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