Amended in Senate August 29, 2014

Amended in Senate August 22, 2014

Amended in Senate August 18, 2014

Amended in Senate June 15, 2014

Amended in Assembly May 28, 2014

Amended in Assembly May 23, 2014

Amended in Assembly March 28, 2014

Amended in Assembly March 13, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 1522

Introduced by Assembly Member Gonzalez

(Principal coauthor: Assembly Member Levine)

(Coauthors: Assembly Members Alejo, Ammiano, Bonta, Campos, Dickinson, Roger Hernández, Lowenthal, Pan, Rendon, Stone, Ting, Wieckowski, and Williams)

(Coauthors: Senators Corbett, Hueso, Lara, Leno, and Padilla)

January 16, 2014

An act to amend Section 2810.5 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 1522, as amended, Gonzalez. Employment: paid sick days.

Existing law authorizes employers to provide their employees paid sick leave.

This bill would enact the Healthy Workplaces, Healthy Families Act of 2014 to provide that an employee who, on or after July 1, 2015, works in California for 30 or more days within a year from the commencement of employment is entitled to paid sick days for prescribed purposes, to 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 day of employment. The bill would authorize an employer to limit an employee’s use of paid sick days to 24 hours or 3 days in each year of employment. The bill would prohibit an employer 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 define terms for those purposes.

The bill would require the Labor Commissioner to begin delete administer and end delete enforce these requirements, including begin delete the promulgation of regulations, and end delete the investigation, mitigation, and relief of violations of these requirements. The bill would authorize the Labor Commissioner to impose specified administrative fines for violations and would authorize the commissioner or the Attorney General to recover specified civil penalties against an offender who violated these provisions on behalf of the aggrieved, as well as attorney’s fees, costs, and interest.

The bill would not apply to certain categories of employees that meet specified requirements.

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.  

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.  

(a) This article shall be known and may be cited as the
Healthy Workplaces, Healthy Families Act of 2014.

(b) The provisions of this article are in addition to and
independent of any other rights, remedies, or procedures available
under any other law and do not diminish, alter, or negate any other
legal rights, remedies, or procedures available to an aggrieved
person.

245.5.  

As used in this article:

(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 either (A) was entered
into before January 1, 2015, or (B) 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.

(3)  begin delete An employee covered by a valid collective bargaining
agreement who performs domestic services comprising end delete begin insert A provider
of end insert in-home supportive services under begin insert Section 14132.95, 14132.952,
or 14132.956 of, or end insert Article 7 (commencing with Section 12300)
of Chapter 3 of Part 3 of Division 9 begin delete of end delete begin insert of, end insert the Welfare and
Institutions begin delete Code, if the agreement expressly waives the
requirements of this article in clear and unambiguous terms. end delete begin insert Code. end insert

(4) An individual employed by an air carrier as a flight deck or
cabin crew member that is subject to the provisions of Title II of
the federal Railway Labor Act (45 U.S.C. 181 et seq.), provided
that the individual is provided with compensated time off equal to
or exceeding the amount established in paragraph (1) of subdivision
(b) of Section 246.

(b) “Employer” means any person employing another under
any appointment or contract of hire and includes the state, political
subdivisions of the state, and municipalities.

(c) “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.

(d) “Health care provider” has the same meaning as defined in
paragraph (6) of subdivision (c) of Section 12945.2 of the
Government Code.

(e) “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.

246.  

(a) An employee who, on or after July 1, 2015, works in
California for 30 or more days within a year from the
commencement of employment 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 later.

(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 shall 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 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
year of employment. However, an employer may limit an
employee’s use of paid sick days to 24 hours or three days in each
year of employment. This section shall be satisfied and no accrual
or carry over is required if the full amount of leave is received at
the beginning of each year, in accordance with subdivision (e).

(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, the employer makes available an amount
of leave that may be used for the same purposes and under the
same conditions as specified in this section, and the policy does
either of the following:

(1) Satisfies the accrual, carry over, and use requirements of
this section.

(2) Provides no less than 24 hours or three days of paid sick
leave, or equivalent paid leave or paid time off, for employee use
for each year of employment or calendar year or 12-month basis.

(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 from the date of separation,
previously accrued and unused paid sick days shall be reinstated.
The employee shall be entitled to use those previously accrued
and unused 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.

(h) An employer shall provide an employee with written notice
that sets forth the amount of paid sick leave available, or paid time
off leave an employer provides in lieu of sick leave, for use on
either the employee’s itemized wage statement described in Section
226 or in a separate writing provided on the designated pay date
with the employee’s payment of wages. The penalties described
in this article for a violation of this subdivision shall be in lieu of
the penalties for a violation of Section 226.

(i) An employer has no obligation under this section to allow
an employee’s total accrual of paid sick leave to exceed 48 hours
or 6 days, provided that an employee’s rights to accrue and use
paid sick leave under this section are not otherwise limited.

(j) An employee may determine how much paid sick leave he
or she needs to use, provided that an employer may set a reasonable
minimum increment, not to exceed two hours, for the use of paid
sick leave.

(k) The rate of pay shall be the employee’s hourly wage. If the
employee in the 90 days of employment before taking accrued
sick leave had different hourly pay rates, was paid by commission
or piece rate, or was a nonexempt salaried employee, then the rate
of pay shall be calculated by dividing the employee’s total wages,
not including overtime premium pay, by the employee’s total hours
worked in the full pay periods of the prior 90 days of employment.

(l) If the need for paid sick leave is foreseeable, the employee
shall provide reasonable advance notification. If the need for paid
sick leave is unforeseeable, the employee shall provide notice of
the need for the leave as soon as practicable.

(m) An employer shall provide payment for sick leave taken by
an employee no later than the payday for the next regular payroll
period after the sick leave was taken.

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, sexual
assault, or stalking, 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 accrued sick days, discharge, threaten to discharge, demote,
suspend, or in any manner discriminate against an employee for
using accrued sick days, attempting to exercise the right to use
accrued sick days, filing a complaint with the department or
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
accrued sick days, discharges, threatens to discharge, demotes,
suspends, or in any manner discriminates against an employee
within 30 days of any of the following:

(A) The filing of a complaint by the employee with the Labor
Commissioner or 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) In each workplace of the employer, the employer shall
display a poster in a conspicuous place containing all the
information specified in subdivision begin delete (a). end delete begin insert (b). end insert The Labor
Commissioner shall create a poster containing this information
and make it available to employers.

begin insert

(b) The poster shall state all of the following:

end insert begin insert

(1) An employee is entitled to accrue, request, and use paid sick
days.

end insert begin insert

(2) The amount of sick days provided for by this article.

end insert begin insert

(3) The terms of use of paid sick days.

end insert begin insert

(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 with the Labor Commissioner against an employer who
retaliates or discriminates against the employee.

end insert begin delete

(b)

end delete

begin insert (c) end insert  An employer who willfully violates the 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 three years records
documenting the hours worked and paid sick days accrued and
used by an employee, and shall allow the Labor Commissioner to
access these records pursuant to the requirements set forth in
Section 1174. An employer shall make these records available to
an employee in the same manner as described in 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.

begin delete

248.  

The Labor Commissioner shall coordinate implementation
and enforcement of this article and promulgate guidelines and
regulations for those purposes.

end delete

248.5.  

(a) The Labor Commissioner shall 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) (1) 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.

(2) 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,
but not to exceed begin insert an aggregate penalty of end insert four thousand dollars
($4,000), shall be included in the administrative penalty.

(3) 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, not to exceed begin insert an aggregate penalty of end insert four
thousand dollars ($4,000).

(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.

(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 or the Attorney General 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 collect legal or equitable relief on behalf of the
aggrieved as may be appropriate to remedy the violation, including
reinstatement, backpay, the payment of sick days unlawfully
withheld, the payment of an additional sum, not to exceed begin insert an
aggregate penalty of end insert four thousand dollars ($4,000), 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.

begin insert

(h) An employer shall not be assessed any penalty or liquidated
damages under this article due to an isolated and unintentional
payroll error or written notice error that is a clerical or an
inadvertent mistake regarding the accrual or available use of paid
sick leave. In reviewing for compliance with this section, the
factfinder may consider as a relevant factor whether the employer,
prior to an alleged violation, has adopted and is in compliance
with a set of policies, procedures, and practices that fully comply
with this section.

end insert

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.

SEC. 4.  

Section 2810.5 of the Labor Code is amended to read:

2810.5.  

(a) (1) At the time of hiring, an employer shall provide
to each employee a written notice, in the language the employer
normally uses to communicate employment-related information
to the employee, containing the following information:

(A) The rate or rates of pay and basis thereof, whether paid by
the hour, shift, day, week, salary, piece, commission, or otherwise,
including any rates for overtime, as applicable.

(B) Allowances, if any, claimed as part of the minimum wage,
including meal or lodging allowances.

(C) The regular payday designated by the employer in
accordance with the requirements of this code.

(D) The name of the employer, including any “doing business
as” names used by the employer.

(E) The physical address of the employer’s main office or
principal place of business, and a mailing address, if different.

(F) The telephone number of the employer.

(G) The name, address, and telephone number of the employer’s
workers’ compensation insurance carrier.

(H) That an employee: may accrue and use sick leave; has a
right to request and use accrued paid sick leave; may not be
terminated or retaliated against for using or requesting the use of
accrued paid sick leave; and has the right to file a complaint against
an employer who retaliates.

(I) Any other information the Labor Commissioner deems
material and necessary.

(2) The Labor Commissioner shall prepare a template that
complies with the requirements of paragraph (1). The template
shall be made available to employers in such manner as determined
by the Labor Commissioner.

(3) If the employer is a temporary services employer, as defined
in Section 201.3, the notice described in paragraph (1) must also
include the name, the physical address of the main office, the
mailing address if different from the physical address of the main
office, and the telephone number of the legal entity for whom the
employee will perform work, and any other information the Labor
Commissioner deems material and necessary. The requirements
of this paragraph do not apply to a security services company that
is licensed by the Department of Consumer Affairs and that solely
provides security services.

(b) An employer shall notify his or her employees in writing of
any changes to the information set forth in the notice within seven
calendar days after the time of the changes, unless one of the
following applies:

(1) All changes are reflected on a timely wage statement
furnished in accordance with Section 226.

(2) Notice of all changes is provided in another writing required
by law within seven days of the changes.

(c) For purposes of this section, “employee” does not include
any of the following:

(1) An employee directly employed by the state or any political
subdivision thereof, including any city, county, city and county,
or special district.

(2) An employee who is exempt from the payment of overtime
wages by statute or the wage orders of the Industrial Welfare
Commission.

(3) An employee who is covered by a valid collective bargaining
agreement if the agreement expressly provides for the wages, hours
of work, and working conditions of the employee, and if the
agreement provides premium wage rates for all overtime hours
worked and a regular hourly rate of pay for those employees of
not less than 30 percent more than the state minimum wage.