1. Can an employee use California Paid Sick Leave due to COVID-19 illness?
Yes. If the employee has paid sick leave available, the employer must provide such leave and compensate the employee under California paid sick leave laws.
Paid sick leave can be used for absences due to illness, the diagnosis, care or treatment of an existing health condition or preventative care for the employee or the employee’s family member.
Preventative care may include self-quarantine as a result of potential exposure to COVID-19 if quarantine is recommended by civil authorities. In addition, there may be other situations where an employee may exercise their right to take paid sick leave, or an employer may allow paid sick leave for preventative care. For example, where there has been exposure to COVID-19 or where the worker has traveled to a high risk area.
2. If an employee exhausts sick leave, can other paid leave be used?
Yes, if an employee does not qualify to use paid sick leave, or has exhausted sick leave, other leave may be available. If there is a vacation or paid time off policy, an employee may choose to take such leave and be compensated provided that the terms of the vacation or paid time off policy allows for leave in this circumstance.
3. Can an employer require a worker who is quarantined to exhaust paid sick leave?
The employer cannot require that the worker use paid sick leave; that is the worker’s choice. If the worker decides to use paid sick leave, the employer can require they take a minimum of two hours of paid sick leave. The determination of how much paid sick leave will be used is up to the employee.
4. What options do I have if my child’s school or day care closes for reasons related to COVID-19?
Employees should discuss their options with their employers. There may be paid sick leave or other paid leave that is available to employees. Employees at worksites with 25 or more employees may also be provided up to 40 hours of leave per year for specific school-related emergencies, such as the closure of a child’s school or day care by civil authorities (see Labor Code section 230.8). Whether that leave is paid or unpaid depends on the employer’s paid leave, vacation or other paid time off policies. Employers may require employees use their vacation or paid time off benefits before they are allowed to take unpaid leave, but cannot mandate that employees use paid sick leave. However, a parent may choose to use any available paid sick leave to be with their child as preventative care.
5. Can an employer require a worker to provide information about recent travel to countries considered to be high-risk for exposure to the coronavirus?
Yes. Employers can request that employees inform them if they are planning or have traveled to countries considered by the Centers for Disease Control and Prevention to be high-risk areas for exposure to the coronavirus. However, employees have a right to medical privacy, so the employer cannot inquire into areas of medical privacy.
6. Is an employee entitled to compensation for reporting to work and being sent home?
Generally, if an employee reports for their regularly scheduled shift but is required to work fewer hours or is sent home, the employee must be compensated for at least two hours, or no more than four hours, of reporting time pay.
For example, a worker who reports to work for an eight-hour shift and only works for one hour must receive four hours of pay, one for the hour worked and three as reporting time pay so that the worker receives pay for at least half of the expected eight-hour shift.
Additional information on reporting time pay is posted online.
7. If a state of emergency is declared, does reporting time apply?
Reporting time pay does not apply when operations cannot commence or continue when recommended by civil authorities. This means that reporting time pay does apply under a state of emergency, unless the state of emergency includes a recommendation to cease operations.
8. If an employee is exempt, are they entitled to a full week’s salary for work interruptions due to a shutdown of operations?
An employee is exempt if they are paid at least the minimum required salary and meet the other qualifications for exemption. Federal regulations require that employers pay an exempt employee performing any work during a week their full weekly salary if they do not work the full week because the employer failed to make work available.
An exempt employee who performs no work at all during a week may have their weekly salary reduced.
Deductions from salary for absences of less than a full day for personal reasons or for sickness are not permitted. If an exempt employee works any portion of a day, there can be no deduction from salary for a partial day absence for personal or medical reasons.
Federal regulations allow partial day deductions from an employee’s sick leave bank so that the employee is paid for their sick time by using their accrued sick leave. If an exempt employee has not yet accrued any sick leave or has exhausted all of their sick leave balance, there can be no salary deduction for a partial day absence.
Deductions from salary may also be made if the exempt employee is absent from work for a full day or more for personal reasons other than sickness and accident, so long as work was available for the employee, had they chosen to work.
9. What protections does an employee have if they suffer retaliation for using their paid sick leave?
The Labor Commissioner’s Office enforces several laws that protect workers from retaliation if they suffer adverse action for exercising their labor rights, such as using paid sick leave or time off related a specified school activity as outlined in question 4. Additional information on how to file a retaliation or discrimination complaint is posted online.
Given the evolving nature of this unprecedented health emergency, if you choose not to use available paid sick leave, or have no other paid leave available, employees and employers should discuss what unpaid or paid leave options may be available.
Making immigration-related threats against employees who exercise their rights under these laws is unlawful retaliation.
10. If I am a party in an action filed with the Labor Commissioner’s Office, can I seek an accommodation to participate remotely due to the coronavirus?
Yes. Requests to participate remotely should be emailed to the district office in which the claim has been filed. These requests will be evaluated on a case-by-case basis. A full listing of Labor Commissioner’s Office locations including email addresses is posted online.
In this video, I discuss what actions should be taken when someone is served with a complaint.
If you have any questions regarding this topic, please contact The Rinka Law Firm, PC at 310-556-9653.
Below is my latest video blog discussing the different ways a plaintiff may serve a complaint on the defendant. If you have any questions about this video or any other legal questions, please feel free to contact our firm at 310-556-9653.
CCP Section 998 Offer to Compromise is named after the California Code of Civil Procedure Section 998 that defines the function of an offer to compromise. A CCP Section 998 Offer to Compromise can be a valuable tool to try and settle a lawsuit.
The purpose of a 998 Offer to Compromise is to shift the costs from the prevailing party in a lawsuit to the non-prevailing party as a penalty for not accepting a reasonable settlement offer. Below are two typical scenarios involving a 998 offer to Compromise.
Plaintiff Beats HIs/Her 998 Offer to Compromise Issued to Defendant
The first example is a situation where the Plaintiff makes a 998 Offer to Compromise to Defendant for $100,000.00. Now, if the Defendant accepts Plaintiff’s offer to compromise of $100,000.00, the lawsuit is over.
In the event that the Plaintiff obtains a judgment in excess of $100,000.00, the Defendant could be responsible to pay all the expert witness costs Plaintiff incurred in prosecuting his or her case from the date that the Plaintiff issued the 998 Offer through verdict. So, in an automobile accident, the Plaintiff has to retain medical experts to testify at trial about the Plaintiff’s injuries, these costs can easily exceed $20,000.00. If the Plaintiff obtains a judgment in excess of the $100,000.00, the Defendant would be responsible for these expert witness costs.
In addition, if the auto insurance policy had a liability limit of $100,000.00 and the Defendant insurance company rejected Plaintiff’s 998 Offer of $100,000.00, the insurance company could be responsible for the judgement amount in excess of $100,000.00.
So as you can see, by obtaining a verdict in excess of the 998 Offer amount, the Plaintiff not only receives the judgement amount, but also does not have to pay for any of the expert witness costs incurred in obtaining the judgment. This can lead to a windfall by the Plaintiff of tens of thousands of dollars.
Defendant Beats Its Offer to Compromise Issued to Plaintiff
If a Plaintiff rejects a 998 Offer to Compromise issued by Defendant and fails to obtain a verdict for more than the 998 Offer, Plaintiff could be responsible for Defendant’s expert witness costs as well as court costs, deposition costs and copying costs. In addition, even if the Plaintiff obtains a favorable verdict, which would normally entitle Plaintiff to recover certain court costs pursuant to CCP sections 1032 and 1033.5 from Defendant, if the verdict amount did not exceed Defendant’s 998 Offer, Plaintiff may be denied the recovery of certain costs from Defendant.
Accordingly, if Defendant issued a 998 Offer in the amount of $150,000.00 and Plaintiff obtained a verdict for $100,000.00, the Plaintiff could end up owing Defendant money if the Defendant’s costs exceed $100,000.00.
A 998 Offer to Compromise must be in writing, made in a timely manner and be clear, specific and calculable to the offeree.
A 998 Offer to Compromise can be made at any time up to ten (10) days before trial. The offer is deemed withdrawn after 30 days or the start of trial/arbitration.
Lastly, the offer must be reasonable. Reasonableness really comes down to whether at the time that the offer was made, did the party receiving the offer have enough information to determine whether the offer to compromise was reasonable. This determination will come down to whether the parties had an opportunity to learn about the facts underlying the lawsuit to adequately assess whether the offer to compromise was reasonable.
A court will likely find that the party did not have an opportunity to determine the reasonable of the offer to compromise if the offer is made within weeks after the lawsuit started. It is important for the parties to develop the facts before issuing a 998 Offer to Compromise.
If you have any questions regarding this matter or have a general legal question, please feel free to contact the attorneys at The Rinka Law Firm, PC at 310-556-9653.
Under California labor law, an employee who is non-exempt is entitled to meal and rest periods. I discussed the difference between a non-exempt employee and an exempt employee in a prior blog; you can click here to read the entry in its entirety. Briefly, a non-exempt employee is an hourly employee that must be paid overtime and must be given lunch and rest breaks. Whereas, an exempt employee must be a professional, such as a doctor, lawyer, accountant, an exempt employee is a paid salary and the employer does not need to ensure that the exempt employee receives his or her meal and rest periods.
CALIFORNIA REST PERIOD LAW
An employer is required to provide an employee a paid 10 minute uninterrupted rest period if the employee works 4 to 6 hours. When the employee is on his or her break, s/he is allowed to leave the premises, make personal telephone calls and not perform any work. The rest period should also occur as closely to the middle of the employee’s work shift as possible. In the event that the employee is not given time to take a 10 minute uninterrupted rest period, the employee is entitled to one hour’s wage.
If the employee is scheduled to work 6 hours 1 minute up to 10 hours the employee is entitled to a second 10 minute uninterrupted rest period. In the event that the employee is not given time to take a second rest period, the employee is entitled to one hour’s wage. However, if an employee misses to rest periods in one shift, the employee is still only entitled to one hour’s wage as compensation, despite missing two breaks.
Below is a chart that sets forth the number of breaks an employee is entitled to based on the number of hours worked.
Number of Hours Worked
Number of Rest Breaks
0 – 3 hrs. 29 mins.
3:30 – 6 hrs.
6:01 – 10 hrs.
|10:01 – 14 hr.||
CALIFORNIA LUNCH BREAK LAW
Under California Labor Law, a non-exempt employee is entitled to at least a 30 minute lunch break when the employee has worked more than five hours. Accordingly, an employee who is scheduled to work 8 hours, would be entitled to two paid 10 minute rest periods and one 30 minute lunch period.
Unlike the 10 minute rest periods, the employer is not required to pay the employee while on lunch break. However, the employee is allowed to leave the employer’s premises, conduct personal business, not perform any work related activities.
It is important to understand that the employee has an affirmative duty to take his or her rest periods. The employer only has to provide the employee with the opportunity to take a lunch, so if the employee fails to take lunch when given the opportunity to do so, the employee is not entitled any compensation for the missed meal period. If you do not have time to take a lunch break during the day, you are entitled to one hour’s worth of wages for your missed lunch break.
An employee is allowed to waive his or her meal period if it done so in writing and signed by the employee. The waiver must also state that the waiver can be revoked at any time by writing. If, however, the employee is scheduled to work more than 6 hours, the employee cannot waive the meal period.
When an employee is on a meal break, the employee is allowed to leave the premises and perform personal errands. The employee is not to perform any work related activities.
If you are an exempt employee, your employer is not legally required to provide you meal and rest periods.
If you have any questions about California’s meal and rest period laws, please contact the attorneys at The Rinka Law Firm, PC at 310-556-9653 and receive a free consultation.
I am pleased to announce that I am the new Los Angeles Alumni Network Leader for the University of Minnesota. I look forward to meeting fellow alumni and their families in 2019. Please be on the lookout for an announcement setting forth information about the first alumni event scheduled for next month. Ski-U-Mah!
A couple of weeks ago I received my summons for jury duty. As a trial attorney, I deeply appreciate the important role the public plays in the jury system and its critical role in our legal system. I also do not believe that any attorney takes for granted the sacrifice jurors make when sitting on a jury, but I do believe that the appreciation attorneys feel towards jurors is probably not as great as it perhaps should be. Receiving my jury summons truly makes me appreciate what jurors have to go through once they are asked to report for jury duty.
In Los Angeles, when you receive a Summons for Jury Service you have to take affirmative actions in order to ensure that you do not run afoul of your legal obligations. Specifically, the Summons sets forth the duties, you as a potential juror, are required to comply with upon receipt of the Jury Summons.
Registration with the Los Angeles County Superior Court
There are two ways to register with the Los Angeles County Superior Court after receiving your Jury Summons, either by telephone at 213-972-0970 or online at https://www.lacourt.org/jury. You are required to register within 5 days of receiving your jury summons, so do not waste time and miss this deadline.
When calling by telephone at 213-972-0370, be sure to have your Summons for Jury Service in front of you because you will need to provide your Juror ID Number, Pin Number and answer several questions regarding your availability to serve on a jury. The process is rather quick and only takes a couple of minutes.
When registering on-line, you will also want your Summons for Jury Service handy because you will also need to provide yourJuror ID Number, Pin Number and answer several questions regarding your availability to serve on a jury. During this initial registration process, you can ask for a delay in serving on a jury, however simply asking for a delay to serve does not mean your request will be granted. The County of Los Angeles clamped down on bogus excuses for delaying jury service several years ago, so if you do not have a strong, legitimate reason for delaying jury service, your request for a delay will be denied.
On-Call Jury Duty
Jury duty always begins on a Monday, so the Sunday evening before you are to begin jury duty you are required to call the registration telephone number (213-972-0970) or use they jury service portal on the Los Angeles County Superior Court website at www.lacourt.org/jury. You will be informed whether you have to report for jury duty on Monday. If you are not required to report for jury duty on Monday, you do not have to appear at the Superior Court. However, that does not mean you are finished with jury service. Instead, you are required to check on Monday evening to see if you need to report for jury duty on Tuesday.
You keep checking to see if you report for jury duty until, (1) you are required to report to the courthouse for jury duty; or (2) you checked-in everyday from Sunday to Thursday to see if you are required to report for jury duty and on none of those days were you required to report for jury service.
The Los Angeles County Superior Court has a good system in place that only calls people to jury service if they are needed. It lessens the burden on the individual and businesses, while also ensuring that every litigant gets the opportunity to have his or her case heard before a jury of peers.