Gladys Rodriguez-Morales

Amendment to the Hidden Fees Law

Question:  I own a small, local restaurant.  I recently heard that my business is now excluded from California’s “Hidden Fees Law” which required me to eliminate service charges or automatic gratuities and instead include the charge in the price of the goods and services.  Is this true?

Answer: The short answer is yes, but the exception has a caveat.  To understand the recent change, a brief overview of the original law is helpful.

In October 2023, Governor Newsome signed Senate Bill 478, which is commonly referred to as the “Hidden Fees Law.”  This law went into effect July 1, 2024.  In general, the law prohibits most businesses from advertising or listing a price for a good or service that does not include all fees or charges, other than certain government taxes and shipping costs.  Before the law was passed, many assumed that it would not apply to the hospitality industry.  However, after it passed, the Attorney General for California issued guidance that stated the law applied to the hospitality industry.  Therefore, businesses like restaurants would be prohibited from continuing the practice of adding a 15 to 20% service charge or automatic gratuity to the bill even when the guest was notified of the automatic service charge on the menu (e.g., “18% gratuity added to all guest checks”).  Instead, restaurants who wanted to continue to charge an automatic gratuity needed to include the charge to the price of the food or drink item so that the price that is shown on the menu is the total price that the guest is expected to pay.

The California lawmakers disagreed with the Attorney General’s guidance.  Before the Hidden Fees Law went into effect, Governor Newson signed another law (Senate Bill 1524), which amended the law to exclude restaurants, bars, and other select food vendors, so long as the mandatory fee charged is “clearly and conspicuously” displayed wherever prices are shown.   This is the caveat.

The amendment (as with the rest of the Hidden Fees Law) became effective on July 1, 2024.  Under the law, “clearly and conspicuously” means there is an explanation of the purpose for the mandatory fee/charge, and that it written on any advertisement, menu, or other display that contains the price of the food or beverage item.  And there is another caveat.  On July 1, 2025, the definition of “clearly and conspicuously”  will change.  “Clearly and conspicuously” will mean that any disclosure, advertisement, or notice must have text as defined by Civil Code section 1971(u), as follows:

            [A] larger type than the surrounding text, or in a contrasting  type, font, or color to the surrounding text of the same size, or set off from the surrounding text of the same size by symbols or other marks, in a manner that clearly calls attention to the language.  For an audio disclosure, “clear and conspicuous” and “clearly and conspicuously” means in a volume and cadence sufficient to be readily audible and understandable.

Therefore, although restaurants are now excluded from the Hidden Fees Law, restaurants should review their menus, advertisements and any display that lists their food and beverage prices to ensure compliance with the clear and conscious requirement.  Restaurants should also consider implementing now the required text that will be required in July of next year.

by Gladys Rodriguez-Morales

Employing Minors During the Summer?

Question: A few teenagers have come to my business looking for a summer job.  What should I consider when hiring a teenager for the summer?

Answer: Before you hire a minor, there are certain requirements you must follow to ensure the employment of the minor complies with various child labor laws.  In general, the child labor laws apply to employment of individuals under the age of 18 years old who are required to attend school.  Below are some of the main requirements employers should be aware of when employing a minor.

Work Permit

Except under limited circumstances, all minors must obtain a work permit before they can legally work.  If the minor is a high school graduate or has a certificate of proficiency, that is one of the circumstances in which the minor does not require a work permit.  During the summer, the work permit is obtained by the minor from the minor’s school district.   Many employers wonder if they can employ minors visiting California for the summer from out of the state.  Employers can employ visiting minors as long as the minor obtains a work permit from the school district where the minor is living while visiting California.

Employers should keep in mind that summer work permits expire five days after the start of the new school year.  If an employer plans to employ a minor after the summer ends, the employer must ensure that the minor’s work permit is timely renewed.

Restrictions on Positions Held by Minors

Employers should also be aware there are restrictions on the types of positions minors can hold.  This usually depends on the employer’s industry and the minor’s age.  For example, a 17-year-old may not work in a position that requires the minor to sell or serve alcohol to guests.  Also, minors employed in  fast-food restaurants who are younger than 16-years-old may not prepare food out of the plain sight of the customer.

Wages and Work Hours

Minors must be paid at least minimum wage and applicable overtime wages. Also, there are limits on the number of hours a minor can work. This usually depends on the minor’s age and whether or not school is in session.  In general, when school is not in session, 12 through 15-year-olds may work eight hour shifts and forty hours per workweek, and the shift can end as late as 9:00 p.m.  Minors that are 16 or 17 years old can work eight hour shifts and forty-eight hours per workweek, and the shift can end as late as 12:30 a.m. when the shift precedes a non-school day.  When school starts, the number of hours 14 through 17-year-olds can work on or before a school day is limited, and 12- and 13-year-olds may only work during school holidays and weekends.

Reporting Child Abuse or Neglect

Employers should also be aware that employing minors may subject the employer to California’s mandated reporter law.  Under California’s mandated reporter law, certain individuals are required to report any known or reasonably suspected child abuse or neglect to law enforcement or the county welfare department.  If a business employs a minor and has five or more employees total, then its human resource professionals and supervisors are considered “mandated reporters” for purposes of the state reporting law.

For more information regarding compliance with child labor laws visit https://www.dir.ca.gov/dlse/DLSE-CL.htm and https://www.dir.ca.gov/dlse/ChildLaborLawPamphlet.pdf.

by Gladys Rodriguez-Morales

Reproductive Loss Leave

Question: I recently learned there is a new type of leave employees may take concerning reproductive loss. Is this true?

Answer: Yes. In October 2023, Senate Bill (SB) 848 was signed by Governor Newsom, which created a new leave for employees who experience a reproductive loss. Effective January 1, 2024, SB 848, codified in California Government Code section 12945.6, requires employers who employ five or more persons to provide up to five days of protected leave following a reproductive loss event for any of the following losses: (1) failed adoption, (2) failed surrogacy, (3) miscarriage, (4) stillbirth, or (5) unsuccessful assisted reproduction. The reproductive loss leave is distinct from bereavement leave and other leaves available under state and federal law. As such employers need to review and update their leave policies and be aware of the following concerning reproductive loss leave: 

1. Entitlement to and Duration of Reproductive Loss Leave.

Employees who have been employed by their employer for at least 30 days prior to the commencement of the leave are entitled to take reproductive loss leave. Employees are entitled to take up to five days following the loss. Employees cannot be required to take the five days consecutively, but the leave must be completed within three months of the reproductive loss. Employees can take up to five days for each qualifying reproductive loss, but employers are not required to provide more than 20 days of reproductive loss leave within a 12-month period.

Employees entitled to reproductive loss leave include employees who would have been the parent of (1) the adoptee had the adoption been completed, (2) the child born as a result of surrogacy, a natural or assisted pregnancy (i.e., intrauterine insemination or embryo transfer), or (3) a pregnancy that ended in stillbirth.

2. Overlapping Leave Rights.

Reproductive loss leave is a separate and distinct leave provided to eligible employees in addition to other leaves like Bereavement Leave, Pregnancy Disability Leave and Family Medical Leave. For example, an employee may be taking leave for the employee’s own medical condition or the condition of a family member under the California Family Rights Act (CFRA) or the Family and Medical Leave Act (FMLA) either before or after a reproductive loss event. An employee who experiences a reproductive loss would be eligible for an additional five days of reproductive loss leave within three months of the end of the employee’s CFRA or FMLA leave.

3. The Reproductive Loss Leave May be Paid or Unpaid.

Employers are not obligated to pay employees for reproductive loss leave. However, employers need to permit employees to use any accrued and available sick leave, vacation time, personal time off, or any other paid time off that the employer offers. Employers who have an existing reproductive leave policy but offer less than five days of leave should update their policy to indicate that employees are entitled to five days.

4. Confidentiality and Documentation.

Employers must maintain confidentiality of the identity of an employee requesting reproductive loss leave and all information provided by the employee, except to internal personnel as necessary for business purposes. Although the law is silent regarding an employer’s ability to request documentation from the employee regarding their need for the leave, it is recommended that employers not ask for documentation concerning the reproductive loss. If the employee provides documentation, it must be maintained confidentially.

by Gladys Rodriguez-Morales

New Required Notice and Expansion of California Paid Sick Leave

Question:  I recently learned I must increase the amount of paid sick leave I’m providing to my employees. Is this true?

Answer:  Yes. In October 2023, Senate Bill (SB) 616 was signed by Governor Newsom, amending the Healthy Workplaces, Healthy Families Act of 2014. Effective January 1, 2024, SB 616 increases the amount of paid sick leave employers must provide to most employees from three days (24 hours) to five days (40 hours) per year. Employers need to review and update their paid sick leave policies, provide a “Notice to Employee” form to their employees, and be aware of the following: 

1. Entitlement to Paid Sick Leave

Employees who work at least 30 days for the same employer within a year in California (with limited exceptions) are entitled to paid sick leave. Employees are entitled to five days or 40 hours of paid sick leave per year, whichever is greater. If an employee works 10hour days, the employee will be entitled to 50 hours of paid sick leave. Employers must provide the paid sick leave required by a local ordinance if it is higher than the requirements of state law.

2. Two Methods for Providing Paid Sick Leave

Employers can provide the required paid sick leave one of two ways:

1. The lump sum method, providing all employees five days (40 hours) of paid sick leave available for the employees’ immediate use on January 1, 2024. Under the lump sum method, unused sick leave does not carry over from one year to the next. If an employee does not use all sick leave in the calendar year, the employee’s sick leave balance will be forfeited on December 31 and the employee will receive 5 days (40 hours) on January 1; or
2. The accrual method, which allows employees to earn one hour of paid sick leave for every 30 hours worked. Under the accrual method, employers can limit employees’ use of sick leave to 5 days (40 hours) per year, and accrued sick leave will carry over to the next year, up to a cap of 10 days (80 hours) paid sick leave. Employers must adjust the use and accrual caps effective January 1, 2024.

3. Use of Paid Sick Leave

Employees may use paid sick leave starting on their 90th day of employment for the care, treatment or diagnosis of the employee, the employee’s child, parent, spouse, registered domestic partner, grandparent, grandchild, sibling, a designated person, or for use by the employee who is a victim of domestic violence, sexual assault, or stalking.

4. Employee Notice and Employer Posting Requirements

Employers must provide each employee affected by the paid sick leave increase with written notice of their sick leave rights. An updated English version of the “Notice to Employee” which includes information about paid sick leave and wage information is available through the Department of Industrial Relations (“DLSE”) at https://www.dir.ca.gov/dlse/lc_2810.5_notice.pdf. The DLSE has not issued an updated Spanish version. The Notice must be provided by January 8, 2024 unless the employer provides notice of the change in sick leave in a written policy or wage statement.

Employers are also required to display the Paid Sick Leave poster at each worksite in an area frequented by employees. The poster is available here:

https://www.dir.ca.gov/DLSE/Publications/Paid_Sick_Days_Poster_Template_(11_2014).pdf.

A sick leave fact sheet is available here: https://www.dir.ca.gov/dlse/California-Paid-Sick-Leave.html and updated FAQs are available at: https://www.dir.ca.gov/dlse/paid_sick_leave.htm

by Gladys Rodriguez-Morales

Sexual Harassment Prevention Training

Question: My business has only four part-time employees and one volunteer. I was told that as a small employer I am not required to provide sexual harassment training to my employees. Is this true?

Answer: No. Employers who have five or more employees are required to provide sexual harassment prevention training every two years. Part-time and full-time employees, volunteers, unpaid interns, and independent contractors are counted in calculating the five-employee threshold, and everyone is counted even if they work in separate locations, or do not work or reside in California. While everyone is counted, employers are only required to provide training to California employees. However, the best practice is to provide the training to everyone.

Some of the training requirements include:

1. Timing of Training Requirement

• Supervisorial employees must complete two hours of training every two years and non-supervisorial employees must complete one hour every two years.
• New supervisors must be trained within six months of becoming a supervisor.
• New employees must be trained within six months of their hire date. Employees who previously received training are not required to retake the training for a period of two years from the date of the employee’s last training if (1) the prior training was legally compliant; and (2) the employee reads and acknowledges receipt of the employer’s anti-harassment policy.
• Minors between fourteen and seventeen years old must be trained.
• Temporary and seasonal employees who work less than six months (but not less than 30 days or 100 hours) must be trained within 30 days of hire or 100 work hours, whichever occurs first. Migrant and seasonal agricultural workers have different training requirements.
• New businesses must provide training within six months of their establishment.

2. Record Keeping Requirement

Employers must keep documentation concerning the training for at least two years, including the (1) date of training; (2) type of training given; (3) copy of written/recorded training materials; (4) name of the trainer; (5) names of employees who received the training; and (6) a copy of the certificates of training completion or attendance.

3. Effective Interactive Training Required

The training must be interactive and involve employee participation. The training can be conducted in an in-person group classroom setting, individually online, or in a combination format as long as it is effective interactive training.

Among other requirements, the training must cover federal and state law concerning the prevention, prohibition, and correction of sexual harassment, the available remedies, and information about preventing harassment and abusive conduct based on gender identity, gender expression, and sexual orientation.

4. Qualified Trainer Required

An individual with knowledge, expertise, training, and experience in the prevention of harassment, discrimination, and retaliation must present the training. Qualified trainers include an attorney licensed in California with at least two years of experience practicing employment law and a human resources professional who is experienced in harassment training, investigation, and employer advisement for at least two years.

5. Posting Requirement

Employers are required to display either a Sexual Harassment poster or fact sheet at each worksite, in an area frequented by employees. When more than 10 percent of the workforce speaks a language other than English, the posting must also be displayed in the other language(s). The poster and fact sheet in several languages are available at https://calcivilrights.ca.gov/posters/.

by Gladys Rodriguez-Morales

School Related Leave

Question: August is here which means students are going back to school. As an employer, what are my legal obligations if an employee requests time off to go to their child’s school?

Answer:  In California employers must allow unpaid time off to eligible employees for school related purposes as follows:

1. School Suspension

An employee who is the parent or guardian of a child who has been suspended can take unpaid time off when the school requires the employee to attend a portion of a school day in the suspended child’s classroom.  The employee must give their employer reasonable notice of the need to take time off for this purpose.

2. School Related Activities

This second school related leave only applies to employers who have 25 or more employees at the same location.  Eligible employees (parents, guardians, stepparents, foster parents, grandparents, or a person who stands in place of the child’s parent) can take up to 40 hours of unpaid leave each year to find or enroll a child in a school (K-12) or a licensed childcare provider, to participate in school (or childcare provider) related activities (time off for these purposes cannot exceed eight hours in a calendar month), or for any of the following reasons:

• Behavioral or discipline problems;
• Closure or unexpected unavailability of the school or childcare provider, excluding planned holidays;
• A natural disaster; or
• The school or childcare provider has requested the child be picked up, or has an attendance policy that prohibits the child from attending, or requires the child to be picked up.

The employee must provide the employer with reasonable notice before the planned absence. If time off is needed for any of the above-listed emergency situations, employees are required to give notice as soon as possible.

An employer may request the employee to provide documentation from the school or childcare provider as proof that the employee participated on a specific date and at a particular time in the permitted activity.

3. Emergency Condition

A new law effective January 1, 2023 prevents employers from taking adverse action or threatening to take adverse action against an employee who leaves work or refuses to report to work during an “emergency condition,” which includes an order to evacuate the school of the employee’s child due to a natural disaster (excluding a health pandemic), or a criminal act.  There are several categories of employees who are excluded from this new law, including first responders, disaster/emergency service workers, and health care workers providing direct patient care/emergency support services, among others.

When feasible, an employer is required to be notified by the employee of the emergency condition requiring their absence. If notice is not feasible, the employee is required to provide notice as soon as possible.

Employees cannot be discharged, demoted, suspended, or retaliated against for taking school related time off, or for being absent from work due to an “emergency condition” at the employee’s child’s school.  Therefore, employers should make sure their Human Resources personnel, managers and supervisors are aware of the available school related leaves and ensure employees are adequately trained to recognize that an employee’s request for time off may be subject to the employee’s legal right to take the time off.

by Gladys Rodriguez-Morales