For purposes of the notice, it must be given “at the time of hiring,” which may be a date determined by the parties (employer and employee), but in no event may the notice be provided to the employee later than the “start date” for work. As of April 2012, the template has been updated accordingly to indicate the start date which is the latest time for providing the notice. The statute states that employers shall provide the written notice “[a]t the time of hiring,” without defining the phrase. In the absence of a statutory definition for “hiring,” its ordinary meaning is “to get the services of a person or use of a thing in return for payment; employ or engage.” (Webster’s New World Collegiate Dictionary, 4th Ed, 2001, p. 675). The concept does not necessarily depend on the first day of work by the employee but may be sooner where there has been an offer and acceptance of employment establishing an employment relationship. (See Labor Code 2750). While the obligation for payment of wages for work performed arises when work is performed, the employment contract may be created prior to performance. Thus, the first day of work may be used as the time of hire (date of hire) for unilateral contracts, such as where an offer is made by an employer and only accepted by the employee when performance of work commences. More often, however, employment contracts (written or oral) are bilateral where the offer of employment is made by the employer and accepted by the employee, at which time an employment relationship arises (which may be several days prior to commencement of work). Thus, the employer must provide the notice to new hires reasonably close in time to the inception of the employment relationship which may be a date determined by the employer and employee, however, in no event later than the first day services are performed by the employee. Also, it is important to note that even where an employment contract in fact does not exist, an obligation to pay wages (minimum wages and overtime) may still exist if the employment is otherwise established under statute or regulation under applicable definitions contained in the Labor Code and/or Industrial Welfare Commission orders. (See Martinez v. Combs (2010) 49 Cal.4th 35 [discussing employment relationship under statute and regulation definitions]). This means that a denial of the existence of an employment agreement or a failure of an employer to provide the required notice does not dispense with the statutory obligation to pay wages (or to provide the required notice) to one performing labor or services if employment is established under statutory or regulatory provisions. (Question and Response updated 4/12/12)
October 2018
Tags: California, Wage Theft Prevention Act
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