Seyfarth Synopsis: Summer is just getting started, and with it come special circumstances California employers should keep in mind. Vacations, hot weather, and company-sponsored events are among the summertime activities that raise employment issues. Here are some tips to beat the heat this summer.
The kids are out of school and employees are ready to hit the road. Here’s what you need to know as to vacation pay:
Must employers provide paid vacations? Employers need not provide vacation time at all, paid or unpaid. But California employers who elect to offer paid time off should be aware that this time is considered a form of wages that is earned as work is performed.
How is vacation pay accrued? Like other wages, vacation pay accrues proportionally as the employee works. Consider an employee who is entitled to two weeks (10 business days) of vacation time each year who works 40 hours per week. She will accrue 1.538 hours of vacation time for each week. This accrued vacation time is treated as wages. When an employee leaves the company, voluntarily or involuntarily, any accrued and unused vacation time should be paid out at the employee’s final rate of pay along with the employee’s final pay check.
Can employers require that employees use their vacation time by a certain date or forfeit it? No. California does not allow a “use-it-or-lose-it” approach to paid vacation time, but our previous posts explain how employers may place a cap on the amount of vacation an employee accrues or limit the eligibility for paid time off.
How does vacation pay compare to holiday pay? Holiday pay, like vacation pay, is something that employers need not provide but often do. Holiday hours, like vacation hours, do not count as hours worked for the purpose of calculating overtime pay. If a holiday is tied to a specific event (think birthdays or national holidays), then unused holiday pay is not due when an employee leaves the company. But employers should beware of “floating holidays.”
Preventing Heat-Related Illness.
Rising summer temperatures can present serious dangers for outdoor workers. Making sure you comply with California’s regulations for heat-related illness prevention means everyone can keep their cool.
California employers must provide non-exempt employees with a paid 10-minute rest break for every four hours worked or major fraction thereof. Refresh your recollection of California’s rest break requirement here. And employers in certain industries should be mindful of their additional obligations to help outdoor workers avoid heat-related illnesses by providing water, shade, and additional rest breaks as required by California’s heat illness prevention regulations.
Who is subject to heat illness prevention regulations? Anyone with outside workers, but the list of industries commonly affected includes, and is not limited to:
- Oil and gas extraction
- Transportation or delivery
What does California require regarding outdoor places of employment? Employers must establish, implement, and maintain an effective heat illness prevention plan for outdoor workers. The Department of Industrial Relations offers detailed instructions and tips to help employers comply with state laws, but below are some of the main concerns:
Drinking Water. In addition to mandatory break periods, employees must have access to potable water that is “fresh, pure, suitably cool, and provided free of charge.”
Shade. If temperatures are greater than 80° F, then employers must maintain an area with shade at all times that is either open to the air or provides ventilation or cooling.
High-heat procedures. When temperatures exceed 95° F, employees in the industries specifically listed above must be given a minimum 10-minute cooldown every two hours. These breaks may be concurrent with meal or other rest periods when the timing aligns properly.
What should I do if a worker suffers from heat-related illness? If a worker does show any signs of heat-related illness, a supervisor should be prepared to respond with first aid or other medical intervention—and should not permit a worker showing any symptoms of heat-related illness to resume working until the worker has sufficiently recovered from the symptoms.
Summer is the time of company picnics and other social events that bring colleagues together. But employers may unwittingly find themselves obliged to pay their employees for company-sponsored social events unless they follow a few ground rules.
When is a company-sponsored event compensable? Generally, there is a 4-factor test to determine whether employees must be paid. And while the rule refers to pay for lectures, meetings, or training programs, the rules are a good guideline for determining obligations for paying an employee for a company-sponsored event. An employer need not pay if all of the following apply:
- Attendance is outside business hours
- Attendance is voluntary
- The activity is not directly related to the employee’s job
- No substantive work is performed during the activity
How can employers sponsor events that do not trigger compensation? There are options for employers to consider to ensure their events fall outside the four-factor test spelled out above:
- Inform employees that the event is in fact voluntary (and then be mindful not to pressure them too much to attend).
- Throw the event off-site and outside typical business hours.
- Have any necessary work be done by exempt employees only.
With these guidelines in mind, everyone can beat the heat and enjoy the summer! As always, Seyfarth’s attorneys are available to answer your questions and address your concerns on these issues.