You don’t need a ton of HR or employment law experience to know that we do things a bit differently in the Golden State. Here are some of the ways that complying with Federal employment laws actually violates California law:

1. Using the Department of Labor approved forms to certify the need for FMLA/CFRA leave – The DOL has created forms to give employees to establi that they’re entitled to leave under the Family Medical Leave Act. There’s one for employees who request leave for their own serious health condition (pdf) and one for those who seek leave to care for a family member (pdf). While the California Family Rights Act parallels FMLA in many respects, it does not allow you to ask the patient’s diagnosis, which the FMLA forms ask in section A(3). [Edit: This is question A(4) in the latest version of the form.]

2. Determining exempt status based on an employee’s primary duties – Under federal law, exempt status depends on an employee’s primary duty. While the time spent performing that duty is a factor, it’s not dispositive. “Employees who do not spend more than 50 percent of their time performing their major or most important duty may nonetheless meet the primary duty requirement if the other factors … support such a conclusion.” But if you categorize such an employee as exempt in California, you’re violating the state’s wage and hour laws. Because in California, how the employees spend their time is dispositive.

3. Treating “highly compensated” employees as exempt – Federal law recognizes an exemption for certain employees earning over $100,000 per year. California does not.

4. Paying employees the federal minimum wage – Or even worse, taking the federal tip credit in calculating the minimum wage for tipped employees.

5. Paying terminated employees their final pay on the next regularly scheduled payday – That’s fine under federal law. But it subjects you to significant fines in California — equal to a full days’ pay for every day you’re late.

6. “Use-it-or-lose-it” vacation policies – Again, it’s acceptable under federal law to tell employees they will forfeit any accrued vacation that they don’t use it by a particular date. But not in California. Among other things, you’ll be shorting the employees on their termination pay (by not paying for all their accrued vacation). That will subject you to the same waiting time penalties as in the prior item.

7. Not paying daily overtime to nonexempt employees who work more than 8 hours in day.

So if you’re running a business in California, it’s not enough to simply comply with federal law. You need to pay attention to the specific requirements of California law, too. For more on California’s unique employment law requirements, check out this brief summary on Doing Business in California (pdf).


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