BILL ANALYSIS
Senate Committee on Labor and Industrial Relations
Carole Migden, Chair
Date of Hearing: June 25, 2008 2007-2008 Regular
Session
Consultant: Alma Perez Fiscal:Yes
Urgency: No
Bill No: AB 2716
Author: Ma
As Amended: June 19, 2008
SUBJECT
Employment: paid sick days.
KEY ISSUE
Should the legislature require employers to provide paid sick
days to their employees?
PURPOSE
To require that employers provide paid sick days to employees
who work for seven or more days in a calendar year.
ANALYSIS
Existing law provides for various forms of unpaid and (in some
circumstances) paid leave for employees. Existing law
authorizes, but does not require, employers to provide their
employees with paid sick leave. Any employer that chooses to
provide sick leave must allow an employee to use accrued and
available sick leave, 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. Sick leave can be used by the
employee for any of the following reasons:
Being physically or mentally unable to work due to
illness, injury, or a medical condition of the employee.
Obtaining professional diagnosis of treatment for a
medical condition of the employee.
Other medical reasons of the employee, such as pregnancy
or obtaining a physical examination.
To attend to an illness of a child, parent, spouse, or
domestic partner of the employee.
Sick leave does not accrue, from one year to the next, nor does
it vest. In addition, sick leave does not extend the maximum
period of leave to which an employee is entitled under other
leaves, such as the federal Family and Medical Leave Act,
regardless of whether sick leave is received during that leave.
Existing law prohibits employers from denying 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 use, sick leave to attend
to an illness of a child, parent, spouse, or domestic partner of
the employee. Violation of this right entitles employees to
reinstatement and actual damages or one day's pay, whichever is
greater, and to appropriate equitable relief. The employee can
either file a complaint with the Labor Commissioner, or bring a
civil action for remedies.
Currently , San Francisco County is the only county that has
passed an ordinance requiring employers to provide paid sick
leave for all employees, including temporary and part-time
employees, who work within the county. The San Francisco Paid
Sick Leave Ordinance became effective on February 5, 2007.
This Bill would create the Healthy Families, Healthy Workplaces
Act of 2008, which would require employers to provide paid sick
days to employees who work seven or more days in a calendar
year. Specifically, this bill would:
Make several findings and declarations related to
employees and the need for paid sick days.
Provide that an employee who works in California for
seven or more days in a calendar year is entitled to paid
sick days, compensated at the same wage the employee
normally earns during regular work hours.
Hearing Date: June 25, 2008 AB 2716
Consultant: Alma Perez Page 2
Senate Committee on Labor and Industrial Relations
Specify that paid sick days accrue at a rate of no less
than one hour for every 30 hours worked, and may be used
beginning on the 90th calendar day of employment.
Provide that paid sick days shall be carried over to the
following calendar year, but an employer can limit their
use as follows:
o A small business employer (defined as having
ten or fewer employees) may limit an employee's use to
40 hours or five days in each calendar year.
o All other employers may limit an employee's
use to 72 hours or nine days in each calendar year.
Require an employer, upon oral or written request of an
employee, to provide paid sick days for the following
purposes:
o Diagnosis, care or treatment of an existing
health condition of, or preventive care for, an
employee or the employee's family member; or
o For an employee who is a victim of domestic
violence or sexual assault, as specified.
Define "family member" to include a child (as
specified), a parent (as specified), a spouse, a registered
domestic partner, a grandparent, a grandchild, or a
sibling.
Not require an employer to provide compensation to an
employee for accrued, unused paid sick days upon
termination, resignation, retirement, or other separation
from employment, except if an employee is rehired by the
same employer within one year, any previously accrued,
unused paid sick days shall be reinstated.
Allow an employer to lend paid sick days to an employee
in advance of accrual, at the employer's discretion and
with proper documentation.
Prohibit an employer from denying an employee the right
to use sick days, discharging, threatening to discharge,
demoting, suspending or in any manner discriminating
Hearing Date: June 25, 2008 AB 2716
Consultant: Alma Perez Page 3
Senate Committee on Labor and Industrial Relations
against an employee for using sick days, as specified.
Establish a rebuttable presumption of unlawful
retaliation if an employer denies an employee the right to
use sick days or in any manner discriminates against an
employee within 90 days of, among other things, the
employee filing a complaint with the Labor Commissioner
alleging violations of these provisions.
Require employers to provide written notice and posting
requirements, as specified, or be subject to a civil fine
for not compliance.
Require employers to keep certain records related to
paid sick days for five years.
Authorize the Labor Commissioner to:
o Coordinate implementation and enforcement of
these requirements and to promulgate guidelines and
regulations;
o Investigate alleged violations and order
appropriate relief, including reinstatement, back pay,
the payment of sick days unlawfully withheld, and
additional administrative penalties, as specified.
o In addition to the Attorney General, a person
aggrieved, or an entity a member of which is
aggrieved, to bring a civil action in a court of
competent jurisdiction to recover relief, as
specified, including back pay, penalties, liquidated
damages and attorney's fees and costs.
Specify that this bill establishes minimum requirements
and does not preempt, limit, or otherwise affect the
applicability of any other law or similar requirement that
provides greater accrual or use of sick days, or that
extends other protections to employees.
Provide that these requirements do not apply to an
employee covered by a valid collective bargaining agreement
that, among other things, expressly provides for paid sick
days or a paid leave or paid time off policy, and final and
binding arbitration of disputes concerning the application
Hearing Date: June 25, 2008 AB 2716
Consultant: Alma Perez Page 4
Senate Committee on Labor and Industrial Relations
of these provisions.
Provide that these requirements do not apply to
employees in the construction industry covered by a valid
collective bargaining agreement that meets certain
conditions but does not necessarily provide for paid sick
days.
Make other conforming and related changes to existing
law.
COMMENTS
1. Need for this bill?
According to data collected by the U.S. Bureau of Labor
Statistics, more than 59 million workers throughout the
country have no sick days leave, and even more - nearly 86
million - do not have paid sick leave just to care for sick
children. A recent study by the Women's Policy Research
Institute, Valuing Good Health in California: The Costs and
Benefits of the Healthy Families, Healthy Workplaces Act of
2008 by Vicki Lovell, found that employees with paid sick days
are less likely to leave their jobs. In addition, the study
found that by allowing workers to receive paid sick days, the
amount which employers could save annually could reach up to
$1 billion. These costs savings are primarily attributed to
the reduction of worker turnover.
In California, San Francisco County is the only county that
has passed an ordinance requiring employers to provide paid
sick leave for all employees who work within the county.
According to the San Francisco Office of Labor Standards
Enforcement, passage of the law has resulted in a small amount
of complaints from employees of employer non-compliance. In
addition, to date, a state Senate district office in San
Francisco has not received any complaints of employer
non-compliance from constituents. This bill is similar to the
San Francisco ordinance and would create the Healthy Families,
Healthy Workplaces Act of 2008 to require all California
employers to provide paid sick days to employees who work
seven or more days in a calendar year, as specified.
Hearing Date: June 25, 2008 AB 2716
Consultant: Alma Perez Page 5
Senate Committee on Labor and Industrial Relations
2. Background on San Francisco's Paid Sick Leave:
In 2006, San Francisco 61 percent of voters approved
Proposition F, the first law in the nation that required
workers with the ability to earn and use paid sick days. The
San Francisco Paid Sick Leave Ordinance (Chapter 12W) became
effective on February 5, 2007. The measure was implemented
and is enforced by the San Francisco Office of Labor Standards
Enforcement (OLSE). Pursuant to this ordinance, all employers
must provide paid sick leave to each employee (including
temporary and part-time employees) who performs work in San
Francisco.
For every 30 hours worked, an employee shall accrue one hour
of paid sick leave. An employee's accrued paid sick leave
carries over from year to year, subject to the applicable cap,
but does not get paid out at termination. Employees are
entitled to paid sick leave for their own illness or to
provide care for a sick child, parent, sibling, grandparent,
grandchild, spouse, registered domestic partner or other
designated person.
Employers are required to post a notice published by OLSE
advising employees of this benefit, as specified. Under the
ordinance, employees who assert their rights to receive paid
sick leave are protected from retaliation. The City can
investigate possible violations, shall have access to employer
records, and can enforce the paid sick leave requirements by
ordering reinstatement of employees, payment of paid sick
leave unlawfully withheld, and penalties.
3. Update on the implementation of the San Francisco's Paid Sick
Leave Ordinance:
OLSE has reported that there is no hard data as to the
utilization of sick leave under the San Francisco law, or of
its impact on employers or employees. However, in terms of
enforcement, OLSE reports that it had approximately 35 formal
complaints the first year of the law and sent an additional 35
cautionary letters to employers about whom anonymous workers
had contacted the office. In addition, OLSE undertook a
Hearing Date: June 25, 2008 AB 2716
Consultant: Alma Perez Page 6
Senate Committee on Labor and Industrial Relations
three-month public rulemaking process in early 2007 to clarify
outstanding issues regarding the law and has made over 20
public presentations to business and merchant associations.
4. Similar Efforts at the National, State and Federal Levels:
Paid sick days legislation has been proposed at the federal,
state and local levels. At least fourteen states have
proposed legislation for paid sick days over the last two
years. For several years, a federal Healthy Families Act has
been proposed that would ensure that all employees working 30
hours or more per week have seven paid sick days a year. The
Healthy Families Act, (S. 910, authored by Senator Edward
Kennedy, and H.R. 1542, authored by Representative Rosa
DeLauro) seeks to ensure that Americans can address their own
health needs and the health needs of their families. S.910
(Kennedy) was last referred to the Senate Committees on
Health, Education, Labor, and Pensions. H.R. 1542 (DeLauro),
was last referred to the Subcommittees on Health, Employment,
Labor and Pensions.
In addition, on March 4, 2008, the Washington, D.C. Council
passed the Accrued Sick and Safe Leave Act (ASSLA) mandating
that employers offer paid sick leave to all employees in the
District. Although the D.C. council has passed the ASSLA, the
measure will not become law until 30 days after the Mayor
signs the bill, unless Congress intervenes.
5. Proponent Arguments :
According to the author, 6 million working Californians (40
percent of all workers in California) do not have any paid
sick days through their employer. The author believes the lack
of paid days is a public health concern that harms children
and families. Proponents argue that many hardworking
Californians are forced to choose between losing a day's
wages, or their job, when they or their family members become
sick, a decision that no worker should be forced to make.
Proponents of the measure believe low-wage workers are most
disproportionately affected by the lack of paid sick days.
According to proponents, research by the Urban Institute
Hearing Date: June 25, 2008 AB 2716
Consultant: Alma Perez Page 7
Senate Committee on Labor and Industrial Relations
(Getting Time Off: Access to Leave Among Working Parents by
Katherine Ross Phillips 2004) shows that nationally, among
working parents with income below 200% of the federal poverty
line, 41% have no paid leave of any kind (no paid sick leave,
paid vacation, or personal days). Only 22% of food service
and hotel workers have any paid sick leave, and workers in
child care centers and nursing homes also disproportionately
lack this benefit. Proponents argue that the majority of
workers without access to paid sick days work most closely
with the public, a fact that undoubtedly has an effect on
public health.
Proponents argue that there will be a tremendous public health
savings if all workers are able to earn and use paid sick
days. They also argue that workers will be able to take time
off before an illness affects them or a family member too
severely keeping them from being out of work longer.
Proponents believe this bill is a good investment in the
state's workforce. In addition, the author argues that this
bill is modeled after a 2006 San Francisco ordinance that was
passed overwhelmingly by voters. The San Francisco law has
been in effect for over a year and, according to media
reports, employers feel business has proceeded as usual and
the law has not been overly burdensome.
6. Opponent Arguments :
According to opponents, this bill would unreasonably expand
employer costs and liability for new mandated paid sick leave
benefits covering all employees. Opponents argue that many
California employers provide paid sick leave and/or paid
vacation time even though current law does not require it,
however, unlike vacation days, sick leave does not accrue nor
vest and any unused sick leave may be forfeited at the end of
a designated period. This bill would change this process by
requiring unused paid sick time to carry over from year to
year. Opponents believe this would become a major paperwork
burden for companies and could increase legal and financial
liabilities.
Opponents argue that in order to prevent workplace disruption
and abuse the employees should be required to give reasonable
Hearing Date: June 25, 2008 AB 2716
Consultant: Alma Perez Page 8
Senate Committee on Labor and Industrial Relations
notice of absence and provide verification that the use of
paid sick days is lawful. In addition, opponents argue that
this bill contains broad mandates that apply regardless of the
impact on the business or other employees who may be needed to
take on additional job duties to cover for the absent
employee. Opponents believe that employers should be allowed
to cap both the use and accrual of paid sick days, as long as
the accrual cap equals or exceeds five days for small business
and nine days for larger businesses.
In addition, opponents argue that the application of paid sick
days to on-call relief workers is a major issue for nonprofit
health and human services agencies, especially at 24/7
facilities with mandatory minimum staffing levels. In
conclusion, opponents argue that the ever-increasing burden of
costly mandates on employers can cumulatively result in lower
wages, reducing available health insurance, limiting training
programs and in the worst-case scenario- job loss or reduced
work hours. Opponents believe that in an already troubled
economy, California should be seeking ways to stimulate job
growth and avoid forcing costly mandates on employers.
SUPPORT
9 to 5 National Association of Working Women
AFGE Local 2003
Amalgamated Transit Union
American Civil Liberties Union of Northern California
American Civil Liberties Union of Southern California
American Federation of State, County and Municipal Employees,
AFL-CIO
Asia Law Alliance
Asian Women's Shelter
Association of Community Organizations for Reform Now
California Alliance for Retired Americans
California Applicants' Attorneys Association
California Association of Nonprofits
California Child Care Resource & Referral Network
California Child Development CORPS
California Coalition Against Sexual Assault
California Coalition for Civil Rights
Hearing Date: June 25, 2008 AB 2716
Consultant: Alma Perez Page 9
Senate Committee on Labor and Industrial Relations
California Commission on the Status of Women
California Conference of Machinists
California Federation of Teachers
California Labor Federation, AFL-CIO
California NOW
California Nurses Association/National Nurses Organizing
Committee
California Pan-Ethnic Health Network
California Partnership
California Partnership to End Domestic Violence
California Rural Legal Assistance Foundation
California School Employees Association, AFL-CIO
California Teamsters Public Affairs Council
California Women Lawyers
California Women's Law Center
Center for WorkLife Law
Communications Workers of America
Disability Rights Legal Center
Engineers & Scientists of California, Local 20
Equal Right Advocates
Family Caregiver Alliance
Family Violence Prevention Fund
Filipinos for Affirmative Action
Health Officers Association of California
IFPTE Local 21
Int'l Brotherhood of Electrical Workers Local No. 595
International Longshore and Warehouse Union
JERICHO
Labor Project for Working Families
Lambda Letters Project
Legal Aid Society
Los Angeles County Democratic Party
Northern California District Council of the International
Longshore and Warehouse Union
Parent Voices
Professional Firefighters Association
Sacramento Central Labor Council, AFL-CIO
San Francisco Labor Council
San Mateo County Central Labor Council
Service Employees International Union
Southern California HIV Advocacy Coalition
State Building and Construction Trades Council, AFL-CIO
Hearing Date: June 25, 2008 AB 2716
Consultant: Alma Perez Page 10
Senate Committee on Labor and Industrial Relations
Survivors in Action
UNITE HERE!
United Auto Workers Local 2865
United Domestic Workers of America
United Food and Commercial Workers Union, Western States Council
United Transportation Union
Women's Foundation of California
OPPOSITION
2 G Roses LLC
A to Z Wholesale Floral Supply, Santa Ana, Calif.
AG-Seeds Unlimited
Alpha Poultry and Livestock Equipment, Inc.
Altman Specialty Plants, Inc.
Arlington Transload Services LLC
Associated General Contractors of California
Association of California Healthcare Districts
Association of California Water Agencies
B & H Flowers, Inc.
B.A.P. Nursery, Inc.
Baglietto Seeds
Best Agri-Marketing, Inc.
Biotech Associates Ltd.
Blooms & Bears Florist, Irvine, Calif.
Bornt & Sons, Inc.
Butte County Rice Growers Association
Cal/West Seeds
California Advocates, Inc.
California Apartment Association
California Association for Health Services at Home
California Association of Collectors
California Association of Joint Powers Authorities
California Association of Public Authorities for In-Home
Supportive Services (CAPA)
California Association of Sheet Metal and Air Conditioning
Contractors' National Association
California Attractions and Parks Association
California Automotive Business Coalition
California Bankers Association
California Beer and Beverage Distributors
Hearing Date: June 25, 2008 AB 2716
Consultant: Alma Perez Page 11
Senate Committee on Labor and Industrial Relations
California Chamber of Commerce
California Cleaners Association
California Construction & Industrial Materials Association
California Employment Law Council
California Family Foods
California Farm Bureau Federation
California Fence Contractors' Association
California Framing contractors Association
California Grocers Association
California Hispanic Chambers of Commerce
California Hospital Association
California Hotel & Lodging Association
California Independent Grocers Association
California League of Food Processors
California Lodging Industry Association
California Manufacturers and Technology Association
California New Car Dealers Association
California Newspaper Publishers Association
California Restaurant Association
California Retailers Association
California Small Business Association
California Special Districts Association
California State Association of Counties
California State Department of Finance
California Trucking Association
Canall Farms, Maxwell, Calif.
City of Costa Mesa
Colusa Rice
Concrete Contractors Association, Inc.
DeBruyn International, Inc.
DePue Warehouse Company
Distributors Processing, Inc. Porterville
Economy Lumber Company, Campbell, Calif.
Engineering Contractors' Association
Ever-Bloom, Inc., Carpinteria
Fairfax Lumber & Hardware
Far West Equipment Dealers Association
Flasher/Barricade Association
Foster Lumber Yards, Inc. Vallejo
Francis Biddle International, Inc.
Fresno County Farm Bureau
Glenn Growers, Princeton
Hearing Date: June 25, 2008 AB 2716
Consultant: Alma Perez Page 12
Senate Committee on Labor and Industrial Relations
Gringo Ventures LLC (dba Dos Gringos), Vista
H & H Engineering Construction, Inc., Stockton, Calif.
Harris Moran Seed Company
Hart Floral, Modesto, Calif.
IGM Integrated Grain & Milling
Independent Maintenance Contractors Association
Independent Waste Oil Collectors and Transporters
Integrated Coating and Seed Technology, INCOTEC, Salinas
Interwest Commodities LLC
Irrigation Solutions, Inc.
Irvine Chamber of Commerce
J.S. West & Company, Modesto, Calif.
Jasmine Creek Florist
Keithly-Williams Seeds, Inc., Holtville
Keller Lumber Sales, Inc., Redding, Calif.
Kohara Nursery, Inc.
L.C. Dennis Company, Inc., Maxwell, Calif.
League of California Cities
Long Beach Area Chamber of Commerce
Los Angeles Area Chamber of Commerce
Manhattan Beach Chamber of Commerce's Legislative Advocacy
Council
Marin Builders' Association
Mary Wadsworth, Corcoran
Moark, LLC, Norco
National Federation of Independent Business
Nutri-Systems
NuWest
NuWest Milling, Hughson, Calif.
Ocean Breeze International
Pacific Association of Building Service Contractors
Penny-Newman Grain Company
Peter M. Fukumae, CPA
R.A. Davis Commodities, LLC
Red Top Rice Growers
Reel Lumber, Anaheim
Regional Council of Rural Counties
Relles Florist
River Garden Faros Co., Knights Landing
Robert Mann Packaging, Inc. Gilroy
Rote Greenhouses, Inc.
Rudvalis Orchids
Hearing Date: June 25, 2008 AB 2716
Consultant: Alma Perez Page 13
Senate Committee on Labor and Industrial Relations
S&W Seed Company
Screw Conveyor Pacific Corporation
Seed Dynamics, Inc. Salinas
Sequoia Orchids LLD
Skyline Flowers Growers
Small Business California
Smith-Kandal Insurance and Real Estate Agency
South Bay Association of Chambers of Commerce
Southwest California Legislative Council
Strain Orchards, LP
Strain Ranches, Inc.
Thomas Products LLC
Thompson Rose, Co. San Marcos, Calif.
Truckee-Tahoe Lumber Company
Unity Forest Products
USAA
Voortman's Egg Ranch
Western Electrical Contractors Association
Western Growers
Western Milling
Yuba City Florist, Inc.
Zacky Farms, LLC
* * *
Hearing Date: June 25, 2008 AB 2716
Consultant: Alma Perez Page 14
Senate Committee on Labor and Industrial Relations