Big Blend Radio

Attorney Ward Heinrichs - Summer and Minimum Wage

This episode of Big Blend Radio's California Employment Law podcast with San Diego attorney Ward Heinrichs focuses on paid vacation time and minimum wage. Read his article outlining the laws, here: https://blendradioandtv.com/listing/summer-fun-and-minimum-wage/

Based in San Diego, California, Ward represents both employers and employees in almost all areas of labor law. More: https://bestemploymentattorneysandiego.com/

Ward Heinrichs appears on Big Blend Radio very 4th Wednesday. Follow his podcast appearences here: https://www.youtube.com/playlist?list=PLzIUCV2e7qm3jXMGjBdJrHc4zxpoWFP5O

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Duration:: 23m
Broadcast on:: 26 Jun 2024
Audio Format:: mp3

Welcome to Big Blend Radio's California Employment Law Podcast featuring San Diego Attorney Ward Heinrichs. Hey, everybody. Oh, welcome. You know, summer is here. So happy summer ward. Is it nice and warm and toasty in San Diego? Yes. Recently, the temperatures went up. The sky is clearing, you know, about June gloom and May gray. May was really gray and chilly. Uh, but just recently we got, I guess they got these high impression systems that are close by and they're, uh, heating up the desert dramatically. And even on the coast, it's getting warmer, but it's still nice, super nice. Well, it's always nice in San Diego. Come on, you know, you get once in a while, you get rain and everybody looks at it. Goes like, what the heck is that, man? Like what is that stuff falling from the sky? But, um, you know, excited about today because we're going to talk about summer fun, we're going to talk about minimum wage again, but it's actually really important and everyone linked to words article is in the episode notes. So check that out and you can also go to his website, bestemploymentattorneysandiego.com. See, it's like imprinted in my brain. It is. You like that. It is. It is. I was like, I almost like if someone says, Oh, do you know an attorney in San Diego? I'm like, yes. Best. I don't know his name. I just know his website now I'm kidding, but, um, but some are fun because this is when everyone's like, Oh man, I want to take a vacation and, um, um, so you get into a little bit of like, what is paid vacation versus leave, right? Those are two different things. Yes. Yes, it is. Um, pay vacation and sometimes called PTO paid time off. Um, and PTO has different manifestations. Sometimes it's just vacation. Sometimes they combine, um, other types of leave, like sick leave with it. And I usually advise my clients who are businesses not to do that because you don't have to pay out sick leave when someone leaves employment, you know, whether they're terminated or where they quit. Um, so I think it's better not to do that, but some, some still do. It's just they're the way they run it. So that's fine. But bottom line is paid vacation PTO. They're pretty similar, almost always about the same. And that's where you're allowed to take time off, go on a vacation and get paid for it. Okay. Get paid for it. But then what about leave is when, um, that's like kind of a mandatory thing for employees across the country or no, or in California. There was sticking to California. Yeah. And I'm sure that there are leave, uh, statutes in almost every state and the one that's been growing over the years is the sick leave, sick leave statutes. Uh, California started its sick leave statutes on 2016 and other states have, uh, started doing that as well, passing laws that mandated sick leave that's paid. So if you're, you know, hey, I just can't make it in, you know, under those circumstances, the employer pays you for the day. And that's that's mandatory. That's in, that's a law that's been passed by the legislature in California. In other states, obviously, um, but there is no law that requires paid vacation. At least vacation is separate. Then so leave it, that is a law. That is a law. And there are other leaves, bereavement leave, but that's unpaid. So there's a bunch of different types of leaves. Most of them are unpaid, uh, but there are some that are. And typically that's what it is. So when it comes to vacation, PTO, not BTO as a boxer overdrive, I see, I'm like in summer mode now. Um, I don't do people still remember who they are. I hope so. Oh, I love taking care of business, right? Take this job and shove it. Oh, yeah, business every way. Yes, see, but except for vacation time, but vacation is something you negotiate, right? When you go into a new position. Well, maybe, maybe not. Um, so I would say that there are, there are many employers that are smaller that don't offer pay vacation and, and they say they probably don't even have a vacation policy at all. So you may go in and say, Hey, look, you know, I need to take some time off. Now, and again, um, I'm planning on taking a week or two every year, you know, whatever it is. And I think those circumstances, you could probably negotiate something. No, I will not pay because they're not paying vacation, but just to get some time off when you, when the company has a policy to have paid vacation. So when you're on your vacation, you get your regular wages. Um, that usually is part of a very stylized and particular policy that's often in the handbook. And it says, well, if you've been here for one or two years, you get a week. If you've been here for five years, you get two weeks. If you've been here for 10 years, and so usually it's pretty particularly written up as to what you get and when you get it. Okay. And that's paid. That's paid. Yes. Okay. So that's according to whatever the relationship is of your contract, basically with, with your employer. What happens if they don't, what if they don't give it to you? If they go, now is that when they, when employees come knocking on your door and they, and they're supposed to get leave and or vacation paid vacation and it's part of the policy and contract and the employer goes, sorry, not this year. I can't afford to pay you, um, your vacation, even though we said we would. Well, that's a good question because, uh, the employer does have the right to deny you your specific vacation dates. And I, yeah, they, they can say, Hey, look, we're just too busy. Oh, okay. And normally you can go, that, that part is negotiating. When you take it, um, normally, um, you work something out on a year by your basis. But some people, I've had many clients come in and say, I've never taken vacation. You know, I scratch your head and go, Oh my gosh. Um, maybe you love your work that much, but, um, then it builds up. Mm hmm. Now there's different laws about this. Uh, it can continue to build up and be open ended. So if you never take vacation, you get, you know, a month a year, all of a sudden, if you've worked 12 years, you've got a whole year's worth of vacation. And let's say you go, Hey, I need to leave. I'm quitting. Bye bye. The employer has to pay that out because it's an earned. It's an earned wage vacation is considered an earn wage. It's just delayed. The payment is just delayed. So employers need to basically set that money aside. If they're having financial troubles, do not dip into that. Well, yeah, I mean, often there isn't. All right, now we're getting those weeds on this one. Oh, you know, there are, there are certain types of programs that qualify at the federal level. And those you have to set, you have to fund as an employer. But if you don't do that kind, and that's a special kind, there's, it's called a viva trust. I'm not going to get involved that. Oh, wow, that's really special. Most times the normal vacation policies aren't required to be funded. But they're going to have to be paid. And so I think most employers don't have a special fund for it. They just do it as part of the operating costs. And it's as if you never laugh and they just pay you for never leaving. So it's part of payroll. So you don't have to save up for it. They can. And there are certain programs where they have to, but not most. OK, now what is this sabbatical thing? Cause one of my friends took a sabbatical and, you know, she just like, I'm going on sabbatical. And I'm like, well, how does that happen? And I've met a few people going on sabbatical and I'm always going. I always thought that was some spiritual thing or well, I don't know. It sounds like it. It's sabbatical. I don't know what this is. I'm like, what are you doing? Like, you know, Nancy, can I have a sabbatical? And she's like, no, you get back to work. So it's not working. She says you're on a permanent one. So what is that? Most employers don't offer sabbaticals. Now you see some coming out of Silicon Valley now. Cause, you know, they, many of those companies have a lot of money. And they allow that kind of thing for an upper echelon. They really started as far as I know, when I first heard about it, it started with professors. And they would get maybe a year off or something. And I honestly, I don't know whether those were paid or not. And sabbaticals don't have to be paid, but you could pay it. And that would be an agreement, probably in a written employment agreement that spells out the rights to sabbatical and whether they're paid or not, and things like that. So yes, they do exist mostly for, it used to be only for professors. That's where I first heard about it. And now you're right. I mean, too. Yeah. But it has grown outside of education. Because it was education. And it was so that if they were writing a book or something, too, it was kind of like a special, like you were still doing something in your career. Like there was some kind of something. But my one friend, I'm looking at her like, what? But she's like, I didn't take it. You know, she was coming to the end of her. She was retiring. And she had all this vacation banked up. She had sabbatical. She had all of this. And she's like, well, I'm going going for a month before I come back and then retire. She was just like taking it, taking it. And well, she was using it so that her employees she had hired would get used to her not being there. So she was kind of still training them that way, which is really nice for everybody. That's a smart and nice thing to do. But what about, OK, so you go on vacation. And this comes from Nancy because, you know, we go in the weeds with Nancy always. But you're in all these people are doing remote work. And maybe they go on vacation, but hey, honey, I've got to go take this meeting real quick. Now, see, she did do the weeds, didn't she? Well, that's a pretty good question. Nancy, good question. Yeah. All right. So you go on your vacation and let's say it's not paid. This is the bigger problem. Oh, and you bring files with you and you work while you're on vacation. And honestly, I do a little bit of that. It's really hard for me to shut totally down. And it's hard for me to turn down new clients. I usually do a little bit, but that's me. And I don't penalize myself. If I had an employee who was entitled to some vacation, then that employee, if they're taking, let's say it's unpaid vacation and they're taking files and they're doing some work, well, they're doing work. They're supposed to get paid. Yeah. And so there's this period of time where you're not paying them anything because it's unpaid vacation and they are actually working. So now you're starting to talk about wage and hour violations, unpaid minimum wage violation. They're not getting anything for that work unless you've worked something out in advance, but assuming you don't have it, they're not getting anything. So there's a minimum wage violation. There's a violation for not paying all wages owed. There's a violation for maybe meals period. I mean, it could just mushroom into something crazy. Wow. So that's the bigger problem. Now, if you're on paid vacation, you're already getting paid. And I haven't seen this, so I haven't researched it. But there are probably some minimal issues that you might be facing if they're getting paid anyway. But it's not the worst problem is unpaid vacation in the work. OK. Well, I had a friend too. She came across country and met us where we were and we hadn't seen her for two years. And we had like three hours to kind of catch up in over years, you know. So it's been, so we went, we were at a botanical garden. We're walking around and her colleagues kept calling her. What about this account? She's like, I left everything for you. Go look exactly. I gave you the, I gave you all this already. I prepared you. And they kept calling and eventually she told them exactly where to go. Very politely and said, I'm on vacation. I did my job. Now you go do yours. This, you know, that's it. You know, I might just never come back. And then a month later, she quit too. And well, she retired, but, but it was very, she got to a point. It was like every five minutes they were calling her. And she had already given it. And she's like, you see this file? Do you see where I typed this? And they're like, yes. And she says, is that not your answer? They're like, yes. So she's like, hello. And she was getting pissy, which I don't blame her. Well, you can hardly blame her. It's not that uncommon, because especially professionals or people who are higher up in the food chain on the company. Yeah, yeah, she was. They often take stuff with it. I mean, you know, you just really, it's hard to. To back off. Completely, because you don't want things left undone that are important. Yeah, you want things to keep going that really is. But I think honestly that most people just do it. And they think it's part of professionalism. And they're just not going to make any ways when they come back. So I think mostly it's just not never noticed. Where I have seen it is when someone is on unpaid big case, where they kept them. Now they're going, hey, wait a second, you're making me work. It's usually the boss calling is going else. I changed my number. Yeah, maybe change your number. You could block your boss. Oh, that's not a good. That's not now. What about minimum wage earners? Because I mean, California is minimum wage as we've covered for years with you. Every year goes up, up, up. It was like what over 16 bucks now, a, an hour for a minimum wage. The state, the state minimum wage is at 16. And I think San Diego six 30 now. Okay. So there are cities that are higher than that. And then you have the fast track, the fast food act or, you know, with, yeah, that's for fast recovery. Yeah. And so that is for fast food chains with over 60 venues, right? So now do all and they get over $20 an hour. Well, they get $20 an hour now because we've been through all the different machinations of this started out at 22. And that's the original legislation that the governor signed. But then the some of the fast food chains said, we don't like this. And they put something on the ballot to negate it. And then they negotiated this new law. That's, you know, very similar to the old one. But the minimum wage was reduced from 22 to 20. So that's what it is now for fast, those who qualify for fast recovery act. And that started April one. So $20 an hour for fast food chains. They have six year more throughout the country. And there are some exemptions, but we'll get it all those. They paid $20 an hour as of April one. So do they get paid vacation on top of that or leave or any of that? Well, they could, but most minimum wage jobs don't offer any paid vacation. So probably in most cases, it's going to be unpaid. Yeah, because I think summertime, especially if that's when people are on the road, they're traveling, San Diego is definitely where you are busy. Everyone's going to the beach and it's like, stop off and get, you know, an in and out burger. Just got to bring it up. So you mentioned in your article that restaurants are starting to kind of close up and move out of California. Yeah, it's been in the papers and some of the radio shows talk about it. There have been, and I'm not remembering the specifics of each one of those announcements, but there are some of the fast food chains who have closed locations in San Diego and throughout California. And some of the information that we get back from them is that, hey, you know, it's just gotten too hard to do business at this $20 an hour. That's a 25% increase over the. That's a big increase. It's pretty big. And they're just saying, you know, it's just not worth it. It's hard to make money here. So we're just not, we're going to cut back. That doesn't mean that they necessarily left, but they have shut locations. Oh, to go under the 60. No, probably not. I mean, gosh, I wish I remember the specific ones and I just. Yeah. But my impression was, or my impression is from hearing and reading some of it, was that they had plenty of places to still qualify for the 60. Oh, yeah. I think Wendy's shut some down. I think. Oh, wow. Yeah, there were some big places, big box places. So they still would qualify. They're just saying, hey, you know, these locations just aren't that profitable. Anyway, now they're just not. So wow. So that that's actually pulling jobs away. And then what happens to the mom and pop fast food places? And, you know, well, they don't they don't have to pay 20 because they don't have 60 or more. Okay, they pay the 60. Okay, you know, if they're in the city of San Diego, again, a little higher. What about food trucks? Like, you know, are they considered fast food? I suppose they are. I think they would be, but they're not going to have 60. So they're not going to. Yeah. Food trucks rock. A lot of their food is really good. Yeah, it's actually almost fresher and just like get it going and clean. And you have to you have to have your station so well done to be able to get it moving and moving fast that, you know, we've always said street food. I mean, street food in Africa was fine. You know, some people maybe not in Mexico too. You know, street food is great. People are like, I'm not eating street food. And I'm like, well, there's higher risk, but I've eaten street food. And I've never been sick from it. We used to have maize. They used to do maize on the grills in Africa like these. And it was like Milies, what is Milies, maize, maize. So it's not like sweet corn. Was the corn that the Aztecs used to grow? And I assume it still exists, but I don't know. It's good for you. Yeah, yeah, in Africa. And they make a millipap and ughali, which is like almost like polenta out of it. And that's what you eat as like a bread and a staple with stews and greens and stuff. Yeah, it's good. I put train smash on it. It's like heated up salsa. It's good. Now I'm like, wait, this is. Sounds great. And then you go to Louisiana and your fast food comes out of a gas station, but it's all man. Everything's fried. Po boys, you know, meat pies. Oh, crud, Dan. Oh, have you had Boudin? Oh, yeah. You mean the bakery? No, Boudin is like, no, Boudin is like sausage with rice in it. And sometimes they put like hogs and cheeses and stuff. Like they basically are using a little bit of everything. And it was like the French brought it in and creole seasoning. Sometimes they put shrimp in that, but it's got like a rice, because they grow rice in Louisiana. And then Boudin is like Southwest Louisiana specialty. And they have Boudin wars. Wow, I love the Southwest. Oh, Southwest Louisiana. Louisiana. I don't know why I'm going to Louisiana now, but anyway, you know, yeah, I don't think I said it's different everywhere. Yeah. Oh, yeah, well, but street food, you know, I've eaten street tacos and I've always thought they were delicious. But yeah, there are you hear stories, everyone's wild about people getting sick. So be careful. Take your chances. Well, good stuff. Keeping everyone informed and reminded of the minimum wage and also looking at their vacation because a lot of people are looking at going. And it's like one thing you said in your articles, if you are getting paid vacation, the PTO, you better do it in advance so that you don't have a disappointment. Well, right. If you want to go when you want to go, it's better to negotiate that part of advance. So where, you know, if you hit him at the last second, hit him or her and say, hey, I need to leave next week. Your chances of getting that time off is much less. Yeah, don't be working like, you know, in hospitality in San Diego and summer and say that I went out. You got to wait till, you know, the winter or something. You know what I mean? Because yeah, you don't go on high season, but you know, sometimes you could still negotiate that, right? Yeah, sure. You can. Negotiations are always fun. So looking forward to next weekend and next month war, we're going to be talking more about hot stuff. You never know, right? Heat, all kinds of good stuff. Brakes and. Oh, yes. Right. See hot stuff. Yes, keep on that summer thing. California. Yes. Yeah, you got to be careful. No overheating your employees. Yeah, don't, don't bake your employees. And no waking and baking either. All right. So everyone, best employment attorney, San Diego.com is the website to go. And the article again is linked in the show notes and is on blend radio and tv.com. Have fun, Ward. Thanks so much. I planned to have some fun. Good. Thank you do too. And everyone listening. Thank you for listening to Big Blend Radio's California Employment Law podcast with San Diego attorney, Ward Heinrichs. Keep up with Ward at best employment attorney San Diego.com or follow him on LinkedIn, Facebook and Twitter. You can also subscribe to Big Blend Radio at bigblendradio.com.