314 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com 433 Lu v. Hawaiian Gardens Casino, Inc., 50 Cal. 4th 592 (2010) (Labor Code § 351 does not provide a private right to sue, as violation of a statute does not necessarily create a private cause of action; instead, a right to sue must be conferred by Legislature in either statutory language as shown in legislative history). 434 Id. at 603-04 (“To the extent that an employee may be entitled to certain misappropriated gratuities, we see no apparent reason why other remedies, such as a common law action for conversion, may not be available.”). 435 O’Grady v. Merchant Exch. Prods., Inc., No. A148513 (Cal. Ct. App. Oct. 31, 2019) (reversing trial court’s sustainal of the defendant employer’s demurrer). 436 Id. at 780-81. 437 Lab. Code § 351. 438 Labor Code section 227.3 provides: “Unless otherwise provided by a collective bargaining agreement, whenever a contract of employment or employer policy provides for paid vacations, and an employee is terminated without having taken off his vested vacation time, all vested vacation shall be paid to him as wages at his final rate in accordance with such contract of employment or employer policy respecting eligibility or time served; provided, however, that an employment contract or employer policy shall not provide for forfeiture of vested vacation time upon termination. The Labor Commissioner or a designated representative, in the resolution of any dispute with regard to vested vacation time, shall apply the principles of equity and fairness.” 439 Suastez v. Plastic Dress-Up Co., 31 Cal. 3d 774 (1982). 440 Choate v. Celite Corp., 215 Cal. App. 4th 1460, 1462, 1467 (2013) (employer owed terminated employees vacation pay earned on a pro rata basis even though the CBA affirmatively addressed vacation payments upon termination, and limited vacation pay for terminated employees to the vacation allotment for the year of termination, because the CBA did not specifically “mention either the statutory protection being waived or, at a minimum, the statute itself”). 441 Suastez v. Plastic Dress-Up Co., 31 Cal. 3d 774 (1982). 442 Lab. Code § 227.3. 443 Mills v. Target Corp., 2023 WL 2363959 (9th Cir. Mar. 6, 2023).. 444 Henry v. Amrol, Inc., 222 Cal. App. 3d Supp. 1 (1990). 445 Boothby v. Atlas Mechanical, Inc., 6 Cal. App. 4th 1595 (1992). 446 The November 22, 2005, withdrawal of the offending opinion—DLSE Opinion Letter 1993.05.17, at 2 (“a worker must have at least nine months after the accrual of the vacation within which to take the vacation before a cap is effective”)—is noted at www.dir.ca.gov/dlse/OpinionLetters-Withdrawn.htm (visited May. 26, 2022). See also DLSE Enforcement Policies and Interpretations Manual § 15.1.4.1 (vacation policies providing “that all vacation must be taken in the year it is earned (or in a very limited period following the accrual period) are unfair and will not be enforced by the Division. (See the detailed discussions of these issues at O.L. 1991.01.07 and 1993.08.18).”). 447 California employers can impose a waiting period before any vacation pay begins to accrue. Minnick v. Auto. Creations, Inc., 13 Cal. App. 5th 1000, 1007-09 (2017) (upholding dismissal of vacation-pay claim by employee leaving employment after six months, where policy stated that no vacation is earned during the first year of employment; employers can “front-load” vacation at the beginning of the second year of employment, before the vacation is fully earned, while providing that an employee who leaves employment during the second year will receive only the vested portion of vacation pay); Owen v. Macy’s, Inc., 175 Cal. App. 4th 462, 472 (2009) (denying claim for vacation pay for employee terminated during first six months of employment, where employee handbook stated that the amount of vacation earned during the first six months of employment is zero). 448 DLSE Opinion Letter 1998.09.17, at 3 (citing California State Employees’ Ass’n v. State of Cal., 198 Cal. App. 3d 374 (1988) (salary deductions to recoup prior overpayments violated attachment and garnishment laws)). 449 DLSE Opinion Letter 1987.07.13-1, at 1. 450 197 Cal. App. 4th 1505 (2011). 451 Id. at 1522 (“we are not persuaded that employers must limit sabbaticals to upper management or professional employees”). 452 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. 453 Id. 454 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. 455 Id. at 1522. 456 See, e.g., Cal. 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). 457 Church v. Jamison, 143 Cal. App. 4th 1568 (2006).
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