©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 313 434 Paton did suggest, however, that an employer can help ensure a leave’s sabbatical status by specifying that the leave is for a special employer purpose: the court would “have little trouble concluding” that a leave program is a sabbatical if the leave “is granted for a specified sabbatical project (other than rest and recreation).” Id. at 1521. 435 Id. 436 The Court of Appeal explained that the overall critical inquiry was the true purpose of the program, and that it was not necessarily dispositive that employees were expected to return from leave, that the leave exceeded “normal” vacation, that the leave was offered only every five or seven years, that the leave was designed to be competitive with other companies, and that other employees assumed the absent employee’s duties during the leave. Id. at 1523-24. 437 Id. at 1522. 438 See, e.g., California Hosp. Ass’n v. Henning, 770 F.2d 856, modified, 783 F.2d 946 (9th Cir. 1985); Milan v. Rest. Enter. Grp., Inc., 14 Cal. App. 4th 477 (1993). See also Bell v. H.F. Cox, Inc., 209 Cal. App. 4th 62, 73 (2012) (reversing summary judgment against claim of unlawfully denied termination vacation pay; employer could not win on defense of ERISA preemption on its motion for summary judgment, because plaintiffs raised triable issue of fact that the vacation benefits plan was funded from employer’s general assets and not—as ERISA would require—from a separate trust). 439 Church v. Jamison, 143 Cal. App. 4th 1568 (2006). 440 Lab. Code § 227.3. 441 Bell v. H.F. Cox, Inc., 209 Cal. App. 4th 62, 75 (2012) (affirming summary judgment for the employer: Section 227.3 applies only to termination payout, and does NOT require that vacation be paid at the employee’s regular rate of pay during employment; “Neither Labor Code section 227.3 nor any other authority cited by plaintiffs supports the proposition that, apart from the situation where an employee is terminated with unused vacation time, a vacation benefits policy must provide for payment of vacation time at an employee’s regular rate of pay.”). 442 McPherson v. EF Intercultural Found., Inc., 47 Cal. App. 5th 243, 265 (2020). 443 Id. at 268-60. 444 Reynolds v. Bement, 36 Cal. 4th 1075 (2005), abrogated by Martinez v. Coombs, 49 Cal. 4th 35, 50 n.12 (2010), to the extent Reynolds limited definition of “employer” to the common law definition. 445 Id. at 1087-88, 1090. See also Bradstreet v. Wong, 161 Cal. App. 4th 1440 (2008) (where now-bankrupt corporations failed to pay earned wages, the corporate shareholders, officers, and managing agents are not personally liable for unpaid wages absent any indication that they were corporate alter egos; absent finding that employees performed labor for individuals rather than for the benefit of corporate employers, or that corporate agents appropriated corporate funds that otherwise would have paid wages, an order requiring those individuals to pay wages would not be “restitutionary,” as it would not replace any money or property that individuals took directly from employees). Bradstreet was abrogated by Martinez v. Coombs, 49 Cal. 4th 35, 50 n.12 (2010), to the extent Bradstreet followed Reynolds v. Bement as to the definition of “employer.” 446 A later Court of Appeal case, Jones v. Gregory, 137 Cal. App. 4th 798 (2006), strongly questioned the proposition that the Labor Commissioner has any more authority than a private litigant does to pursue a claim for unpaid wages against individuals in addition to the traditional employer. Id. at 805-08. This decision was abrogated by the California Supreme Court in Martinez v. Coombs, 39 Cal. 4th 35, 50 n.12 (2010), and it was disapproved of on other grounds by ZB, N.A. v. Superior Court, 8 Cal. 5th 175 (2019). 447 Reynolds, 36 Cal. 4th at 1088-89. 448 Turman v. Superior Court (Koji’s Japan Inc.), 17 Cal. App. 5th 969, 986 (2017). The Court of Appeal also suggested that California’s definition of employer under the Wage Order can be as broad as the FLSA’s definition, for purposes of imposing personal liability. Id. at 987 (there are “similar factors applicable to determining federal joint employer liability, notwithstanding the separate definitions of the term employer under state and federal law”). Meanwhile, the trial court also “failed to address whether Parent might be a joint employer under the definitions of the term ‘employer’ applicable to plaintiffs’ claims under the unfair competition law, the tip misappropriation statute, and PAGA.” Id. at 974. 449 Id. at 980-81. 450 See Lab. Code §§ 98, 558.1. 451 Lab. Code § 558.1(b). 452 Atempa v Pedrazzani, 27 Cal. App. 5th 809, 820 (2018). 453 Usher v. White, 64 Cal. App. 5th 883, 896-97 (2021). 454 Seviour-Iloff v. LaPaille, 80 Cal. App. 5th 427, 446 (2022). 455 Id. 456 Id. 457 Voris v. Lampert, 7 Cal. 5th 1141, 1156-58 (2019) (affirming judgment on pleadings to part-owner; “We see no sufficient justification for layering tort liability on top of the extensive existing remedies demanding that this sort of error promptly be fixed.”). 458 Kao v. Holiday, 58 Cal. App. 5th 199 (2020) (affirming award of unpaid wages, attorney fees, and costs against company and individual owners, jointly and severally, under alter ego doctrine). 459 Id. at 205 (internal citation omitted). 460 Id. (internal citation omitted).
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