Firm News & Events

How Should a California Employer Handle a Deceased Employee’s Final Pay

by Christopher J. Nannini

August 14, 2026

Question: One of our employees recently passed away.  How should a California employer handle the employee’s final pay, including any accrued vacation?

Answer: The employer’s first step is to determine who has legal authority to receive the deceased employee’s final wages.  California law does not allow an employer to simply hand the paycheck to the person who calls first, even when that person is a close family member.

The death of an employee is a difficult event for coworkers and management alike.  In addition to responding with care and compassion, employers must also address the obligation to pay all wages owed through the date of death.  Final pay generally includes earned wages earned up to the last day of employment, including any accrued and unused vacation hours. The central question is not whether the wages are owed, but who is legally entitled to receive them.

If the employee was married or had a registered domestic partner, California provides a streamlined process.  A surviving spouse or registered domestic partner may collect the deceased employee’s salary or other compensation, including accrued unused vacation, without opening a probate proceeding, if the required affidavit or declaration is provided to the employer.  The affidavit must include specific statements regarding the employee’s death, the claimant’s status, the absence of a California probate proceeding, and the claimant’s right to collect the wages.  Employers should also require reasonable proof of identity before releasing payment.

California law limits the amount of wages that may be paid directly to a surviving spouse or registered domestic partner.  For deaths occurring on or after April 1, 2025, the statutory net compensation limit for the spousal collection procedure described above is $20,875.  If the final wages exceed that amount, the employer will need to wait for formal estate documentation before releasing the funds.  Because the amount is adjusted every three years, employers should confirm the current limit before issuing payment.  Special rules may apply for certain public safety employees, so employers should evaluate those circumstances separately.

If the employee was not married and did not have a registered domestic partner, the answer depends on whether someone with authority over the estate comes forward.  If there is a will, trust, executor, or other authorized representative, the employer should follow proper written instructions and make payment consistent with the representative’s authority.  If no formal probate has been opened and the estate qualifies as a small estate, heirs may be able to use California’s small estate affidavit procedure.  For deaths on or after April 1, 2025, the relevant small estate threshold is $208,850, excluding real property.  At least 40 days must pass after the employee’s death before that affidavit process may be used.

If the estate is larger than the small estate threshold, or if there is a probate proceeding, the safer course is generally to make the final wages payable to the employee’s estate or to the authorized estate representative.  If no spouse, registered domestic partner, heir, executor, or other authorized person contacts the employer, the employer should not keep the funds indefinitely or guess at the proper recipient.  Instead, the employer should contact the Office of the Labor Commissioner for guidance regarding payment of the unclaimed wages for later disbursement to lawful beneficiaries.

Employers should document each step, obtain the required affidavits and proof of identity, and avoid issuing payment until the legal authority of the recipient is clear.  Because final pay for a deceased employee implicates wage payment rules, probate procedures, and family status issues, employers are encouraged to consult employment counsel before releasing the final check.

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DOL Issues Guidance on FMLA Leave When Travelling to Medical Appointments

by Fenton & Keller

August 5, 2026

The federal Family and Medical Leave Act (FMLA) has long allowed eligible employees to take leave to attend qualifying medical appointments. Earlier this year, the federal Department of Labor's (DOL) Wage and Hour Division issued an Opinion Letter confirming that employees may use FMLA leave for both the medical appointment and the time reasonably necessary to travel to and from that medical appointment.

The DOL Opinion Letter addressed a question about an employee requesting intermittent FMLA leave to attend medical appointments for their own serious health condition. The employee provided their employer with a medical certification which indicated that the medical appointments would occur once per month and last for 45 minutes.

The medical certification lacked any indication about the amount of travel time required to attend the medical appointments, but the employee told their employer that they needed one hour to travel to or from their medical appointments.

The DOL concluded that this travel time would also qualify for FMLA leave.

Generally speaking, the FMLA provides eligible employees with up to 12 work weeks of unpaid, job-protected leave in a 12-month period for the employee's own serious health condition or to care for a qualifying family member, such as a parent, child, or spouse, with a serious health condition.

A "serious health condition" is an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider.

The FMLA provides job-protected leave for medical appointments, such as those related to the diagnosis, monitoring, addressing, or treating of an employee's or their qualifying family member's serious health condition.

In its Opinion Letter, the DOL reasoned that since FMLA-qualifying medical treatment often cannot occur without travel to the medical provider's location, such travel must therefore be considered "part and parcel" of that medical treatment. Accordingly, the DOL concluded that such travel time would also be designated as FMLA leave.

The DOL Opinion Letter provided an example where the employee's 30 minutes of travel time to a medical appointment, and the time at the medical appointment, during the employee's scheduled workday qualified as FMLA leave.

Not only does this example illustrate the topic of travel time, but it also serves as a reminder to employers that even though the total amount of FMLA leave is stated in workweeks, employers should not forget that FMLA leave can be taken in smaller increments.

Employers should have procedures in place for providing and tracking an employee's use of FMLA leave, even leave taken in smaller time increments.

In the initial question presented to the DOL, the medical certification lacked any mention of travel time.

The DOL explained that a medical certification need not explicitly indicate the amount of travel time since the FMLA does not require a health care provider to furnish such information. Employers should not deny FMLA leave requests, or leave for the eligible travel time, just because the travel time is not explicitly indicated on a medical certification.

The DOL also provided helpful guidance for minimizing the potential misuse of FMLA leave for unrelated travel time. The Opinion Letter indicated that only the portion of the employee's absence which is attributable to the qualifying medical treatment and the associated travel would be covered FMLA leave.

The DOL stated that FMLA-protected leave for travel time does not include travel to or from, or stops for, activities unrelated to obtaining medical care and treatment. The Opinion Letter provided a hypothetical example of a parent ineligible for FMLA leave for the travel time to accompany their child, who has a chronic serous health condition but does not need care, during a school band trip since that leave is unrelated to the child's serious health condition.

While opinion letters do not carry precedential weight like statutes or regulations, they nevertheless may be a helpful resource for HR professionals and employers.

The Family and Medical Leave Act provides job-protected leave for medical appointments, such as those related to the diagnosis, monitoring, addressing, or treating of an employee's or their qualifying family member's serious health condition. Following this recent opinion letter, employers should consider evaluating their FMLA leave policies and procedures regarding travel to and from medical appointments. California employers should also keep in mind that the DOL Opinion Letter only addressed travel to medical appointments with respect to the federal FMLA, and made no mention of the California Family Rights Act ("CFRA").

While the federal FMLA and the CFRA both provide job-protected leave and are similar in many respects, they are also different in others. Employers should consult with their HR department and/or legal counsel should they have questions about providing employees with leave related to travel to qualifying medical appointments.

Bradley Levang is an attorney with the Fenton & Keller law firm. This article is intended to address topics of general interest and should not be construed as legal advice. For more information, please visit www.fentonkeller.com.

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School-Related Leaves as Summer Ends

by Alyssa C. Matsuhara

July 31, 2026

Question: With August approaching, many of my employees have children who go back to school soon.  What are my legal obligations as an employer if an employee wants to take time off to go to a school-related activity for their child?

Answer: Employer obligations with respect to school-related leaves depend on the size of the company and the reason for the employee’s request.

In California, employers who employ 25 or more employees at the same location must allow eligible employees to take up to 40 hours of unpaid leave each year to participate in certain school or child care activities.

An employee is eligible for school or child-care activities if he or she is a parent, guardian, stepparent, foster parent, grandparent, or person who stands in place of a parent, to a child or children of kindergarten age or grades 1 to 12.  If both parents are employed by the same employer at the same location, only the parent who first gave notice to the employer is entitled to take leave, but the other parent may also take leave with the employer’s approval.

Covered Activities

School-related activities include finding, enrolling, or reenrolling the child in a school or with a licensed child care provider or participating in activities of the school or licensed child care provider.  An employee may also take leave to address a child care provider or school emergency.  An “emergency” means that the employee’s child cannot remain in a school or with a child care provider due to any of the following: the school or child care provider has requested that the child be picked up or has an attendance policy that prohibits the child from attending or requires that the child be picked up; behavioral or discipline problems; unexpected closure or unavailability of the school or child care provider; or a natural disaster such as a fire, earthquake, or flood.

Notice Required

For planned absences, such as participating in school activities, employees must provide the employer with reasonable notice prior to the absence.  Time off for planned absences must not exceed eight hours in any calendar month.

For absences related to a school emergency, employees must give notice as soon as possible, and the eight-hour limit for planned absences does not apply to school emergency situations.

Employees, if requested by the employer, must provide documentation from the school or child care provider as proof that the employee engaged in child-related activities.  The documentation should be whatever written verification the school or child care provider deems appropriate and reasonable and must include the specific date and time of the activity.

Employees may use existing vacation, personal leave, or paid time off to participate in school-related leave unless otherwise provided by a collective bargaining agreement.  However, the employee may also use unpaid time off for these absences.

Other Leaves Related to Disciplinary Action

In addition to allowing leave for school-related activities and emergencies, all employers—regardless of size—may need to provide unpaid time off to employees who need to attend a child’s suspension or expulsion meeting or to comply with a school’s suspension or expulsion requirements.  Employees who take leave for these reasons must give their employer reasonable notice for the absence.  Time off for this leave can be paid or unpaid.

Employers should contact their labor counsel if they have questions about leaves of absence related to school activities and appearances.

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Reminders For Vacation Policies

by Fenton & Keller

July 17, 2026

Question: I started a new business and have many questions about vacation for employees.  Is this required?  Can I implement a “use it or lose it” policy?  Can I control and limit the employees’ vacation and policy structure?  Can I advance vacation hours to employees? Can employees share vacation?

Answer:

Vacation Benefits Are Not Required

In California, employers are not required to provide paid or unpaid vacation benefits. However, if an employer chooses to voluntarily offer these benefits, the employer must follow strict rules on how a vacation policy may be structured and implemented.  For example, employers cannot adopt “use it or lose it” policies, cannot impose an unreasonable “cap” on vacation accrual, and must pay out any accrued and unused vacation hours upon separation of employment.  These restrictions and some general information regarding vacation policies are summarized below.

“Use it or Lose it” Policy

The California Supreme Court in Suastez v. Plastic Dress–Up Co. (1982) 31 Cal.3d 774, held that vacation pay is a type of wage or deferred compensation for services performed that vests throughout the course of employment.  This means that accrued vacation hours are “wages” that cannot be forfeited if they are not used.  Accordingly, a policy that provides for the forfeiture of vacation pay that is not used by a specified date (“use it or lose it”) is an illegal policy under California law and will not be recognized by the Labor Commissioner.  However, as discussed below, the employer may reasonably limit and control the vacation policy’s structure and benefits before they vest.

Employer’s Right to Structure Vacation Policy and Control Before Benefit Vests

Although employers cannot require forfeiture of already vested vacation, employers still have broad discretion to control the mechanics of their vacation policies. Courts have recognized that employers may impose reasonable accrual caps, require waiting periods before vacation begins to accrue, and limit and control the vacation scheduling at a particular time and amount. For example, an employer may choose to implement a reasonable cap such as two times the annual accrual.  This prevents an employee from saving up and accruing an indefinite amount of vacation.  An employer may also choose to prevent employees from taking vacations during certain busy months.  Moreover, an employer may provide different vacation accruals to different categories of employees.  For example, an employer may provide more vacation to long-term employees and less vacation to newer employees or seasonal employees.  These are permissible and critical tools to help small businesses limit their vacation policy liability.

Advance on Unearned Vacation

Employers may choose to advance vacation hours to employees before it has been earned. However, this practice may create risk because vacation pay vests only as labor is performed.  If employment terminates before the employee earns sufficient vacation to offset the advance, recovering the unearned balance may conflict with California wage protections that prevent employers from deducting amounts from an employee’s final paycheck.  Employers who choose to implement a policy that allows a vacation advance should ensure that all aspects of the policy comply with applicable wage and hour laws.

Share Vacation to Others

California law does not expressly authorize the sharing or donating of vested vacation time. Because accrued vacation is treated as wages, any leave-sharing program must be carefully structured to avoid violating wage assignment restrictions and strict requirements for IRS special tax treatment. As a result, implementing vacation-sharing programs could create complex legal and compliance issues, including administrative burdens, privacy concerns, potential discrimination claims, and cash flow implications.

Employers who wish to provide vacation benefits to employees should contact their HR consultant or labor counsel to ensure the policy’s terms and implementation comply with these rules.

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