BILL NUMBER: AB 304 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 26, 2015
INTRODUCED BY Assembly Member Gonzalez
FEBRUARY 12, 2015
An act to amend Section 233 Sections
245.5, 246, and 248.5 of the Labor Code, relating to
employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 304, as amended, Gonzalez. Sick leave.
leave: accrual and limitations.
(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.
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.
(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.
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.
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.
This bill would make nonsubstantive changes to this provision.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 245.5 of the Labor
Code is amended to read:
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) A provider of in-home supportive services under Section
14132.95, 14132.952, or 14132.956 of, or Article 7 (commencing with
Section 12300) of Chapter 3 of Part 3 of Division 9 of, the Welfare
and Institutions Code.
(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.
(5) An employee of either the state, city, county, city and
county, district, or any other public entity who is a recipient of a
retirement allowance and employed without reinstatement into his or
her respective retirement system pursuant to either Article 8
(commencing with Section 21220) of Chapter 12 of Part 3 of Division 5
of Title 2 of the Government Code, or Article 8 (commencing with
Section 31680) of Chapter 3 of Part 3 of Division 4 of Title 3 of the
Government Code.
(6) An employee as defined by subsection (d) of Section 1 of the
Railroad Unemployment Insurance Act (45 U.S.C. 351 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)
(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.
SEC. 2. Section 246 of the Labor Code
is amended to read:
246. (a) An employee who, on or after July 1, 2015, works in
California for the same employer 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 , subject to the use and accrual limitations
set forth in this section .
(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
accrued 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 calendar year, year of
employment, or 12-month basis in accordance with subdivision
(e). The term "full amount of leave" means three days
or 24 hours.
(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.
An employer may use a different accrual method, other than providing
one hour per every 30 hours worked, provided that the accrual is on a
regular basis so that employee has no less than 24 hours of accrued
sick leave or paid time off by the 120th calendar day of employment
or each calendar year, or each 12 -month basis.
(3) An employer may satisfy the accrual requirements of this
section by providing not less than 24 hours or 3 days of paid sick
leave that is available to the employee to use by the completion of
his or her 120th calendar day of employment.
(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. rehiring, subject to the use and
accrual limitations set forth in this section. An employer is not
required to reinstate accrued paid time off to an employee that was
paid out at the time of termination, resignation, or separation of
employment.
(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. If an employer provides unlimited
paid sick leave or unlimited paid time off to an employee, the
employer may satisfy this section by indicating on the notice or the
employee's itemized wage statement "unlimited." 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 other than as allowed under this
section .
(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.
receives different hourly rates in the pay period when the
accrued paid sick leave is taken, then the rate of pay shall be
calculated in the same manner as the regular rate of pay for purposes
of overtime.
(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.
SEC. 3. Section 248.5 of the Labor Code
is amended to read:
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 an aggregate penalty of 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 an aggregate penalty of 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 an
aggregate penalty of 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
an 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.
(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.
SECTION 1. Section 233 of the Labor Code is
amended to read:
233. (a) Any employer who provides sick leave for employees shall
permit an employee to use, in any calendar year, the employee's
accrued and available sick leave entitlement, in an amount not less
than the sick leave that would be accrued during six months at the
employee's then current rate of entitlement, to attend to an illness
of a child, parent, spouse, or domestic partner of the employee. All
conditions and restrictions placed by the employer upon the use by an
employee of sick leave also shall apply to the use by an employee of
sick leave to attend to an illness of his or her child, parent,
spouse, or domestic partner. This section does not extend the maximum
period of leave to which an employee is entitled under Section
12945.2 of the Government Code or under the federal Family and
Medical Leave Act of 1993 (29 U.S.C. Sec. 2606 et seq.), regardless
of whether the employee receives sick leave compensation during that
leave.
(b) As used in this section:
(1) "Child" means a biological, foster, or adopted child, a
stepchild, a legal ward, a child of a domestic partner, or a child of
a person standing in loco parentis.
(2) "Employer" means a person employing another under an
appointment or contract of hire and includes the state, political
subdivisions of the state, and municipalities.
(3) "Parent" means a biological, foster, or adoptive parent, a
stepparent, or a legal guardian.
(4) "Sick leave" means accrued increments of compensated leave
provided by an employer to an employee as a benefit of the employment
for use by the employee during an absence from the employment for
any of the following reasons:
(A) The employee is physically or mentally unable to perform his
or her duties due to illness, injury, or a medical condition of the
employee.
(B) The absence is for the purpose of obtaining professional
diagnosis or treatment for a medical condition of the employee.
(C) The absence is for other medical reasons of the employee, such
as pregnancy or obtaining a physical examination.
"Sick leave" does not include any benefit provided under an
employee welfare benefit plan subject to the federal Employee
Retirement Income Security Act of 1974 (Public Law 93-406, as
amended) and does not include any insurance benefit, workers'
compensation benefit, unemployment compensation disability benefit,
or benefit not payable from the employer's general assets.
(c) No employer shall deny an employee the right to use sick leave
or discharge, threaten to discharge, demote, suspend, or in any
manner discriminate against an employee for using, or attempting to
exercise the right to use, sick leave to attend to an illness of a
child, parent, spouse, or domestic partner of the employee.
(d) An employee aggrieved by a violation of this section shall be
entitled to reinstatement and actual damages or one day's pay,
whichever is greater, and to appropriate equitable relief.
(e) Upon the filing of a complaint by an employee, the Labor
Commissioner shall enforce this section in accordance with the
provisions of Chapter 4 (commencing with Section 79) of Division 1,
including, Sections 92, 96.7, 98, and 98.1 to 98.8, inclusive.
Alternatively, an employee may bring a civil action for the remedies
provided by this section in a court of competent jurisdiction. If the
employee prevails, the court may award reasonable attorney's fees.
(f) The rights and remedies specified in this section are
cumulative and nonexclusive and are in addition to any other rights
or remedies afforded by contract or under other provisions of law.