BILL NUMBER: AB 2716 AMENDED
AMENDED IN SENATE JUNE 19, 2008
AMENDED IN ASSEMBLY MARCH 24, 2008
INTRODUCED BY Assembly Member Ma
( Coauthors: Assembly Members
Laird, Swanson, and Torrico )
FEBRUARY 22, 2008
An act to amend Sections 226, 233, and 234 of, and to add Article
1.5 (commencing with Section 245) to Chapter 1 of Part 1 of Division
2 of, the Labor Code, relating to employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 2716, as amended, Ma. Employment: paid sick
Existing law authorizes employers to provide their employees paid
This bill would provide that an employee who works in California
for 7 or more days in a calendar year is entitled to paid sick days,
as defined, which shall be accrued at a rate of no less
than one hour for every 30 hours worked. An employee would be
entitled to use accrued sick days beginning on the 90th calendar day
of employment. The bill would require employers to provide paid sick
days, upon the request of the employee, for diagnosis, care, or
treatment of health conditions of the employee or an employee's
family member, or for leave related to domestic violence or sexual
assault. An employer would be prohibited from discriminating or
retaliating against an employee who requests paid sick days. The bill
would require employers to satisfy specified posting and notice, and
recordkeeping requirements. The bill would also make conforming
This bill would require the Department of Industrial
Relations Labor Commissioner to administer and
enforce these requirements, including the promulgation of
regulations, investigation, mitigation, and relief of violations of
these requirements. This bill would authorize the department to
impose specified administrative fines for violations and would
authorize an aggrieved person, the department
commissioner , the Attorney General, or an entity a member of
which is aggrieved to bring an action to recover specified civil
penalties against an offender, as well as attorney's fees, costs, and
The bill would specify that it does not apply to employees covered
by a collective bargaining agreement that provides for paid sick
days, nor does it lessen any other obligations of the employer to
employees. This bill would further specify that it does not apply to
employees in the construction industry covered by a collective
bargaining agreement if the agreement expressly waives the
requirements of this article in clear and unambiguous terms.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares the following:
(a) Nearly every worker in the State of California will at some
time during the year need some time off from work to take care of his
or her own health or the health of family members.
(b) Many workers in California do not have any paid sick days, or
have an inadequate number of paid sick days, to care for their own
health or the health of family members.
(c) Low-income workers are significantly less likely to have paid
sick time than other workers.
(d) Providing workers time off to attend to their own health care
and the health care of family members will ensure a healthier and
more productive workforce in California.
(e) Paid sick days will have an enormously positive impact on the
public health of Californians by allowing sick workers paid time off
to care for themselves when ill, thus lessening their recovery time
and reducing the likelihood of spreading illness to other members of
(f) Paid sick days will allow parents to provide personal care for
their sick children. Parental care ensures children's speedy
recovery, prevents more serious illnesses, and improves children's
overall mental and physical health.
(g) Providing paid sick days is affordable for employers and good
(h) Employers who provide paid sick days enjoy greater employee
retention and reduce the likelihood of employees coming to work sick.
Studies have shown that costs of decreased productivity caused by
sick workers exceed the costs of employee absenteeism.
(i) Many adults have significant elder care responsibilities
requiring them to take time off from work or to work reduced hours.
(j) Employees frequently lose their jobs or are disciplined for
taking sick days to care for sick family members or to recover from
their own illnesses.
(k) Workers whose jobs involve significant contact with the
public, such as service workers and restaurant workers, are very
unlikely to have paid sick days. Often, these workers have no choice
but to come to work when they are ill, thereby spreading illness to
coworkers and customers.
(l) Domestic violence and sexual assault affect many persons
without regard to age, race, national origin, sexual orientation, or
(m) Domestic violence is a crime that has a devastating effect on
families, communities, and the workplace. It impacts productivity,
effectiveness, absenteeism, and employee turnover in the workplace.
The National Crime Survey estimates that 175,000 days of work each
year are missed due to domestic violence.
(n) Survivors of domestic violence and sexual assault may be
vulnerable at work when trying to end an abusive relationship because
the workplace may be the only place where the perpetrator knows to
contact the victim. Studies show that up to one-half of domestic
violence victims experience job loss. Forty percent reported
on-the-job harassment. Nearly 50 percent of sexual assault survivors
lose their jobs or are forced to quit in the aftermath of the
(o) Affording survivors of domestic violence and sexual assault
paid sick days is vital to their independence and recovery.
SEC. 2. In enacting this act, it is the intent of the Legislature
to do the following:
(a) Ensure that workers in California can address their own health
needs and the health needs of their families by requiring employers
to provide a minimum level of paid sick days including time for
(b) Decrease public and private health care costs in California by
enabling workers to seek early and routine medical care for
themselves and their family members and to address domestic violence
or sexual assault.
(c) Protect employees in California from losing their jobs while
they use sick days to care for themselves or their families.
(d) Provide economic security to employees in California who take
time off work for reasons related to domestic violence or sexual
(e) Safeguard the welfare, health, safety, and prosperity of the
people of and visitors to California.
SEC. 3. Section 226 of the Labor Code is amended to read:
226. (a) An employer shall, semimonthly or at the time of each
payment of wages, furnish to each employee, either as a detachable
part of the check, draft, or voucher paying the employee's wages, or
separately if wages are paid by personal check or cash, an accurate
itemized statement in writing showing (1) gross wages earned, (2)
total hours worked by the employee, unless the employee's
compensation is solely based on a salary and the employee is exempt
from payment of overtime under subdivision (a) of Section 515 or any
applicable order of the Industrial Welfare Commission, (3) the number
of piece-rate units earned and any applicable piece rate if the
employee is paid on a piece-rate basis, (4) all deductions, provided
that all deductions made on written orders of the employee may be
aggregated and shown as one item, (5) net wages earned, (6) the
inclusive dates of the period for which the employee is paid, (7) the
name of the employee and his or her social security number, except
that by January 1, 2008, only the last four digits of his or her
social security number or an employee identification number other
than a social security number may be shown on the itemized statement,
(8) the name and address of the legal entity that is the employer,
(9) paid sick leave accrued and used pursuant to Article 1.5
(commencing with Section 245), and (10) all applicable hourly rates
in effect during the pay period and the corresponding number of hours
worked at each hourly rate by the employee. The deductions made from
payments of wages shall be recorded in ink or other indelible form,
properly dated, showing the month, day, and year, and a copy of the
statement or a record of the deductions shall be kept on file by the
employer for at least three years at the place of employment or at a
central location within the State of California.
(b) An employer that is required by this code or any regulation
adopted pursuant to this code to keep the information required by
subdivision (a) shall afford current and former employees the right
to inspect or copy the records pertaining to that current or former
employee, upon reasonable request to the employer. The employer may
take reasonable steps to assure the identity of a current or former
employee. If the employer provides copies of the records, the actual
cost of reproduction may be charged to the current or former
(c) An employer who receives a written or oral request to inspect
or copy records pursuant to subdivision (b) pertaining to a current
or former employee shall comply with the request as soon as
practicable, but no later than 21 calendar days from the date of the
request. A violation of this subdivision is an infraction.
Impossibility of performance, not caused by or a result of a
violation of law, shall be an affirmative defense for an employer in
any action alleging a violation of this subdivision. An employer may
designate the person to whom a request under this subdivision should
(d) This section does not apply to any employer of any person
employed by the owner or occupant of a residential dwelling whose
duties are incidental to the ownership, maintenance, or use of the
dwelling, including the care and supervision of children, or whose
duties are personal and not in the course of the trade, business,
profession, or occupation of the owner or occupant.
(e) An employee suffering injury as a result of a knowing and
intentional failure by an employer to comply with subdivision (a) is
entitled to recover the greater of all actual damages or fifty
dollars ($50) for the initial pay period in which a violation occurs
and one hundred dollars ($100) per employee for each violation in a
subsequent pay period, not exceeding an aggregate penalty of four
thousand dollars ($4,000), and is entitled to an award of costs and
reasonable attorney's fees.
(f) A failure by an employer to permit a current or former
employee to inspect or copy records within the time set forth in
subdivision (c) entitles the current or former employee or the Labor
Commissioner to recover a seven-hundred-fifty-dollar ($750) penalty
from the employer.
(g) An employee may also bring an action for injunctive relief to
ensure compliance with this section, and is entitled to an award of
costs and reasonable attorney's fees.
(h) This section does not apply to the state, to any city, county,
city and county, district, or to any other governmental entity,
except that if the state or a city, county, city and county,
district, or other governmental entity furnishes its employees with a
check, draft, or voucher paying the employee's wages, the state or a
city, county, city and county, district, or other governmental
entity shall, by January 1, 2008, use no more than the last four
digits of the employee's social security number or shall use an
employee identification number other than the social security number
on the itemized statement provided with the check, draft, or voucher.
SEC. 4. Section 233 of the Labor Code is amended to read:
233. (a) Any employer who provides sick leave for employees shall
permit an employee to use in any calendar year the employee's
accrued and available sick leave entitlement, in an amount not less
than the sick leave that would be accrued during six months at the
employee's then-current rate of entitlement, to attend to an illness
of a child, parent, spouse, or domestic partner of the employee. All
conditions and restrictions placed by the employer upon the use by an
employee of sick leave also shall apply to the use by an employee of
sick leave to attend to an illness of his or her child, parent,
spouse, or domestic partner. This section does not extend the maximum
period of leave to which an employee is entitled under Article 1.5
(commencing with Section 245) of this chapter, Section 12945.2 of the
Government Code, or the federal Family and Medical Leave Act of 1993
(29 U.S.C. Sec. 2606 et seq.), regardless of whether the employee
receives sick leave compensation during that leave.
(b) As used in this section:
(1) "Child" means a biological, foster, or adopted child, a
stepchild, a legal ward, a child of a domestic partner, or a child of
a person standing in loco parentis.
(2) "Employer" means a person employing another under an
appointment or contract of hire and includes the state, political
subdivisions of the state, and municipalities.
(3) "Parent" means a biological, foster, or adoptive parent, a
stepparent, or a legal guardian.
(4) (A) "Sick leave" means accrued increments of compensated leave
provided by an employer to an employee as a benefit of the
employment for use by the employee during an absence from the
employment for any of the following reasons:
(i) The employee is physically or mentally unable to perform his
or her duties due to illness, injury, or a medical condition of the
(ii) The absence is for the purpose of obtaining professional
diagnosis or treatment for a medical condition of the employee.
(iii) The absence is for other medical reasons of the employee,
such as pregnancy or obtaining a physical examination.
(B) "Sick leave" includes paid sick days as defined in Section
(C) "Sick leave" does not include any benefit provided under an
employee welfare benefit plan subject to the federal Employee
Retirement Income Security Act of 1974 (P.L. 93-406, as amended) and
does not include any insurance benefit, workers' compensation
benefit, unemployment compensation disability benefit, or benefit not
payable from the employer's general assets.
(c) An employer shall not deny an employee the right to use sick
leave or discharge, threaten to discharge, demote, suspend, or in any
manner discriminate against an employee for using, or attempting to
exercise the right to use, sick leave to attend to an illness of a
child, parent, spouse, or domestic partner of the employee.
(d) Any employee aggrieved by a violation of this section shall be
entitled to reinstatement and actual damages or one day's pay,
whichever is greater, and to appropriate equitable relief.
(e) Upon the filing of a complaint by an employee, the Labor
Commissioner shall enforce the provisions of this section in
accordance with the provisions of Chapter 4 (commencing with Section
79) of Division 1, including, but not limited to, Sections 92, 96.7,
98, and 98.1 to 98.8, inclusive. Alternatively, an employee may bring
a civil action for the remedies provided by this section in a court
of competent jurisdiction. If the employee prevails, the court may
award reasonable attorney's fees.
(f) The rights and remedies specified in this section are
cumulative and nonexclusive and are in addition to any other rights
or remedies afforded by contract or under other provisions of law.
SEC. 5. Section 234 of the Labor Code is amended to read:
234. An employer absence control policy that counts sick leave
taken pursuant to Section 233 or Article 1.5 (commencing with Section
245) as an absence that may lead to or result in discipline,
discharge, demotion, or suspension is a per se violation of Section
233. An employee working under this policy is entitled to appropriate
legal and equitable relief pursuant to Section 233.
SEC. 6. Article 1.5 (commencing with Section 245) is added to
Chapter 1 of Part 1 of Division 2 of the Labor Code, to read:
Article 1.5. Paid Sick Days
245. This article shall be known and may be cited as the Healthy
Families, Healthy Workplaces Act of 2008.
245.5. For the purposes of this article, the following terms have
the following meanings:
(a) "Department" means the Department of Industrial Relations.
(a) "Family member" means any of the following:
(1) A biological, adopted, or foster child, stepchild, legal ward,
or a child to whom the employee stands in loco parentis.
(2) A biological, adoptive, or foster parent, stepparent, or legal
guardian 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.
(3) A spouse.
(4) A registered domestic partner.
(5) A grandparent.
(6) A grandchild.
(7) A sibling.
(8) A designated person for whom the employee may use paid sick
days to provide care. For the purposes of this paragraph, an employer
shall allow each employee who has no spouse or registered domestic
partner to designate a person for whom he or she may use paid sick
days to provide care in addition to the family members listed in
paragraphs (1), (2), (5), (6), and (7). The employer shall provide
the opportunity to make this designation no later than the date on
which the employee has worked 30 hours after paid sick days have
begun to accrue. There shall be a 10-day period during which the
employee may make this designation. Thereafter, the employer shall
annually provide the employee a 10-day period within which to make
this designation or change a prior designation. If an employer fails
to provide an opportunity to make a designation, the employer shall
permit an employee without a spouse or registered partner to use paid
sick days to care for a person other than a family member listed in
paragraph (1), (2), (5), (6), or (7). That person shall become the
employee's designated person and shall remain so designated until the
next opportunity for the employee to change his or her designation.
(c) "Small business" means an employer who employs 10 or fewer
employees during 20 or more calendar workweeks in the current or
preceding calendar year.
(b) "Health care provider" has the same meaning as
defined in paragraph (6) of subdivision (c) of Section 12945.2 of the
(c) "Paid sick days" means time that is compensated at
the same wage as the employee normally earns during regular work
hours and is provided by an employer to an employee for the purposes
described in Section 246.5.
(d) "Small business" mean an employer who employs 10 or fewer
employees during 20 or more calendar workweeks in the current or
preceding calendar year.
246. (a) An employee who works in California for seven or more
days in a calendar year is entitled to paid sick time
days as specified in this section.
(b) (1) An employee shall accrue paid sick days at the rate of no
less than one hour for every 30 hours worked, beginning at the
commencement of employment or the operative date of this article,
whichever is first.
(2) An employee who is exempt from overtime requirements as an
administrative, executive, or professional employee under any Wage
Order of the Industrial Welfare Commission is deemed to work 40 hours
per workweek for the purposes of this section, unless the employee's
normal workweek is less than 40 hours, in which case the employee
will accrue paid sick days based upon that normal workweek.
(c) An employee shall be entitled to use accrued paid sick days
beginning on the 90th calendar day of employment, after which the
employee may use paid sick days as they are accrued.
(d) Paid sick days shall be carried over to the following calendar
year. However, an employer may limit an employee's use of paid sick
days as follows:
(1) A small business employer may limit an employee's use to 40
hours or five days in each calendar year.
(2) All other employers may limit an employee's use to 72 hours or
nine days in each calendar year.
(e) An employer is not required to provide additional paid sick
days pursuant to this section if the employer has a paid leave
or paid time off policy and the employer makes available an
amount of leave that satisfies the accrual requirements of this
section and that may be used for the same purposes and under the same
conditions as specified in this section.
(f) (1) Except as specified in paragraph (2), an employer shall
not be required to provide compensation to an employee for accrued,
unused paid sick days upon termination, resignation, retirement, or
other separation from employment.
(2) If an employee separates from and is rehired by the same
employer within one year, any previously accrued, unused paid sick
days shall be reinstated. The employee shall be entitled to use those
accrued sick days and to accrue additional sick days upon rehiring.
(g) An employer may lend paid sick days to an employee in advance
of accrual, at the employer's discretion and with proper
246.5. (a) Upon the oral or written request of an employee, an
employer shall provide paid sick days for the following purposes:
(1) Diagnosis, care, or treatment of an existing health condition
of, or preventive care for, an employee or an employee's family
(2) For an employee who is a victim of domestic violence or sexual
assault, the purposes described in subdivision (c) of Section 230
and subdivision (a) of Section 230.1 , regardless of how
many employees are employed by the employee's employer.
(b) An employer shall not require as a condition of taking paid
sick days that the employee search for or find a replacement worker
to cover the days during which the employee is on paid sick days.
(c) (1) An employer shall not deny an employee the right to use
sick days, discharge, threaten to discharge, demote, suspend, or in
any manner discriminate against an employee for using sick days,
attempting to exercise the right to use sick days, filing a complaint
with the department or in a court alleging a violation of this
article, cooperating in an investigation or prosecution of an alleged
violation of this article, or opposing any policy or practice or act
that is prohibited by this article.
(2) There shall be a rebuttable presumption of unlawful
retaliation if an employer denies an employee the right to use sick
days, discharges, threatens to discharge, demotes, suspends, or in
any manner discriminates against an employee within 90 days of any of
(A) The employee files a complaint with the department
Labor Commissioner or in a court alleging a
violation of this article.
(B) The employee cooperates with an investigation or prosecution
of any alleged violation of this article.
(C) The employee opposes any policy, practice, or act that is
prohibited by this article.
247. (a) An employer shall give each employee written notice of
the requirements of this article in English, Spanish, Chinese, and
any other language spoken by at least 5 percent of the employees. The
written notice must state the following:
(1) That employees are entitled to accrue, request, and use paid
(2) The amount of paid sick days provided for by this article.
(4) That retaliation or discrimination against an employee who
requests paid sick days or uses paid sick days, or both is prohibited
and that an employee has the right under this article to file a
complaint or bring a civil action against an employer who retaliates
or discriminates against the employee.
(b) In each workplace, the employer shall display a poster in a
conspicuous place containing all the information specified in
subdivision (a). The department Labor
Commissioner shall create these posters and make them available
(c) An employer who willfully violates the notice and posting
requirements of this section shall be subject to a civil fine of not
more than one hundred dollars ($100) for each offense.
247.5. Employers shall keep for five years records documenting
hours worked and paid sick days accrued and used by employees.
Employers shall allow the department Labor
Commissioner access to these records with appropriate notice
and at a mutually agreeable time to monitor compliance with this
article. Employers shall make these records available to employees
pursuant to Section 226. If an employer does not maintain adequate
records pursuant to this section, it shall be presumed that the
employee is entitled to the maximum number of hours accruable under
this article, unless the employer can show otherwise by clear and
248. The department Labor Commissioner
is authorized and directed to coordinate implementation and
enforcement of this article and to promulgate guidelines and
regulations for those purposes.
248.5. (a) The department Labor
Commissioner is authorized and directed to enforce this
article, including investigating an alleged violation, and ordering
appropriate temporary relief to mitigate the violation or to maintain
the status quo pending the completion of a full investigation or
(b) If the department commissioner ,
after a hearing that affords due process, determines that a
violation has occurred, it may order any appropriate relief,
including reinstatement, back pay, the payment of sick days
unlawfully withheld, and the payment of an additional sum as an
administrative penalty to each employee or person whose rights under
this article were violated. If paid sick days were unlawfully
withheld, the dollar amount of paid sick days withheld from the
employee multiplied by three, or two hundred fifty dollars ($250),
whichever amount is greater, shall be included in the administrative
penalty paid to the employee. In addition, if a violation of this
article results in other harm to the employee or another person, such
as discharge from employment, or otherwise results in a violation of
the rights of an employee or another person, the administrative
penalty shall include fifty dollars ($50) to each employee or person
whose rights under this article were violated for each day or portion
thereof that the violation occurred or continued.
(c) Where prompt compliance by an employer is not forthcoming, the
department commissioner may take any
appropriate enforcement action to secure compliance, including filing
a civil action. In compensation to the state for the costs of
investigating and remedying the violation, the department
commissioner may order the violating employer or
person to pay to the state a sum of not more than fifty dollars
($50) for each day or portion of a day a violation occurs or
continues for each employee or person as to whom the violation
applies. These funds shall be allocated to the department
commissioner to offset the costs of implementing
and enforcing this article.
(d) An employee or other person may report to the
department commissioner a suspected violation of
this article. The department commissioner
shall encourage reporting pursuant to this subdivision by
keeping confidential, to the maximum extent permitted by applicable
laws, the name and other identifying information of the employee or
person reporting the violation. However, the department
commissioner may disclose that person's name and
identifying information as necessary to enforce this article or for
other appropriate purposes, upon the authorization of that person.
(e) The department commissioner ,
the Attorney General, a person aggrieved by a violation of this
article, or an entity a member of which is aggrieved by a violation
of this article may bring a civil action in a court of competent
jurisdiction against the employer or other person violating this
article and, upon prevailing, shall be entitled to such legal or
equitable relief as may be appropriate to remedy the violation,
including reinstatement, backpay, the payment of any sick days
unlawfully withheld, the payment of an additional sum as liquidated
damages in the amount of fifty dollars ($50) to each employee or
person whose rights under this article were violated for each day or
portion thereof that the violation occurred or continued, plus, if
the employer has unlawfully withheld paid sick days to an employee,
the dollar amount of paid sick days withheld from the employee
multiplied by three; or two hundred fifty dollars ($250), whichever
amount is greater; and reinstatement in employment or injunctive
relief; and further shall be awarded reasonable attorney's fees and
costs, provided, however, that any person or entity enforcing this
article on behalf of the public as provided for under applicable
state law shall, upon prevailing, be entitled only to equitable,
injunctive, or restitutionary
relief, and reasonable attorney's fees and costs.
(f) In any administrative or civil action brought under this
article, the department commissioner or
court, as the case may be, shall award interest on all amounts due
and unpaid at the rate of interest specified in subdivision (b) of
Section 3289 of the Civil Code.
(g) The remedies, penalties, and procedures provided under this
article are cumulative.
249. (a) This article does not limit or affect any laws
guaranteeing the privacy of health information, or information
related to domestic violence or sexual assault, regarding an employee
or employee's family member. That information shall be treated as
confidential and shall not be disclosed to any person except to the
affected employee, or as required by law.
(b) This article shall not be construed to discourage or prohibit
an employer from the adoption or retention of a paid sick days policy
more generous than the one required herein.
(c) This article does not lessen the obligation of an employer to
comply with a contract, collective bargaining agreement, employment
benefit plan, or other agreement providing more generous sick days to
an employee than required herein.
(d) This article establishes minimum requirements pertaining to
paid sick days and does not preempt, limit, or otherwise affect the
applicability of any other law, regulation, requirement, policy, or
standard that provides for greater accrual or use by employees of
sick days, whether paid or unpaid, or that extends other protections
249.5. This article does not apply to an employee covered by a
valid collective bargaining agreement 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, final and binding arbitration of disputes
concerning the application of its 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
249.6. (a) This article does not apply to 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, 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
expressly waives the requirements of this article in clear and
(b) For purposes of this section, "employee in the construction
industry" means an employee performing onsite work associated with
construction, including work involving alteration, demolition,
building, excavation, renovation, remodeling, maintenance,
improvement, repair work, and any other work as described by Chapter
9 (commencing with Section 7000) of Division 3 of the Business and
Professions Code, and other similar or related occupations or trades.