BILL NUMBER: AB 400	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Ma

                        FEBRUARY 14, 2011

   An act to amend Section 226 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 400, as introduced, 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 Labor Commissioner
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 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. However,
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.
   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 from 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)  Every   An  employer shall,
semimonthly or at the time of each payment of wages, furnish 
each of his or her employees   to each employee  ,
either as a detachable part of the check, draft, or voucher paying
the employee's wages, or separately  when   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, except for any employee whose
  unless the employee's  compensation is solely
based on a salary and  who   the employee 
is exempt from payment of overtime under subdivision (a) of Section
515 or  any   an  applicable order of the
Industrial Welfare Commission, (3) the number of piece-rate units
earned and  any   the  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,  and  (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
  a  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  is made  under this
subdivision  will be made  .
   (d) This section does not apply to  any   an
 employer of  any   a  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
  a  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.  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
Workplaces, Healthy Families Act of 2011.
   245.5.  For the purposes of this article the following terms have
the following meanings:
   (a) "Employee" does not include the following:
   (1)  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.
   (2) 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. For purposes of this
subparagraph, "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.
   (b) "Family member" means any of the following:
   (1) A child, which for purposes of this article means a
biological, adopted, or foster child, stepchild, legal ward, or a
child to whom the employee stands in loco parentis. This definition
of a child is applicable regardless of age or dependency status.
   (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.
   (c) "Health care provider" has the same meaning as defined in
paragraph (6) of subdivision (c) of Section 12945.2 of the Government
Code.
   (d) "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.
   (e) "Small business" means 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 not
less than one hour per 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 a 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 day the
employee may use paid sick days as they are accrued.
   (d) Accrued paid sick days shall carry 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 policy
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 is not
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 an employer and is rehired by
the employer within one year, previously accrued and unused paid sick
days shall be reinstated. The employee shall be entitled to use
those paid sick days and to accrue additional paid 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 using paid
sick days that the employee search for or find a replacement worker
to cover the days during which the employee uses 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 filing of a complaint by the employee with the Labor
Commissioner or in a court alleging a violation of this article.
   (B) The cooperation of an employee with an investigation or
prosecution of an alleged violation of this article.
   (C) Opposition by the employee to a 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 shall state the following:
   (1) That an employee is 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 of the employer, the employer shall display
a poster in a conspicuous place containing all the information
specified in subdivision (a). The Labor Commissioner shall create a
poster containing this information and make it available to
employers.
   (c) An employer who willfully violates the notice and posting
requirements of this section is subject to a civil penalty of not
more than one hundred dollars ($100) per each offense.
   247.5.  An employer shall keep for at least five years records
documenting the hours worked and paid sick days accrued and used by
an employee. An employer shall allow the Labor Commissioner access to
these records with appropriate notice and at a mutually agreeable
time to monitor compliance with this article. An employer shall make
these records available to an employee 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 Labor Commissioner, after a hearing that contains
adequate safeguards to ensure that the parties are afforded due
process, determines that a violation of this article has occurred, he
or she may order any appropriate relief, including reinstatement,
backpay, the payment of sick days unlawfully withheld, and the
payment of an additional sum in the form of an administrative penalty
to an employee or other 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. In
addition, if a violation of this article results in other harm to the
employee or person, such as discharge from employment, or otherwise
results in a violation of the rights of the employee or person, the
administrative penalty shall include a sum of fifty dollars ($50) for
each day or portion thereof that the violation occurred or
continued.
   (c) Where prompt compliance by an employer is not forthcoming, the
Labor Commissioner may take any appropriate enforcement action to
secure compliance, including the filing of a civil action. In
compensation to the state for the costs of investigating and
remedying the violation, the commissioner may order the violating
employer 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 other person whose rights under this
article were violated. These funds shall be allocated to the Labor
Commissioner to offset the costs of implementing and enforcing this
article.
   (d) An employee or other person may report to the Labor
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 law, 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 Labor 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 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 an administrative or civil action brought under this
article, the Labor 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 an employee.
   249.5.  (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.