Retail Employment Law Blog : U.S. Lawyers & Attorneys for Labor Law

By Randall J. Hakes

For the first time, a California appellate court has addressed when paid leave offered as a sabbatical is considered “paid vacation.” The distinction is important because, under California law, employers must pay separating employees accrued but unused vacation time, whereas employers need not pay separating employees for accrued but unused sabbatical leave time.

In Paton v. Advanced Micro Devices, Inc. No. H034618 (6^th App. Dist., Aug. 5, 2011), the appellate court emphasized that a sabbatical is more than additional vacation time.  To qualify as a sabbatical, the paid leave must be “intended to retain the most experienced or valued employees or to enhance their future service to the employer.” Altering the Labor Commissioner’s test for a sabbatical, Paton found four factors distinguish a sabbatical from regular paid vacation:

1.      A sabbatical is granted infrequently (noting that once every seven years is the traditional frequency);

2.      The length of the leave is sufficient to achieve the purpose of the sabbatical—and when no conditions are set regarding how an employee spends his or her sabbatical, the length of leave should also be longer than that normally offered as vacation;

3.      A sabbatical is granted in addition to regular vacation; and

4.      The sabbatical program incorporates a feature that demonstrates the employee is expected to return to work after the leave is over.

Paton makes clear that employers must carefully consider whether sabbatical programs meet the new test. Any employer with a sabbatical program should document the purpose(s)/goals of the program and administer the program consistent with the identified purposes, noting that sabbaticals with no conditions on how the employee uses the leave (similar in nature to vacations) must meet additional standards. While general guidance can be gleaned from the specific facts in Paton, the court noted that the validity of each sabbatical program “will have to be decided on its own facts.” Thus, employers should carefully review all of the circumstances associated with their particular sabbatical programs to ensure they are true sabbaticals.

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By Julia M. Ebert

A federal court has held that Cal. Labor Code section 2802 does not require employers to reimburse employees for internet and phone expenses when employees voluntarily telecommute. Novak v. The Boeing Company, Case No. 09-01011-CJC-(ANx) (C.D. Cal. July 20, 2011). In Novak, Boeing supplied physical workspaces with computers, phones, and necessary equipment at its offices, and employees were not required to work from home.  The plaintiff employee, however, applied for and received permission to participate in Boeing’s virtual worker program. Boeing initially reimbursed virtual workers for phone and internet expenses, but later changed its reimbursement policy and ceased paying for such expenses. An employee sued for reimbursement under section 2802, and the court granted summary judgment to Boeing.

Section 2802 requires employers to reimburse employees for “necessary expenditures or losses incurred by the employee in direct consequences of the discharge of his or her duties.” The court reasoned that, because the employee was telecommuting voluntary, his telecommuting expenses were not “necessary” to the discharge of his duties. Under Novak, a telecommuting program is voluntary, and therefore an employer need not reimburse employees’ expenses in connection with the program, where employees: (1) apply to work from home, (2) receive employer approval, (3) choose to work from home, and (4) as a result, could potentially incur phone and internet expenses, which the employer would pay for if the employee worked at the employer’s offices.

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