least manage—most leave-of-absence problems by maintaining excellent written communication with employees and documenting all related communications, he advised.

There are several differences among California’s leave law, the California Family Rights Act (CFRA) and the federal Family and Medical Leave Act (FMLA), Hoffman noted. These include:

*The FMLA’s military leaves are not a part of the CFRA.

*Registered domestic partners are covered explicitly by the CFRA but not by the FMLA.

*While the FMLA includes disabilities related to pregnancy as a serious health condition, the CFRA expressly excludes pregnancy-related disabilities. In California, the Pregnancy Disability Leave Law (PDLL) governs a female employee’s right to a leave of absence for disabilities attributable to pregnancy, childbirth or related medical conditions.

All employers with five or more employees must provide leave under the PDLL for the amount of time a female employee is disabled, up to four months. Although the leave may be unpaid, the employee’s job is protected during the time off.

The FMLA, CFRA and PDLL all interact, Hoffman noted. Up to the first 12 weeks of leave may be both FMLA and PDLL. At the end of the period of disability, CFRA leave would kick in, giving the employee as much as seven months of job-protected leave.

Complex Wage and Hour Law

“California wage and hour law is a tangled web, too,” Hoffman told attendees. While the Fair Labor Standards Act “serves as a backdrop, it is largely irrelevant,” he said. The state labor code provides the statutory structure, while industrywide wage orders usually provide the details.

California law requires that overtime (1.5 times the “regular rate”) be paid for all hours worked over eight hours a day, as well as over 40 hours worked in a week, unless an exemption applies. Double time (twice the “regular rate”) is required for all hours worked over 12 in a day.

The state uses a broad definition of hours worked: “Hours worked is the time during which an employee is subject to the control of an employer, and includes all of the time the employee is suffered or permitted to work, whether or not required to do so.”

This includes, for example, time commuting to a job site from the employer’s facility. Also, with certain exceptions, all time spent traveling out of town counts as working time regardless of the employee’s normal work schedule. This includes common carrier time, time at the airport, time in taxis and time in a hotel. The employer, however, may set a different rate of pay for time spent traveling.

In the past 10 years, wage and hour litigation has increased exponentially, particularly class-based claims, Hoffman noted. “Every week between 20 and 50 wage and hour class actions are filed in California.”

Joanne Deschenaux, J.D., is SHRM’s senior legal editor.


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