Here is the text of the new law.
The law adds sections 245-249 to the Labor Code.
Here are key provisions, although we'll have a more detailed article soon:
Coverage
1. The effective date is 7/1/15. So employers will have time to develop their policies.
3. Employees with collective bargaining agreements providing paid sick leave (and other issues), and who make more than 30% more than minimum wage, are not covered.
4. Employees in the construction industry may not receive any paid sick leave if there is a collective bargaining agreement that expressly waives the new law, provided other requirements in the law are met.
5. Flight crew members covered by the federal Railway Labor Act who receive compensatory time off under certain circumstances are not covered.
6. Providers of in-home supportive services under certain sections of the Welfare and Institutions Code are not covered. However, it looks like other home care employees will be.
7. Employees who work 30 days or more in California are covered.
8. "Exempt" employees, such as managers, lawyers, etc. are covered.
Sick Leave Terms
1. Sick leave can be used to take care of the employee, as well as family members. Family members include parents, children, foster and step-children, grandparents, siblings, domestic partners, and others.
2. "Pay" is at the employee's base rate.
3. The right to use paid sick leave begins at 90 days of employment.
4. Sick leave accrues from the first day of employment.
5. The employee earns an hour of sick pay for each 30 hours worked.
6. The employer can limit paid sick leave to 3 days or 24 hours per 12 month period (rolling, calendar, or anniversary year).
7. Accrued sick leave carries over to the next year. But the employer can cap accrual at 48 hours or 6 days.
8. The employer can set a minimum increment of 2 hours of sick pay usage. However, the employee can use how much he or she wishes. The employer cannot mandate that the employee use more than the employee wants to use.
9. PTO and existing sick plans may be sufficient if they satisfy the minimums in the law. That is, there is no need to provide additional sick pay above what the employer offers already (assuming the employer's policy is at least as generous).
10. Anyone reinstated < 12 months from termination has accrued, unused sick leave restored.
11. No payout on termination.
12. The law does not repeal "Kin Care." So, employers with more generous plans will have to allow employees to use 1/2 of the annual sick leave entitlement for Kin Care under that statute (assuming the employer's plan provides for more than 6 days of paid sick leave per year).
Notice
1. The employee only has to give notice if foreseeable or, if not foreseeable, as soon as practicable. That's a change to employer policies that will have to be implemented.
2. Employee notice can be written or verbal.
3. The employer must include the accrued balance of sick pay on the wage statement per Lab. Code section 226. Or, the employer can provide a separate document at each pay day. However, the section 226 penalties do not apply. Rather the special penalties in this statute apply.
4. Section 2810.5 (Wage Theft notice law) is amended to now include a notice re paid sick leave.
5. New poster. $100 penalty for violating the poster requirement.
Enforcement
1. No private right of action. This law is enforced by the DLSE or the attorney general. However, there appears to be a provision that will allow for a "private attorney general" action for "equitable, injunctive, or restitutionary relief, and reasonable attorney’s fees and costs." That is, no penalties under PAGA. It is unclear how this will work, given the rest of the statute provides only for enforcement by the DLSE or attorney general.
2. It remains to be seen whether a cause of action for wrongful termination in violation of public policy will lie for those who claim wrongful termination due to taking sick leave.
3. There is a "safe harbor" from penalties applicable to "isolated" and "inadvertent" record keeping or notice errors.
4. The labor commissioner can award unlawfully withheld sick pay, reinstatement, and back pay at an administrative hearing.
5. There are a variety of $50 penalties per day per employee available, which apply for different violations. It's unclear how they work together. But the maximum aggregate penalty per violation is $4,000.00 to each person whose rights were violated. That penalty may include triple the sick pay that was withheld. The labor commissioner can award pre-judgment interest too.
6. There is a "rebuttable presumption" of retaliation if an employer takes negative action against an employee who files a complaint with the labor commissioner, participates in an investigation about paid sick leave, or opposes an employer practice related to paid sick leave.
7. The law says that the labor commissioner can conduct hearings, but the law does not specify that the hearings take place under the normal wage hearing statute. So, if the labor commissioner rules against you on a sick leave / discharge claim, you have to go to superior court on a writ of mandate, maybe? No appeal de novo and bond filed in superior court? We'll see I guess.
8. The labor commissioner can file suit if the employer does not comply with the labor commissioner's rulings.
* * *
Well that's a good start. The nice news is that these modest minimum paid sick leave requirements are easily amended in future years. So, don't get used to the 3-day minimum, k?
Before July 2015, ensure you revise your sick leave policies, payroll checks, and Wage Theft forms!
We will have more information as it becomes available and so will the DLSE. Good luck.
DGV
