[author: Joanne Warriner]

Many California state statutes are applied based on the number of persons employed by an employer employee count. Unfortunately, there are a number of these laws, including statutes establishing employee leaves of absence requirements, that do not specify which employees must be counted to determine if the law applies to a particular employer. A recent state guidance regarding the 2023 state pay transparency statute, which requires the inclusion of a pay scale in job postings by employers with at least 15 employees, but which law does not specify who must be included in the count, addressed this issue.

An employer is covered by the law if 1) the employer reaches the minimum employee count at any point in a pay period, and 2) at least one employee is currently located in California. If an employer has more than one facility, all employees are counted, including out-of-state employees, for purposes of calculating the number of persons employed to determine application of the law. However, employees outside of the United States need not be included in an employee count unless this is specified by the statute.

In the case of the state pay transparency law, it is important to note that the state guidance also stated that if a job posting may ever be filled in California, either in-person or remotely, the pay scale must be included in the posting.