BILL NUMBER: AB 2716 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 4, 2008
AMENDED IN SENATE JUNE 19, 2008
AMENDED IN ASSEMBLY MARCH 24, 2008
INTRODUCED BY Assembly Member Ma
(Coauthors: Assembly Members Laird, Swanson, and Torrico)
( Coauthors: Senators
Cedillo, Kuehl, and Wiggins )
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 days.
Existing law authorizes employers to provide their employees paid
sick leave.
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 changes.
This bill would require the 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 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 interest.
The bill would specify that it applies to certain public
authorities, established to deliver in-home supportive services,
except where a collective bargaining agreement provides for an
incremental wage increase sufficient to satisfy the bill's
requirements for accrual of sick days. 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
the workforce.
(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
for business.
(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
socioeconomic status.
(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
assaults.
(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
family care.
(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
assault.
(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
employee.
(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
be made.
(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. Employer also
includes an entity under subdivision (a) of Section 12301.6 of the
Welfare and Institutions Code who employs persons to perform domestic
service comprising in-home supportive services under
Article 7 (commencing with Section 12300) of Chapter 3 of Part 3 of
Division 9 of the Welfare and Institutions Code.
(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
employee.
(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
245.5.
(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) "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.
(b) "Health care provider" has the same meaning as defined in
paragraph (6) of subdivision (c) of Section 12945.2 of the Government
Code.
(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 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
documentation.
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
member.
(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.
(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
the following:
(A) The employee files a complaint with the 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
sick days.
(2) The amount of paid sick days provided for by this article.
(3) The terms of use of paid sick days.
(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 Labor Commissioner shall create these posters
and make them available to employers.
(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 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 convincing evidence.
248. The 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 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 hearing.
(b) If the commissioner, after a hearing that affords due process,
determines that a violation has occurred, it may order any
appropriate relief, including reinstatement, backpay, 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
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
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 commissioner to offset the costs of implementing and
enforcing this article.
(d) An employee or other person may report to the commissioner a
suspected violation of this article. The 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 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 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 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
to employees.
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 rate.
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
unambiguous terms.
(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.
249.7. (a) A public authority created under Section 12301.6 of
the Welfare and Institutions Code shall be required to meet the
requirements of this article for individuals who perform domestic
services comprising in-home supportive services under Article 7
(commencing with Section 12300) of Chapter 3 of Part 3 of Division 9
of the Welfare and Institutions Code.
(b) A public authority may satisfy the requirements of this
article by entering into a collective bargaining agreement that
provides an incremental hourly wage adjustment in an amount
sufficient to satisfy the accrual requirements of Section 246.