Amended in Assembly March 26, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 304


Introduced by Assembly Member Gonzalez

February 12, 2015


An act to amendbegin delete Section 233end deletebegin insert Sections 245.5, 246, and 248.5end insert of the Labor Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

AB 304, as amended, Gonzalez. Sickbegin delete leave.end deletebegin insert leave: accrual and limitations.end insert

begin insert

(1) The Healthy Workplaces, Healthy Families Act of 2014 provides, among other things, 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.

end insert
begin insert

This bill would require that the employee work for the same employer for 30 or more days within the previous 12 months in order to qualify for accrued sick leave under these provisions. This bill would exclude a retired annuitant of a public entity and a worker covered by the Railroad Unemployment Insurance Act, as specified, from the definition of employee under these provisions. The bill would also remove the definition of a health care provider under the act.

end insert
begin insert

(2) Existing law entitles an employee to use accrued paid sick days beginning on the 90th day of employment. Existing law permits an employer to limit an employee’s use of paid sick days to 24 hours or 3 days in each year of employment. Existing law requires an employer to provide an employee with written notice of the amount of paid sick leave available, or paid time off leave an employer provides in lieu of sick leave, as specified.

end insert
begin insert

The bill would authorize an employer to provide for employee sick leave accrual on a basis other than one hour for each 30 hours worked, provided that the accrual is on a regular basis and the employee will have 24 hours of accrued sick leave available by the 120th calender day of employment. The bill would permit an employer who provides unlimited sick leave to its employees to satisfy notice requirements by indicating “unlimited” on the employee’s itemized wage statement. The bill would provide that if the employee receives a different hourly rate when the accrued sick leave is taken, the rate of pay would be calculated in the same manner as the regular rate of pay for purposes of overtime. The bill would provide that an employer is not required to reinstate accrued paid time off to an employee, rehired within one year of separation from employment, that was paid out at the time of termination, resignation, or separation. The bill would also make technical and conforming changes.

end insert
begin delete

Existing law requires an employer who provides sick leave to employees, as specified, to allow the employees to use the sick leave to attend to the illness of a child, parent, spouse, or domestic partner.

end delete
begin delete

This bill would make nonsubstantive changes to this provision.

end delete

Vote: majority. Appropriation: no. Fiscal committee: begin deleteno end deletebegin insertyesend insert. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1begin insert

begin insertSECTION 1.end insert  

end insert

begin insertSection 245.5 of the end insertbegin insertLabor Codeend insertbegin insert is amended to
2read:end insert

3

245.5.  

As used in this article:

4(a) “Employee” does not include the following:

5(1) An employee covered by a valid collective bargaining
6agreement if the agreement expressly provides for the wages, hours
7of work, and working conditions of employees, and expressly
8provides for paid sick days or a paid leave or paid time off policy
9that permits the use of sick days for those employees, final and
10binding arbitration of disputes concerning the application of its
11paid sick days provisions, premium wage rates for all overtime
12hours worked, and regular hourly rate of pay of not less than 30
13percent more than the state minimum wage rate.

P3    1(2) An employee in the construction industry covered by a valid
2collective bargaining agreement if the agreement expressly provides
3for the wages, hours of work, and working conditions of
4employees, premium wage rates for all overtime hours worked,
5and regular hourly pay of not less than 30 percent more than the
6state minimum wage rate, and the agreement either (A) was entered
7into before January 1, 2015, or (B) expressly waives the
8requirements of this article in clear and unambiguous terms. For
9purposes of this subparagraph, “employee in the construction
10industry” means an employee performing onsite work associated
11with construction, including work involving alteration, demolition,
12building, excavation, renovation, remodeling, maintenance,
13improvement, repair work, and any other work as described by
14Chapter 9 (commencing with Section 7000) of Division 3 of the
15Business and Professions Code, and other similar or related
16occupations or trades.

17(3) A provider of in-home supportive services under Section
1814132.95, 14132.952, or 14132.956 of, or Article 7 (commencing
19with Section 12300) of Chapter 3 of Part 3 of Division 9 of, the
20Welfare and Institutions Code.

21(4) An individual employed by an air carrier as a flight deck or
22cabin crew member that is subject to the provisions of Title II of
23the federal Railway Labor Act (45 U.S.C. 181 et seq.), provided
24that the individual is provided with compensated time off equal to
25or exceeding the amount established in paragraph (1) of subdivision
26(b) of Section 246.

begin insert

27(5) An employee of either the state, city, county, city and county,
28district, or any other public entity who is a recipient of a retirement
29allowance and employed without reinstatement into his or her
30respective retirement system pursuant to either Article 8
31 (commencing with Section 21220) of Chapter 12 of Part 3 of
32Division 5 of Title 2 of the Government Code, or Article 8
33(commencing with Section 31680) of Chapter 3 of Part 3 of
34Division 4 of Title 3 of the Government Code.

end insert
begin insert

35(6) An employee as defined by subsection (d) of Section 1 of the
36Railroad Unemployment Insurance Act (45 U.S.C. 351 et seq.),
37provided that the individual is provided with compensated time
38off equal to or exceeding the amount established in paragraph (1)
39of subdivision (b) of Section 246.

end insert

P4    1(b) “Employer” means any person employing another under
2any appointment or contract of hire and includes the state, political
3subdivisions of the state, and municipalities.

4(c) “Family member” means any of the following:

5(1) A child, which for purposes of this article means a biological,
6adopted, or foster child, stepchild, legal ward, or a child to whom
7the employee stands in loco parentis. This definition of a child is
8applicable regardless of age or dependency status.

9(2) A biological, adoptive, or foster parent, stepparent, or legal
10guardian of an employee or the employee’s spouse or registered
11domestic partner, or a person who stood in loco parentis when the
12employee was a minor child.

13(3) A spouse.

14(4) A registered domestic partner.

15(5) A grandparent.

16(6) A grandchild.

17(7) A sibling.

begin delete

18(d) “Health care provider” has the same meaning as defined in
19paragraph (6) of subdivision (c) of Section 12945.2 of the
20Government Code.

end delete
begin delete

21(e)

end delete

22begin insert(d)end insert “Paid sick days” means time that is compensated at the same
23wage as the employee normally earns during regular work hours
24and is provided by an employer to an employee for the purposes
25described in Section 246.5.

26begin insert

begin insertSEC. 2.end insert  

end insert

begin insertSection 246 of the end insertbegin insertLabor Codeend insertbegin insert is amended to read:end insert

27

246.  

(a) An employee who, on or after July 1, 2015, works in
28Californiabegin insert for the same employerend insert for 30 or more days within a year
29from the commencement of employment is entitled to paid sick
30days as specified in this section.

31(b) (1) An employee shall accrue paid sick days at the rate of
32not less than one hour per every 30 hours worked, beginning at
33the commencement of employment or the operative date of this
34article, whichever is laterbegin insert, subject to the use and accrual limitations
35set forth in this sectionend insert
.

36(2) An employee who is exempt from overtime requirements
37as an administrative, executive, or professional employee under a
38wage order of the Industrial Welfare Commission is deemed to
39work 40 hours per workweek for the purposes of this section,
40unless the employee’s normal workweek is less than 40 hours, in
P5    1which case the employee shall accrue paid sick days based upon
2that normal workweek.

3(c) An employee shall be entitled to use accrued paid sick days
4beginning on the 90th day of employment, after which day the
5employee may use paid sick days as they are accrued.

6(d) Accrued paid sick days shall carry over to the following
7year of employment. However, an employer may limit an
8employee’s use ofbegin insert accruedend insert paid sick days to 24 hours or three days
9in each year of employment. This section shall be satisfied and no
10accrual or carry over is required if the full amount of leave is
11received at the beginning of eachbegin insert calendarend insert year,begin insert year of
12employment, or 12-month basisend insert
in accordance with subdivision
13(e).begin insert end insertbegin insertThe term “full amount of leave” means three days or 24 hours.end insert

14(e) An employer is not required to provide additional paid sick
15days pursuant to this section if the employer has a paid leave policy
16or paid time off policy, the employer makes available an amount
17of leave that may be used for the same purposes and under the
18same conditions as specified in this section, and the policy does
19either of the following:

20(1) Satisfies the accrual, carry over, and use requirements of
21this section.

22(2) Provides no less than 24 hours or three days of paid sick
23leave, or equivalent paid leave or paid time off, for employee use
24for each year of employment or calendar year or 12-month basis.
25begin insert An employer may use a different accrual method, other than
26providing one hour per every 30 hours worked, provided that the
27accrual is on a regular basis so that employee has no less than 24
28hours of accrued sick leave or paid time off by the 120th calendar
29day of employment or each calendar year, or each 12end insert
begin insert-month basis.end insert

begin insert

30(3) An employer may satisfy the accrual requirements of this
31section by providing not less than 24 hours or 3 days of paid sick
32leave that is available to the employee to use by the completion of
33his or her 120th calendar day of employment.

end insert

34(f) (1) Except as specified in paragraph (2), an employer is not
35required to provide compensation to an employee for accrued,
36unused paid sick days upon termination, resignation, retirement,
37or other separation from employment.

38(2) If an employee separates from an employer and is rehired
39by the employer within one year from the date of separation,
40previously accrued and unused paid sick days shall be reinstated.
P6    1The employee shall be entitled to use those previously accrued
2and unused paid sick days and to accrue additional paid sick days
3uponbegin delete rehiring.end deletebegin insert rehiring, end insertbegin insertsubject to the use and accrual limitations
4set forth in this section. An employer is not required to reinstate
5accrued paid time off to an employee that was paid out at the time
6of termination, resignation, or separation of employment.end insert

7(g) An employer may lend paid sick days to an employee in
8advance of accrual, at the employer’s discretion and with proper
9documentation.

10(h) An employer shall provide an employee with written notice
11that sets forth the amount of paid sick leave available, or paid time
12off leave an employer provides in lieu of sick leave, for use on
13either the employee’s itemized wage statement described in Section
14226 or in a separate writing provided on the designated pay date
15with the employee’s payment of wages.begin insert If an employer provides
16unlimited paid sick leave or unlimited paid time off to an employee,
17the employer may satisfy this section by indicating on the notice
18or the employee’s itemized wage statement “unlimited.”end insert
The
19penalties described in this article for a violation of this subdivision
20shall be in lieu of the penalties for a violation of Section 226.

21(i) An employer has no obligation under this section to allow
22an employee’s total accrual of paid sick leave to exceed 48 hours
23or 6 days, provided that an employee’s rights to accrue and use
24paid sick leavebegin delete under this sectionend delete are notbegin delete otherwiseend delete limitedbegin insert other
25than as allowed under this sectionend insert
.

26(j) An employee may determine how much paid sick leave he
27or she needs to use, provided that an employer may set a reasonable
28minimum increment, not to exceed two hours, for the use of paid
29sick leave.

30(k) The rate of pay shall be the employee’s hourly wage. If the
31employeebegin delete in the 90 days of employment before taking accrued
32sick leave had different hourly pay rates, was paid by commission
33or piece rate, or was a nonexempt salaried employee, then the rate
34of pay shall be calculated by dividing the employee’s total wages,
35not including overtime premium pay, by the employee’s total hours
36worked in the full pay periods of the prior 90 days of employment.end delete

37begin insert receives different hourly rates in the pay period when the accrued
38paid sick leave is taken, then the rate of pay shall be calculated in
39the same manner as the regular rate of pay for purposes of
40overtime.end insert

P7    1(l) If the need for paid sick leave is foreseeable, the employee
2shall provide reasonable advance notification. If the need for paid
3sick leave is unforeseeable, the employee shall provide notice of
4the need for the leave as soon as practicable.

5(m) An employer shall provide payment for sick leave taken by
6an employee no later than the payday for the next regular payroll
7period after the sick leave was taken.

8begin insert

begin insertSEC. 3.end insert  

end insert

begin insertSection 248.5 of the end insertbegin insertLabor Codeend insertbegin insert is amended to read:end insert

9

248.5.  

(a) The Labor Commissioner shall enforce this article,
10including investigating an alleged violation, and ordering
11appropriate temporary relief to mitigate the violation or to maintain
12the status quo pending the completion of a full investigation or
13hearing.

14(b) (1) If the Labor Commissioner, after a hearing that contains
15adequate safeguards to ensure that the parties are afforded due
16process, determines that a violation of this article has occurred, he
17or she may order any appropriate relief, including reinstatement,
18backpay, the payment of sick days unlawfully withheld, and the
19payment of an additional sum in the form of an administrative
20penalty to an employee or other person whose rights under this
21article were violated.

22(2) If paid sick days were unlawfully withheld, the dollar amount
23of paid sick days withheld from the employee multiplied by three,
24or two hundred fifty dollars ($250), whichever amount is greater,
25but not to exceed an aggregate penalty of four thousand dollars
26($4,000), shall be included in the administrative penalty.

27(3) If a violation of this article results in other harm to the
28employee or person, such as discharge from employment, or
29otherwise results in a violation of the rights of the employee or
30person, the administrative penalty shall include a sum of fifty
31dollars ($50) for each day or portion thereof that the violation
32occurred or continued, not to exceed an aggregate penalty of four
33thousand dollars ($4,000).

34(c) Where prompt compliance by an employer is not
35forthcoming, the Labor Commissioner may take any appropriate
36enforcement action to secure compliance, including the filing of
37a civil action. In compensation to the state for the costs of
38investigating and remedying the violation, the commissioner may
39order the violating employer to pay to the state a sum of not more
40than fifty dollars ($50) for each day or portion of a day a violation
P8    1occurs or continues for each employee or other person whose rights
2under this article were violated.

3(d) An employee or other person may report to the Labor
4Commissioner a suspected violation of this article. The
5commissioner shall encourage reporting pursuant to this
6subdivision by keeping confidential, to the maximum extent
7permitted by applicable law, the name and other identifying
8information of the employee or person reporting the violation.
9However, the commissioner may disclose that person’s name and
10identifying information as necessary to enforce this article or for
11other appropriate purposes, upon the authorization of that person.

12(e) The Labor Commissioner or the Attorney General may bring
13a civil action in a court of competent jurisdiction against the
14employer or other person violating this article and, upon prevailing,
15shall be entitled to collect legal or equitable relief on behalf of the
16aggrieved as may be appropriate to remedy the violation, including
17reinstatement, backpay, the payment of sick days unlawfully
18withheld, the payment of an additional sum, not to exceed an
19aggregate penalty of four thousand dollars ($4,000), as liquidated
20damages in the amount of fifty dollars ($50) to each employee or
21person whose rights under this article were violated for each day
22or portion thereof that the violation occurred or continued, plus,
23if the employer has unlawfully withheld paid sick days to an
24employee, the dollar amount of paid sick days withheld from the
25employee multiplied by three; or two hundred fifty dollars ($250),
26whichever amount is greater; and reinstatement in employment or
27injunctive relief; and further shall be awarded reasonable attorney’s
28fees and costs, provided, however, thatbegin delete any person orend deletebegin insert anend insert entity
29enforcing this article on behalf of the public as provided for under
30applicable state law shall, upon prevailing, be entitled only to
31equitable, injunctive, or restitutionary relief, and reasonable
32attorney’s fees and costs.

33(f) In an administrative or civil action brought under this article,
34the Labor Commissioner or court, as the case may be, shall award
35interest on all amounts due and unpaid at the rate of interest
36specified in subdivision (b) of Section 3289 of the Civil Code.

37(g) The remedies, penalties, and procedures provided under this
38article are cumulative.

39(h) An employer shall not be assessed any penalty or liquidated
40damages under this article due to an isolated and unintentional
P9    1payroll error or written notice error that is a clerical or an
2 inadvertent mistake regarding the accrual or available use of paid
3sick leave. In reviewing for compliance with this section, the
4factfinder may consider as a relevant factor whether the employer,
5prior to an alleged violation, has adopted and is in compliance with
6a set of policies, procedures, and practices that fully comply with
7this section.

begin delete
8

SECTION 1.  

Section 233 of the Labor Code is amended to
9read:

10

233.  

(a) Any employer who provides sick leave for employees
11shall permit an employee to use, in any calendar year, the
12employee’s accrued and available sick leave entitlement, in an
13amount not less than the sick leave that would be accrued during
14six months at the employee’s then current rate of entitlement, to
15attend to an illness of a child, parent, spouse, or domestic partner
16of the employee. All conditions and restrictions placed by the
17employer upon the use by an employee of sick leave also shall
18apply to the use by an employee of sick leave to attend to an illness
19of his or her child, parent, spouse, or domestic partner. This section
20does not extend the maximum period of leave to which an
21employee is entitled under Section 12945.2 of the Government
22Code or under the federal Family and Medical Leave Act of 1993
23(29 U.S.C. Sec. 2606 et seq.), regardless of whether the employee
24receives sick leave compensation during that leave.

25(b) As used in this section:

26(1) “Child” means a biological, foster, or adopted child, a
27stepchild, a legal ward, a child of a domestic partner, or a child of
28a person standing in loco parentis.

29(2) “Employer” means a person employing another under an
30appointment or contract of hire and includes the state, political
31subdivisions of the state, and municipalities.

32(3) “Parent” means a biological, foster, or adoptive parent, a
33stepparent, or a legal guardian.

34(4) “Sick leave” means accrued increments of compensated
35leave provided by an employer to an employee as a benefit of the
36employment for use by the employee during an absence from the
37employment for any of the following reasons:

38(A) The employee is physically or mentally unable to perform
39his or her duties due to illness, injury, or a medical condition of
40the employee.

P10   1(B) The absence is for the purpose of obtaining professional
2diagnosis or treatment for a medical condition of the employee.

3(C) The absence is for other medical reasons of the employee,
4such as pregnancy or obtaining a physical examination.

5“Sick leave” does not include any benefit provided under an
6employee welfare benefit plan subject to the federal Employee
7Retirement Income Security Act of 1974 (Public Law 93-406, as
8amended) and does not include any insurance benefit, workers’
9compensation benefit, unemployment compensation disability
10benefit, or benefit not payable from the employer’s general assets.

11(c) No employer shall deny an employee the right to use sick
12leave or discharge, threaten to discharge, demote, suspend, or in
13any manner discriminate against an employee for using, or
14attempting to exercise the right to use, sick leave to attend to an
15illness of a child, parent, spouse, or domestic partner of the
16employee.

17(d)  An employee aggrieved by a violation of this section shall
18be entitled to reinstatement and actual damages or one day’s pay,
19whichever is greater, and to appropriate equitable relief.

20(e) Upon the filing of a complaint by an employee, the Labor
21Commissioner shall enforce this section in accordance with the
22provisions of Chapter 4 (commencing with Section 79) of Division
231, including, Sections 92, 96.7, 98, and 98.1 to 98.8, inclusive.
24Alternatively, an employee may bring a civil action for the
25remedies provided by this section in a court of competent
26jurisdiction. If the employee prevails, the court may award
27reasonable attorney’s fees.

28(f) The rights and remedies specified in this section are
29cumulative and nonexclusive and are in addition to any other rights
30or remedies afforded by contract or under other provisions of law.

end delete


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