Wednesday, September 10, 2014

California Now Mandates Paid Sick Leave for Employees. Law Takes Effect July 1, 2015.

Governor Brown signed legislation on September 10th mandating paid sick leave for employees in the Golden State  The law will take effect on July 1, 2015 and requires employers to provide up to three days of annual paid sick leave to workers, who would accrue the time off at a minimum rate of one hour per 30 hours worked. The law applies to employers of all sizes and covers full-time, part-time and temporary employees, permitting them to take leave as early as their 90th day of employment. 

Link to statutory text.

The following is from Charles Thompson and Hera Arsen at Ogletree Deakins:
California employers need to know the following about the legislation:
  1. The bill would enact a new law entitled the “Healthy Workplaces, Healthy Families Act of 2014” and would amend California Labor Code 2810.5.
  2. Beginning July 1, 2015, California employees will accrue one hour of paid sick leave for every 30 hours worked.
  3. Employees can begin using their paid sick days on the 90th day of their employment for their own health condition, a family member’s health condition, and if the employee is a victim of domestic assault, sexual violence, and/or stalking.
  4. The legislation defines “family member” to include spouse, registered domestic partner, grandparent, grandchild, and sibling. Because grandparent, grandchild, and siblings are not family members under the California Family Rights Act, the legislation expands the types of family members for which an employee can take protected leave.
  5. Employers can limit an employee’s use of paid sick days to 24 hours or 3 days in each year of employment.
  6. Employers are not required to pay out accrued unused sick leave at time of termination.
  7. Employers cannot discriminate or retaliate against employees who request and/or use paid sick days. An employer that takes an adverse employment action against an employee who uses or requests leave is presumed to have retaliated against the employee.
  8. The bill imposes posting, notice, and record-keeping obligations on employers.
  9. The bill assigns enforcement authority to the California Labor Commissioner.
  10. Employers that violate the law will face administrative fines. The bill also authorizes the Labor Commissioner or the Attorney General to recover civil penalties, attorneys’ fees, costs, and interest against violating employers, as well as to reinstate employees.
  11. The bill exempts employees covered by collective bargaining agreements if those agreements meet certain requirements, including providing for paid leave and binding arbitration.
... Because many California employers already provide at least three days of paid time off that employees can use for sick leave for themselves and others, the legislation will impose administrative burdens on those employers without providing their employees with any additional days off. Employers will have to comply with notice and record-keeping burdens and integrate the law with their own paid time off policies, Labor Code section 233 (“kin care”), family medical leave, and all the other protected leaves that California provides employees. ...
According to Douglas J. Farmer, a shareholder in the San Francisco office of Ogletree Deakins:
Many California employers that currently have paid sick leave policies believe that the new legislation will not impact them. In fact, every employer with a paid sick leave policy will now have to review their policies to ensure they meet the minimum requirements of the law. Many paid sick leave policies, for example, exclude part-time, temporary, and seasonal employees from paid sick leave benefits. The new law provides no such limitation and will place employers with such limited policies squarely in violation of the law. Similarly, paid sick leave policies that meet the requirements of California Labor Code section 233, the state's ‘kin care’ law, will likely also fall short of compliance. The legislation extends the employee’s right to use paid sick leave benefits to care for a broader range of family members than section 233, including grandparents, grandchildren, and siblings. Employers in San Francisco and San Diego, which have their own unique paid sick leave ordinances, will have the unenviable task of integrating their policies at both the state and local levels.
And the below is from Susan Schoenfeld at BLR:  
The Healthy Workplaces, Healthy Families Act of 2014 (the Act) requires that covered employers provide up to three days of paid sick leave per year for diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member. The Act also requires that paid sick leave be provided to eligible employees who are victims of domestic violence, sexual assault, or stalking.
Here are the basics:
    Covered family members include children, parents, spouses, registered domestic partners, grandparents and grandchildren, and siblings. Covered children include biological, adopted, or foster children, stepchild, a legal ward, or a child to whom the employee stands in loco parentis. The definition of a child is applicable regardless of age or dependency status.
    Covered parents include biological, adoptive, or foster parents, stepparents, or legal guardians of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child.
In order to be eligible for paid sick leave, an employee must have worked within the state for 30 or more days within a year from the commencement of employment. An employee will be entitled to use accrued paid sick days beginning on the 90th day of employment, after which day the employee may use paid sick days as they are accrued. 
Employers must provide employees with written notice that sets forth the amount of paid sick leave available, or paid time off leave an employer provides in lieu of sick leave, for use on either the employee’s itemized wage statement or in a separate writing provided on the designated pay date with the employee’s payment of wages.
At the time of hiring, an employer must provide each employee a written notice, in the language the employer normally uses to communicate employment-related information to the employee, containing (among other information) that the employee:
  • May accrue and use sick leave;
  • Has a right to request and use accrued paid sick leave;
  • May not be terminated or retaliated against for using or requesting the use of accrued paid sick leave;
  • And, has the right to file a complaint against an employer who retaliates. ...
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. ... 
Employers with paid sick leave policies in place
An employer is not required to provide additional paid sick days pursuant to the Act if the employer has a paid leave policy or paid time off policy in place and the employer makes an amount of leave that may be used for the same purposes and under the same conditions as specified in the Act.
In order to meet the Act’s threshold requirements, the employer’s policy must either satisfy the accrual, carry over, and use requirements of the Act—or provide no less than 24 hours or three days of paid sick leave, or equivalent paid leave or paid time off—for employee use for each year of employment or calendar year or 12-month basis. No accrual or carry over is required if the full amount of leave is received at the beginning of each year. ...
If the Labor Commissioner determines that a violation of the Act 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 Act were violated. Penalties range from $50 to a $4,000 aggregate cap. 
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. In determining whether the employer’s actions were isolated and unintentional, a fact finder 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 Act. 
Specific industries and employee groups are excluded from the requirements of the paid sick leave Act. Those excluded from the Act’s coverage include:
  • Collective bargaining agreements (CBAs). An employee covered by a valid CBA is not covered by the Act if the agreement expressly provides for the wages, hours of work, and working conditions of employees, and 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. The CBA must also provide for final and binding arbitration of disputes concerning the application of paid sick days provisions, premium wage rates for all overtime hours worked, and regular hourly rate of pay of not less than 30 percent more than the state minimum wage rate.
  • Construction industry/CBAs. An employee in the construction industry covered by a valid CBA is not entitled to paid sick leave under the Act if the CBA expressly provides for the wages, hours of work, and working conditions of employees, premium wage rates for all overtime hours worked, and regular hourly pay of not less than 30 percent more than the state minimum wage rate, and the agreement either was entered into before January 1, 2015, or expressly waives the requirements of the Act in clear and unambiguous terms.
  • Providers of in-home supportive services
  • Individuals employed by an air carrier. Flight deck or cabin crew members are subject to the provisions of Title II of the federal Railway Labor Act (45 U.S.C. 181 et seq.), provided that the individuals are provided with compensated time off equal to or exceeding the amount provided by the Healthy Workplaces, Healthy Families Act of 2014. ...