BILL ANALYSIS Ó
AB 1522
Page 1
Date of Hearing: March 25, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 1522 (Gonzalez) - As Amended: March 13, 2014
As Proposed to be Amended
SUBJECT : EMPLOYMENT: PAID SICK DAYS
KEY ISSUE : IN ORDER TO PROTECT CO-WORKERS FROM EXPOSURE TO
ILLNESS AND PROVIDE FAIR ALTERNATIVES TO WORKING PARENTS WITH
SICK CHILDREN, SHOULD EMPLOYERS BE REQUIRED TO PROVIDE AT LEAST
3 PAID SICK DAYS FOR ANY EMPLOYEE WHO WORKS FOR SEVEN OR MORE
DAYS IN A CALENDAR YEAR?
SYNOPSIS
This bill is substantially similar to but less far-reaching than
three prior efforts that have been taken up periodically since
2008. The prior measures passed this Committee by votes of 6-3,
7-3, and 7-3 respectively but were held on suspense in the
Appropriations Committees. This bill creates the Healthy
Families, Healthy Workplaces Act of 2014, which requires
employers to provide at least three paid sick days for an
employee who works for seven or more days in a calendar year.
The employee would have the right to use accrued sick days only
after three months of employment. According to the author, 40
percent of all workers in California do not have any paid sick
days through their employer. The author states that this bill
appropriately allows workers to earn paid sick days, which they
can use for personal illness, to care for a sick family member
and to recover from domestic violence or assault. The author
argues that studies have found that providing sick days to
workers saves money for businesses by reducing turnover,
reducing the spread of illness in the workplace, and improving
workers' morale and productivity. The sponsors state that the
lack of paid sick days is a public health hazard. The sponsors
also state that this bill will increase productivity since the
productivity of workers with even minor illnesses goes down
compared to the productivity of their healthy co-workers.
Finally, the author states that this bill will prevent parents
from choosing between caring for a sick child and work
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obligations. Opponents representing many large and small
business associations, including the National Federation of
Independent Business, California Employment Law Council, and the
California Chamber of Commerce, argue that this bill would
unreasonably expand employers' burdens, costs and liability.
Opponents also state that many California employers provide paid
sick leave and/or paid vacation time even though current law
does not require it. Opponents conclude that in an already
troubled economy California should be seeking ways to stimulate
job growth and avoid forcing costly mandates on employers.
SUMMARY : Creates the Healthy Families, Healthy Workplaces Act
of 2014, which requires employers to provide paid sick days for
an employee who works for seven or more days in a calendar year.
Specifically, this bill :
1)Provides that 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 bill.
2)Provides that 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 bill, whichever is later.
3)Provides that an employee shall be entitled to use accrued
paid sick days beginning on the 90th calendar day of
employment, after which the employee may use paid sick days as
they are accrued.
4)Provides that paid sick days shall carry over to the following
calendar year, but an employer may limit an employee's use of
paid sick days to 24 hours or three days in each calendar
year.
5)Provides that an "employee" does not include:
a) An employee covered by a valid collective bargaining
agreement that expressly provides for paid sick days or
similar policy, as specified.
b) An employee in the construction industry covered by a
valid collective bargaining agreement that was entered into
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before January 1, 2015 or waives the requirements of this
bill, as specified.
6)Provides that "employer" includes the state, political
subdivisions of the state, and municipalities.
7)Provides that a public authority shall comply with these
requirements for individuals who perform in-home supportive
services, except that the public authority may satisfy these
requirements by entering into a collective bargaining
agreement that provides an incremental hourly wage adjustment
in an amount sufficient to satisfy the accrual requirements of
this bill.
8)Provides that an employer shall provide paid sick days for the
following purposes:
a) Diagnosis, care, or treatment of an existing health
condition of, or preventative care for, an employee or an
employee's family member, as defined.
b) For an employee who is a victim of domestic violence,
sexual assault or stalking, as specified.
9)Specifies that an employer is not required to provide
additional paid sick days if the employer has a paid leave
policy or paid time off policy that meets the accrual
requirements and other purposes of this section, as specified.
10)Provides that an employer is not required to provide
compensation to an employee for accrued and unused paid sick
days upon separation from employment, except that if an
employee separates from employment and is rehired within one
year, previously accrued and unused paid sick leave shall be
reinstated.
11)Authorizes an employer to lend paid sick days to an employee
in advance of accrual, as specified.
12)Provides that an employer shall not deny an employee the
right to use paid sick days or engage in other adverse
employment actions, as specified.
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13)Provides that there shall be a rebuttable presumption of
unlawful retaliation if any employer denies an employee the
right to use paid sick days or takes other specified adverse
action within 90 days of specified protected activities by the
employee.
14)Requires an employer to provide each employee with written
notice of these requirements, as specified.
15)Requires the employer to retain records for five years
documenting an employee's hours worked and paid sick days
accrued and used, as specified.
16)Directs the Labor Commissioner to coordinate implementation
and enforcement of these requirements and to promulgate
guidelines and regulations.
17)Directs the Labor Commissioner to enforce these requirements,
and establishes administrative procedures, enforcement
actions, and administrative penalties, as specified.
18)Authorizes the Labor Commissioner, 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.
19)Provides that these requirements do not limit or affect any
laws guaranteeing the privacy of health information, or
information related to domestic violence or sexual assault, as
specified.
20)Provides that these requirements shall not be construed to
discourage or prohibit an employer from the adoption or
retention of a more generous paid sick days policy.
21)Provides that these requirements do 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.
22)Provides that these requirements establish minimum standards
and do not preempt, limit or otherwise affect the
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applicability of any other law, regulation, requirement,
policy, or standard that provides for greater accrual or use
of sick days or that extends other protections to an employee.
23)Makes related legislative findings and declarations of
legislative intent.
EXISTING LAW requires, under the Moore-Brown-Roberti California
Family Rights Act, employers with 50 or more employees to
provide covered employees, upon request, with up to 12 weeks of
protected unpaid leave during any 12-month period for the
following reasons:
1)For the birth of a child or the placement of a child in
connection with the adoption or placement in foster care of
the child with the employee;
2)To care for a parent, spouse or child with a serious health
condition; or,
3)Because of the employee's own serious health condition.
(Government Code Sections 12945.1 et seq.)
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
COMMENTS : This bill is substantially similar to, but more
limited than, AB 400 of 2011, AB 1000 of 2009, and AB 2716 of
2008, each of which passed this Committee by votes of 6-3, 7-3,
and 7-3 respectively, only to then be held on suspense in the
Appropriations Committees. It is more limited than prior
measures in that it would require employers to afford only a
minimum of three sick days, rather than up to 9 days as under
the prior measures.
The bill is intended to address the current situation in which a
reported 6 million California workers (or about 40 percent of
the workforce) are not provided paid sick days through their
employer. The author's office states that this bill allows
workers to earn paid sick days, which they can use for personal
illness, to care for a sick family member and to recover from
domestic violence or assault. The author argues that studies
have found that providing sick days to workers saves money for
businesses by reducing turnover, reducing the spread of illness
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in the workplace and improving workers' morale and productivity.
The sponsors state that the lack of paid sick days is a public
health hazard. According to supporters, the Centers for Disease
Control recommends workers who are ill "stay home from work and
school" to prevent the spread of disease in the community and
workplace. Supporters also state that this bill will increase
productivity since the productivity of workers with even minor
illnesses goes down compared to the productivity of their
healthy co-workers. Finally, supporters state that this bill
will prevent parents from choosing between caring for a sick
child and work obligations.
Various Reports and Studies Indicate a Need for Paid Sick Leave
and Highlight its Benefits: According to the Labor Project for
Working Families (LPWF), 6 million working Californians do not
have paid sick days. LPWF states that 76% of low-wage workers
have no paid sick days and have no choice but to go to work sick
and send their sick children to either school or child care.
According to LPWF, sick workers risk spreading contagion to the
public and are more likely to have an accident on the job.
According to a 2003 Kaiser Family Foundation Report, half of all
U.S. women forego pay when they stay home to take care of a sick
child (Women, Work, and Family Health: A Balancing Act, Henry J.
Kaiser Family Foundation, April 2003). A recent study,
conducted by the Institute for Women's Policy Research, which
used data collected by the U.S. Bureau of Labor Statistics, U.S.
Department of Health and Human Services, California Employment
Development Department and U.S. Census Bureau to evaluate the
likely impact of one of the previous, almost identical bills
found, among other things: "If this bill becomes law,
California employers would pay just $1.3 million annually for
wages and associated costs to workers who take leave; savings to
employers would total $2.3 million annually, mainly from reduced
costs of turnover; and, workers and their families would
experience lower expenditures for health-care services, saving
$7 million annually." (Valuing Good Health in California: The
Costs and Benefits of the Healthy Families, Healthy Workplaces
Act of 2008, Institute for Women's Policy Research, April 2008.)
The author cites a Field Research poll from August 2008, which
shows that Californians overwhelmingly support guaranteed paid
sick days-73% of California adults surveyed stated that they
would support a law guaranteeing paid sick days for all
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Californian workers. This support crosses party, gender, and
ethnic lines. Moreover, 76% of those surveyed said that paid
sick days should be considered a basic worker right, like a
decent wage.
Proposition F (San Francisco Ordinance Chapter 12W) Requires
Paid Sick Leave of All San Francisco Employers : In 2006, San
Francisco voters approved Proposition F, the first law in the
nation that provided workers with the ability to earn and use
paid sick days. That measure was implemented and is enforced by
the San Francisco Office of Labor Standards Enforcement (OLSE).
In support of the ordinance's efficacy, OLSE's website cites a
2011 study of the city's paid sick day ordinance completed by
the Women's Policy Research Institute. The study, which
surveyed both San Francisco employers and employees, concluded
that the law is functioning well. It found, among other things,
that overall employer profitability did not suffer from the law,
with six out of seven employers reporting no negative effects on
productivity. Also, despite the availability of either five or
nine sick days under the law, one-quarter of employees of a
compliant employer used zero paid sick days, and the average
level of use was only three paid sick days during the previous
year.
Similar Efforts at the National, State and Federal Levels : Paid
sick days legislation has been proposed at the federal, state
and local levels. For several years, a federal Healthy Families
Act has been proposed that would ensure that all employees
working 30 or hours more per week have seven paid sick days a
year. At least fourteen states have proposed legislation for
paid sick days in recent years, but Connecticut is currently the
only state that requires private employers to provide paid sick
leave currently, and only for a limited class of employers.
There are no federal requirements for paid sick leave for either
public or private employers. As discussed above, a San
Francisco ordinance enacted in 2006 provides paid sick days for
all workers employed in the city.
As with prior measures, this bill would apply to both public and
private employers. In order to avoid any potential confusion on
the point, this bill applies to public employers explicitly,
although doing so is arguably unnecessary because the term
"employer" should be properly understood to apply to all
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employers unless otherwise limited.
ARGUMENTS IN SUPPORT : Supporters of this measure, including the
California Labor Federation and the SEIU, argue that millions of
workers in California cannot take a day off when they or someone
in their family falls ill. Under current state law, nothing
requires employers to provide paid sick days, and as a result,
roughly 39 percent of the workforce earns no sick leave benefits
whatsoever. That leaves seven million Californians with few
options when personal or family needs arise.
Supporters state that a worker without such leave is either
expected to work while sick, risking the health and safety of
co-workers and customers, or stay home and forego wages,
jeopardizing that worker's own ability to survive. This
impossible choice is as unfair as it is unnecessary and has no
place in today's economy.
They contend that this bill will grant all California workers
access to earned sick leave following 90 days of employment.
Employees will earn one hour of paid sick time for every 30
hours worked, and employers may cap available leave at three
days per year. Sick leave can be used to care for a sick family
member or as leave to allow domestic violence and sexual assault
survivors time to recover. The bill allows flexibility for
workers and employers covered by a collective bargaining
agreement, and the bill includes anti-retaliation language to
protect workers claiming this benefit.
ARGUMENTS IN OPPOSITION : Opponents, including the California
Chamber of Commerce, argue that while many employers voluntarily
offer sick leave for full-time employees, expanding this mandate
on all employers will create a huge burden on employers. For
example, many employers currently offer paid sick leave which
accrues on a per month or per pay period basis. However, this
bill requires them to completely change their existing policies
in order to mirror the accrual rate proposed under this bill.
Opponents also contend that the new posting and notice
requirements, with additional penalties for noncompliance, put
employers at risk of litigation.
Opponents raise particular concern about some of the enforcement
mechanisms contained in this bill, including the private right
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of action. They contend that under this provision, a union may
file a lawsuit against an employer on behalf of an employee,
thereby significantly expanding the scope and threat of civil
litigation against small and large employers. Opponents also
object to various penalties contained in the bill, arguing that,
while an employee should be made whole for any violation of the
law, the layering of additional penalties, such as treble
damages, is simply an unjustified windfall. Opponents also
object to the bill's creation of a rebuttable presumption of
retaliation, arguing that the burden will fall on the employer
to prove that employment decisions were valid, instead of the
burden falling on the employee to prove retaliation.
Opponents also contend that recent employer surveys of
jurisdictions that have adopted paid sick leave policies
indicated a negative impact on growth and jobs:
The Employment Policies Institute recently published a
limited study on the effects of Connecticut's Paid Sick
Leave law that went into place in 2012 and only applies to
larger employers and non-exempt service workers. Although
the survey was admittedly limited in the number of
businesses evaluated, the results indicate the new law has
had a negative impact on growth and jobs. Of the 156
businesses that responded to the survey, 31 of the
businesses had reduced other employee benefits to balance
the cost of the paid sick leave; 12 had reduced employee
hours; 6 had reduced employee wages; 19 companies had
raised their prices; 6 companies had laid off employees;
and, 16 companies stated that they would limit their
expansion in the state. Thirty-eight of the businesses
surveyed also indicated that they would hire fewer
employees as a direct result of the new law, while others
stated they planned to offer fewer raises.
Opponents conclude that rather than mandate new requirements,
the Legislature should incentivize employers to offer these
additional benefits by reducing costs in other areas. Among
other things, they suggest offsetting the burden on employers to
provide paid sick leave by providing small employers with a tax
credit for the amount expended each year on paid sick leave.
PRIOR LEGISLATION : AB 400 (Ma) of 2011 and AB 1000 (Ma and
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Skinner) of 2009 also aimed at dealing with the issue of paid
sick days. The most significant difference between this bill
and the previous bills is that this bill allows employers to
limit the amount of paid sick days used by employees to 3 days
per year. Previous bills only allowed employers to limit paid
sick day use to five or nine days per year (based on the size of
the employer). Aside from that difference, the bills were
substantially the same as this bill in that they would have
entitled an employee to paid sick days which would have been
accrued at a rate of no less than one hour for every 30 hours
worked. Employers also would have been required to provide paid
sick days, upon request, 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
abuse. The bills would have required employers to satisfy
specific posting and notice and recordkeeping requirements. The
bills were held on suspense in the Assembly Appropriations
Committee.
AB 2716 (Ma) of 2008 was identical to AB 1000. It was held on
suspense in the Senate Appropriations Committee.
Author's Technical Amendment. To better protect workers who
speak a language other than English, the author proposes the
following clarifying amendment:
247. (a) An employer shall give each employee written notice of
the requirements of this article in English , Spanish, Chinese,
the languages set forth in Civil Code section 1632, and any
other language spoken by at least 5 percent of the employees.
REGISTERED SUPPORT/OPPOSITION :
Support
Alameda Labor Council
American Federation of State, County and Municipal Employees
California Catholic Conference
California Employment Lawyers Association
California Labor Federation, AFL-CIO
California Nurses Association
California Partnership to End Domestic Violence
California Professional Firefighters
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California School Employees Association
California State Council of Service Employees International
Union
Consumer Attorneys of California
Consumer Federation of California
Glendale City Employees Association
Health Officers Association of California
9 to 5 National Association of Working Women
Organization of SMUD Employees
San Bernardino Public Employees
San Luis Obispo County Employees Association
Santa Rosa City Employees Association
United Farm Workers
Western Center on Law and Poverty
Opposition
Acclamation Insurance Management Services
Air Conditioning Trade Association
Alhambra Chamber of Commerce
Allied Managed Care
Associated Builders and Contractors - San Diego Chapter
Associated General Contractors
Association of California Healthcare Districts
Association of California Water Agencies
Brawley Chamber of Commerce
Brea Chamber of Commerce
California Chamber of Commerce
California Association of Joint Powers Authorities
California Association of Licensed Security Agencies, Guards and
Associates
California Association of Winegrape Growers
California Attractions and Parks Association
California Beer & Beverage Distributors
California Business Properties Association
California Business Roundtable
California Chapter of American Fence Association
California Employment Law Council
California Fence Contractors' Association
California Grocers Association
California Hotel & Lodging Association
California Independent Grocers Association
California Manufacturers and Technology Association
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California Newspaper Publishers Association
California Professional Association of Specialty Contractors
California Restaurant Association
California Retailers Association
California Special Districts Association
California State Association of Counties
California Travel Association
California Trucking Association
Chambers of Commerce Alliance of Ventura & Santa Barbara
Counties
Dana Point Chamber of Commerce
Desert Hot Springs Chamber of Commerce
El Centro Chamber of Commerce
Engineering Contractors' Association
Flasher Barricade Association
Fountain Valley Chamber of Commerce
Fullerton Chamber of Commerce
Greater Bakersfield Chamber of Commerce
Greater Conejo Valley Chamber of Commerce
Greater Fresno Area Chamber of Commerce
Greater Riverside Chambers of Commerce
Greater San Fernando Valley Chamber of Commerce
Huntington Beach Chamber of Commerce
League of California Cities
Lodi Chamber of Commerce
Long Beach Area Chamber of Commerce
Marin Builders Association
National Federation of Independent Business
National Right to Work Committee
Orange County Business Council
Oxnard Chamber of Commerce
Palm Desert Area Chamber of Commerce
Plumbing-Heating-Cooling Contractors Association of California
Porterville Chamber of Commerce
Redondo Beach Chamber of Commerce
Rural County Representatives of California
San Diego East County Chamber of Commerce
San Jose Silicon Valley Chamber of Commerce
Santa Clara Chamber of Commerce and Convention-Visitors Bureau
Simi Valley Chamber of Commerce
Southwest California Legislative Council
Tahoe Chamber of Commerce
Torrance Area Chamber of Commerce
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Turlock Chamber of Commerce
Urban Counties Caucus
Visalia Chamber of Commerce
Western Electrical Contractors Association
Wine Institute
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334