AB 304, as amended, Gonzalez. Sick 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.
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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.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 245.5 of the Labor Code is amended to
As used in this article:
P3 1(a) “Employee” does not include the following:
2(1) An employee covered by a valid collective bargaining
3agreement if the agreement expressly provides for the wages, hours
4of work, and working conditions of employees, and expressly
5provides for paid sick days or a paid leave or paid time off policy
6that permits the use of sick days for those employees, final and
7binding arbitration of disputes concerning the application of its
8paid sick days provisions, premium wage rates for all overtime
9hours worked, and regular hourly rate of pay of not less than 30
10percent more than the state minimum wage rate.
11(2) An employee in the construction industry covered by a valid
12collective bargaining agreement if the agreement expressly provides
13for the wages, hours of work, and working conditions of
14employees, premium wage rates for all overtime hours worked,
15and regular hourly pay of not less than 30 percent more than the
16state minimum wage rate, and the agreement either (A) was entered
17into before January 1, 2015, or (B) expressly waives the
18requirements of this article in clear and unambiguous terms. For
19purposes of this subparagraph, “employee in the construction
20industry” means an employee performing onsite work associated
21with construction, including work involving alteration, demolition,
22building, excavation, renovation, remodeling, maintenance,
23improvement, repair work, and any other work as described by
24Chapter 9 (commencing with Section 7000) of Division 3 of the
25Business and Professions Code, and other similar or related
26occupations or trades.
27(3) A provider of in-home supportive services under Section
2814132.95, 14132.952, or 14132.956 of, or Article 7 (commencing
29with Section 12300) of Chapter 3 of Part 3 of Division 9 of, the
30Welfare and Institutions Code.
31(4) An individual employed by an air carrier as a flight deck or
32cabin crew member that is subject to the provisions of Title II of
33the federal Railway Labor Act (45 U.S.C.
begin delete 181end delete et seq.),
34provided that the individual is provided with compensated time
35off equal to or exceeding the amount established in paragraph (1)
36of subdivision (b) of Section 246.
37(5) An employee of either the state, city, county, city and county,
38district, or any other public entity who is a recipient of a retirement
39allowance and employed without reinstatement into his or her
40respective retirement system pursuant to either Article 8
P4 1 (commencing with Section 21220) of Chapter 12 of Part 3 of
2Division 5 of Title 2 of the Government Code, or Article 8
3(commencing with Section 31680) of Chapter 3 of Part 3 of
4Division 4 of Title 3 of the Government Code.
5(6) An employee as defined by subsection (d) of Section
begin delete 1end delete
6 of the Railroad Unemployment Insurance Act
begin delete (45 U.S.C. 351 et
7seq.), provided that the individual is provided with compensated
8time off equal to or exceeding the amount established in paragraph
9(1) of subdivision (b) of Section 246.end delete
10(b) “Employer” means any person employing another under
11any appointment or contract of hire and includes the state, political
12subdivisions of the state, and municipalities.
13(c) “Family member” means any of the following:
14(1) A child, which for purposes of this article means a biological,
15adopted, or foster child, stepchild, legal ward, or a child to whom
16the employee stands in loco parentis. This definition of a child is
17applicable regardless of age or dependency status.
18(2) A biological, adoptive, or foster parent, stepparent, or legal
19guardian of an employee or the employee’s spouse or registered
20domestic partner, or a person who stood in loco parentis when the
21employee was a minor child.
22(3) A spouse.
23(4) A registered domestic partner.
24(5) A grandparent.
25(6) A grandchild.
26(7) A sibling.
27(d) “Paid sick days” means time that is compensated at the same
28wage as the employee normally earns during regular work hours
29and is provided by an employer to an employee for the purposes
30described in Section 246.5.
Section 246 of the Labor Code is amended to read:
(a) An employee who, on or after July 1, 2015, works in
33California for the same employer for 30 or more days within a
34year from the commencement of employment is entitled to paid
35sick days as specified in this section.
36(b) (1) An employee shall accrue paid sick days at the rate of
37not less than one hour per every 30 hours worked, beginning at
38the commencement of employment or the operative date of this
39article, whichever is later, subject to the use and accrual limitations
40set forth in this section.
P5 1(2) An employee who is exempt from overtime requirements
2as an administrative, executive, or professional employee under a
3wage order of the Industrial Welfare Commission is deemed to
4work 40 hours per workweek for the purposes of this section,
5unless the employee’s normal workweek is less than 40 hours, in
6which case the employee shall accrue paid sick days based upon
7that normal workweek.
8(c) An employee shall be entitled to use accrued paid sick days
9beginning on the 90th day of employment, after which day the
10employee may use paid sick days as they are accrued.
11(d) Accrued paid sick days shall carry over to the following
12year of employment. However, an employer may limit an
13employee’s use of accrued paid sick days to 24 hours or three days
14in each year of employment. This section shall be satisfied and no
15accrual or carry over is required if the full amount of leave is
16received at the beginning of each calendar year, year of
17employment, or 12-month basis in accordance with subdivision
18(e). The term “full amount of leave” means three days or 24 hours.
19(e) An employer is not required to provide additional paid sick
20days pursuant to this section if the employer has a paid leave policy
21or paid time off policy, the employer makes available an amount
22of leave that may be used for the same purposes and under the
23same conditions as specified in this section, and the policy does
24either of the following:
25(1) Satisfies the accrual, carry over, and use requirements of
27(2) Provides no less than 24 hours or three days of paid sick
28leave, or equivalent paid leave or paid time off, for employee use
begin delete forend delete each year of begin delete employment orend delete
begin delete yearend delete or 12-month begin delete basisend delete. begin delete An employer may
31use a different accrual method, other than providing one hour per
32every 30 hours worked, provided that the accrual is on a regular
33basis so that employee has no less than 24 hours of accrued sick
34leave or paid time off by the 120th calendar day of employment
35or each calendar year, or each 12-month basis.end delete
36(3) An employer may
satisfy the accrual requirements of this
37section by providing not less than 24 hours or 3 days of paid sick
38leave that is available to the employee to use by the completion
39of his or her 120th calendar day of employment.
P6 1(f) (1) Except as specified in paragraph (2), an employer is not
2required to provide compensation to an employee for accrued,
3unused paid sick days upon termination, resignation, retirement,
4or other separation from employment.
5(2) If an employee separates from an employer and is rehired
6by the employer within one year from the date of separation,
7previously accrued and unused paid sick days shall be reinstated.
8The employee shall be entitled to use those previously accrued
9and unused paid sick days and to accrue additional paid sick days
10upon rehiring, subject to the use and accrual limitations set forth
11in this section. An employer is not required to reinstate accrued
12paid time off to an employee that was paid out at the time of
13termination, resignation, or separation of employment.
14(g) An employer may lend paid sick days to an employee in
15advance of accrual, at the employer’s discretion and with proper
17(h) An employer shall provide an employee with written notice
18that sets forth the amount of paid sick leave available, or paid time
19off leave an employer provides in lieu of sick leave, for use on
20either the employee’s itemized wage statement described in Section
21226 or in a separate writing provided on the designated pay date
22with the employee’s payment of wages. If an employer provides
23unlimited paid sick leave or unlimited paid time off to an employee,
24the employer may satisfy this section by indicating on the notice
25or the employee’s itemized wage statement “unlimited.” The
26penalties described in this article for a violation of this subdivision
27shall be in lieu of the penalties for a violation of Section 226.
31(i) An employer has no obligation under this section to allow
32an employee’s total accrual of paid sick leave to exceed 48 hours
33or 6 days, provided that an employee’s rights to accrue and use
34paid sick leave are not limited other than as allowed under this
36(j) An employee may determine how much paid sick leave he
37or she needs to use, provided that an employer may set a reasonable
38minimum increment, not to exceed two hours, for the use of paid
P7 1(k) The rate of pay shall be the employee’s hourly wage. If the
2employee receives different hourly rates in the pay period when
3the accrued paid sick leave is taken, then the rate of pay shall be
4calculated in the same manner as the regular rate of pay for
5purposes of overtime.
6(l) If the need for paid sick leave is foreseeable, the employee
7shall provide reasonable advance notification. If the need for paid
8sick leave is unforeseeable, the employee shall provide notice of
9the need for the leave as soon as practicable.
10(m) An employer shall provide payment for sick leave taken by
11an employee no later than the payday for the next regular payroll
12period after the sick leave was taken.
Section 248.5 of the Labor Code is amended to read:
(a) The Labor Commissioner shall enforce this article,
15including investigating an alleged violation, and ordering
16appropriate temporary relief to mitigate the violation or to maintain
17the status quo pending the completion of a full investigation or
19(b) (1) If the Labor Commissioner, after a hearing that contains
20adequate safeguards to ensure that the parties are afforded due
21process, determines that a violation of this article has occurred, he
22or she may order any appropriate relief, including reinstatement,
23backpay, the payment of sick days unlawfully withheld, and the
24payment of an additional sum in the form of an administrative
25penalty to an employee or other person whose rights under this
26article were violated.
27(2) If paid sick days were unlawfully withheld, the dollar amount
28of paid sick days withheld from the employee multiplied by three,
29or two hundred fifty dollars ($250), whichever amount is greater,
30but not to exceed an aggregate penalty of four thousand dollars
31($4,000), shall be included in the administrative penalty.
32(3) If a violation of this article results in other harm to the
33employee or person, such as discharge from employment, or
34otherwise results in a violation of the rights of the employee or
35person, the administrative penalty shall include a sum of fifty
36dollars ($50) for each day or portion thereof that the violation
37occurred or continued, not to exceed an aggregate penalty of four
38thousand dollars ($4,000).
39(c) Where prompt compliance by an employer is not
40forthcoming, the Labor Commissioner may take any appropriate
P8 1enforcement action to secure compliance, including the filing of
2a civil action. In compensation to the state for the costs of
3investigating and remedying the violation, the commissioner may
4order the violating employer to pay to the state a sum of not more
5than fifty dollars ($50) for each day or portion of a day a violation
6occurs or continues for each employee or other person whose rights
7under this article were violated.
8(d) An employee or other person may report to the Labor
9Commissioner a suspected violation of this article. The
10commissioner shall encourage reporting pursuant to this
11subdivision by keeping confidential, to the maximum extent
12permitted by applicable law, the name and other identifying
13information of the employee or person reporting the violation.
14However, the commissioner may disclose that person’s name and
15identifying information as necessary to enforce this article or for
16other appropriate purposes, upon the authorization of that person.
17(e) The Labor Commissioner or the Attorney General may bring
18a civil action in a court of competent jurisdiction against the
19employer or other person violating this article and, upon prevailing,
20shall be entitled to collect legal or equitable relief on behalf of the
21aggrieved as may be appropriate to remedy the violation, including
22reinstatement, backpay, the payment of sick days unlawfully
23withheld, the payment of an additional sum, not to exceed an
24aggregate penalty of four thousand dollars ($4,000), as liquidated
25damages in the amount of fifty dollars ($50) to each employee or
26person whose rights under this article were violated for each day
27or portion thereof that the violation occurred or continued, plus,
28if the employer has unlawfully withheld paid sick days to an
29employee, the dollar amount of paid sick days withheld from the
30employee multiplied by three; or two hundred fifty dollars ($250),
31whichever amount is greater; and reinstatement in employment or
32injunctive relief; and further shall be awarded reasonable attorney’s
33fees and costs, provided, however, that an entity enforcing this
34article on behalf of the public as provided for under applicable
35state law shall, upon prevailing, be entitled only to equitable,
36injunctive, or restitutionary relief, and reasonable attorney’s fees
38(f) In an administrative or civil action brought under this article,
39the Labor Commissioner or court, as the case may be, shall award
P9 1interest on all amounts due and unpaid at the rate of interest
2specified in subdivision (b) of Section 3289 of the Civil Code.
3(g) The remedies, penalties, and procedures provided under this
4article are cumulative.
5(h) An employer shall not be assessed any penalty or liquidated
6damages under this article due to an isolated and unintentional
7payroll error or written notice error that is a clerical or an
8 inadvertent mistake regarding the accrual or available use of paid
9sick leave. In reviewing for compliance with this section, the
10factfinder may consider as a relevant factor whether the employer,
11prior to an alleged violation, has adopted and is in compliance with
12a set of policies, procedures, and practices that fully comply with