California Enacts Paid Sick Leave Law

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Governor Jerry Brown has signed AB 1522, requiring employers to provide paid sick leave.  California joins Connecticut as the only two states requiring paid sick leave; San Francisco and a few other cities also require paid sick leave.

This bill enacts the Healthy Workplaces, Healthy Families Act of 2014 to provide that an employee who, on or after July 1, 2015, works in California for 30 or more days within a year from the commencement of employment is entitled to paid sick days, to be accrued at a rate of no less than one hour for every 30 hours worked.  An employee will be entitled to use accrued sick days beginning on the 90th day of employment.  The bill authorizes an employer to limit an employee’s use of paid sick days to 24 hours or 3 days in each year of employment.  The bill prohibits an employer from discriminating or retaliating against an employee who requests paid sick days.  The bill requires employers to satisfy posting, notice and recordkeeping requirements.

The bill requires the Labor Commissioner to enforce these requirements and authorizes the Labor Commissioner to impose specified administrative fines for violations and authorizes the commissioner or the Attorney General to recover specified civil penalties against an offender who violated these provisions on behalf of the aggrieved, as well as attorney’s fees, costs, and interest.

The bill does not apply to certain categories of employees that meet specified requirements.  The definition of “Employee” does not include:

  1. An employee covered by a valid collective bargaining agreement if the agreement expressly provides for paid sick days or a paid leave or paid time off policy that permits the use of sick days for those employees, final and binding arbitration of disputes concerning the application of its paid sick days provisions and regular hourly rate of pay of not less than 30 percent more than the state minimum wage rate.
  2. An employee in the construction industry covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of employees and regular hourly pay of not less than 30 percent more than the state minimum wage rate, and the agreement either (A) was entered into before January 1, 2015, or (B) expressly waives the requirements of this article in clear and unambiguous terms.
  3. A provider of in-home supportive care.

An exempt employee is deemed to work 40 hours per workweek, unless the employee’s normal workweek is less than 40 hours, in which case the employee must accrue paid sick days based upon that normal workweek.

Accrued paid sick days must carry over to the following year of employment.  However, an employer may limit an employee’s use of paid sick days to 24 hours or three days in each year of employment.

If an employee separates from an employer and is rehired by the employer within one year from the date of separation, previously accrued and unused paid sick days must be reinstated.  The employee will be entitled to use those previously accrued and unused paid sick days and to accrue additional paid sick days upon rehiring.

An employer may lend paid sick days to an employee in advance of accrual, at the employer’s discretion and with proper documentation.

An employer has no obligation to allow an employee’s total accrual of paid sick leave to exceed 48 hours or 6 days, provided that an employee’s rights to accrue and use paid sick leave are not otherwise limited.

An employee may determine how much paid sick leave he or she needs to use, provided that an employer may set a reasonable minimum increment, not to exceed two hours, for the use of paid sick leave.

If the need for paid sick leave is foreseeable, the employee must provide reasonable advance notification.  If the need for paid sick leave is unforeseeable, the employee must provide notice of the need for the leave as soon as practicable.

An employer must provide payment for sick leave no later than the payday for the next regular payroll period after the sick leave was taken.

An employer cannot require as a condition of using paid sick days that the employee search for or find a replacement worker to cover the days during which the employee uses paid sick days.

There will be a rebuttable presumption of unlawful retaliation if an employer denies an employee the right to use accrued sick days, discharges, threatens to discharge, demotes, suspends, or in any manner discriminates against an employee within 30 days of any of the following:

(A) The filing of a complaint by the employee with the Labor Commissioner or alleging a violation of this law.

(B) The cooperation of an employee with an investigation or prosecution of an alleged violation of this law.

(C) Opposition by the employee to a policy, practice, or act that is prohibited by this article.

In each workplace, the employer must display a poster in a conspicuous place.  The Labor Commissioner will create a poster and make it available to employers.

An employer must keep for at least three years records documenting the hours worked and paid sick days accrued and used by an employee, and shall allow the Labor Commissioner to access these records. If an employer does not maintain adequate records, it will be presumed that the employee is entitled to the maximum number of hours accruable, unless the employer can show otherwise by clear and convincing evidence.

If the Labor Commissioner, after a hearing that contains adequate safeguards to ensure that the parties are afforded due process, determines that a violation of this article has occurred, he or she may order any appropriate relief, including reinstatement, backpay, the payment of sick days unlawfully withheld, and the payment of an additional sum in the form of an administrative penalty to an employee or other person whose rights under this article were violated.

An employer will not be assessed any penalty or liquidated damages due to an isolated and unintentional payroll error or written notice error that is a clerical or an inadvertent mistake regarding the accrual or available use of paid sick leave.  The investigator may consider whether the employer, prior to an alleged violation, has adopted and is in compliance with a set of policies, procedures, and practices that fully comply with the law.

Employers in California should revise their policies and procedures to conform with the new law.

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