AB 304, as amended, Gonzalez. Sick leave: accrual and limitations.
(1) Theend delete
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.end delete
(2) Existingend delete
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. Existing law provides 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, the employer makes available an amount of leave for specified uses, and the policy either satisfies specified accrual, carry over, and use requirements or provides no less than 24 hours or 3 days of paid sick leave for each year of employment or calendar year or 12-month basis.
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.end delete
This bill would, for specified industries, delay the application of the notice requirement. 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.
begin delete 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 provide 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, the employer makes available an amount of leave for specified uses, and the policy either satisfies specified accrual, carry over, and use
requirements or provides for no less than 24 hours or 3 days of paid sick leave at the beginning of each year of employment, calendar year, or 12-month period.end delete 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:
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.
14(2) An employee in the construction industry covered by a valid
15collective bargaining agreement if the agreement expressly provides
16for the wages, hours of work, and working conditions of
17employees, premium wage rates for all overtime hours worked,
18and regular hourly pay of not less than 30 percent more than the
19state minimum wage rate, and the agreement either (A) was entered
20into before January 1, 2015, or (B) expressly waives the
21requirements of this article in clear and unambiguous terms. For
22purposes of this subparagraph, “employee in the construction
23industry” means an employee performing onsite work associated
24with construction, including work involving alteration, demolition,
25building, excavation, renovation, remodeling, maintenance,
26improvement, repair work, and any other work as described by
27Chapter 9 (commencing with Section 7000) of Division 3 of the
28Business and Professions Code, and other similar or related
29occupations or trades.
30(3) A provider of in-home supportive services under Section
3114132.95, 14132.952, or 14132.956 of, or Article 7 (commencing
32with Section 12300) of Chapter 3 of Part 3 of Division 9 of, the
33Welfare and Institutions Code.
34(4) An individual employed by an air carrier as a flight deck or
35cabin crew member that is subject to the provisions of Title II of
36the federal Railway Labor Act (45 U.S.C. 151 et seq.),
37provided that the individual is provided with compensated time
P4 1off equal to or exceeding the amount established in paragraph (1)
2of subdivision (b) of Section 246.
3(5) An employee of either the state, city, county, city and county,
4district, or any other public entity who is a recipient of a retirement
5allowance and employed without reinstatement into his or her
6respective retirement system pursuant to either Article 8
7 (commencing with Section 21220) of Chapter 12 of Part 3 of
8Division 5 of Title 2 of the Government Code, or Article 8
9(commencing with Section 31680) of Chapter 3 of Part 3 of
10Division 4 of Title 3 of the Government Code.
5 11(6)end delete
12 An employee as defined by subsection (d) of Section 351
13of the Railroad Unemployment Insurance Act (45 U.S.C. 351
15(b) “Employer” means any person employing another under
16any appointment or contract of hire and includes the state, political
17subdivisions of the state, and municipalities.
18(c) “Family member” means any of the following:
19(1) A child, which for purposes of this article means a biological,
20adopted, or foster child, stepchild, legal ward, or a child to whom
21the employee stands in loco parentis. This definition of a child is
22applicable regardless of age or dependency status.
23(2) A biological, adoptive, or foster parent, stepparent,
24guardian of an employee or the employee’s spouse or registered
25domestic partner, or a person who stood in loco parentis when the
26employee was a minor child.
27(3) A spouse.
28(4) A registered domestic partner.
29(5) A grandparent.
30(6) A grandchild.
31(7) A sibling.
27 35(d)end delete
36 “Paid sick days” means time that is compensated at the same
37wage as the employee normally earns during regular work hours
38and is provided by an employer to an employee for the purposes
39described 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
begin delete the same employer forend delete 30 or more days within a
3year from the commencement of employment is entitled to paid
4sick days as specified in this section.
5(b) (1) An employee shall accrue paid sick days at the rate of
6not less than one hour per every 30 hours worked, beginning at
7the commencement of employment or the operative date of this
8article, whichever is
begin delete later, subject to the use and accrual limitations
9set forth in this section.end delete
10(2) An employee who is exempt from overtime requirements
11as an administrative, executive, or professional employee under a
12wage order of the Industrial Welfare Commission is deemed to
13work 40 hours per workweek for the purposes of this section,
14unless the employee’s normal workweek is less than 40 hours, in
15which case the employee shall accrue paid sick days based upon
16that normal workweek.
17(c) An employee shall be entitled to use accrued paid sick days
18beginning on the 90th day of employment, after which day the
19employee may use paid sick days as they are accrued.
20(d) Accrued paid sick days shall carry over to the following
21year of employment. However, an employer may limit an
22employee’s use of accrued paid sick days to 24 hours or three days
23in each year of employment. This section shall be satisfied and no
24accrual or carry over is required if the full amount of leave is
25received at the beginning of each
begin delete calendar year,end delete year begin delete of in accordance with subdivision
26employment, or 12-month basisend delete
begin delete The term “full amount of leave” means three days or 24 hours.end delete
28(e) An employer is not required to provide additional paid sick
29days pursuant to this section if the employer has a paid leave policy
30or paid time off policy, the employer makes available an amount
31of leave that may be used for the same purposes and under the
32same conditions as specified in this section, and the policy does
33either of the following:
34(1) Satisfies the accrual, carry over, and use requirements of
36(2) Provides no less than 24 hours or three days of paid sick
37leave, or equivalent paid leave or paid time off, for employee use
38 at the beginning of each year of employment, calendar year, or
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
begin delete 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.end delete
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. This
28subdivision shall apply to employers covered by Wage Order 11
29or 12 of the Industrial Welfare Commission only on and after
30January 21, 2016.
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
begin delete receives different hourly rates in the pay period when then the rate of pay shall be calculated
3the accrued paid sick leave is taken,end delete
begin delete in the same
7manner as the regular rate of pay for purposes of overtime.end delete
11(l) If the need for paid sick leave is foreseeable, the employee
12shall provide reasonable advance notification. If the need for paid
13sick leave is unforeseeable, the employee shall provide notice of
14the need for the leave as soon as practicable.
15(m) An employer shall provide payment for sick leave taken by
16an employee no later than the payday for the next regular payroll
17period 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,
20including investigating an alleged violation, and ordering
21appropriate temporary relief to mitigate the violation or to maintain
22the status quo pending the completion of a full investigation or
24(b) (1) If the Labor Commissioner, after a hearing that contains
25adequate safeguards to ensure that the parties are afforded due
26process, determines that a violation of this article has occurred, he
27or she may order any appropriate relief, including reinstatement,
28backpay, the payment of sick days unlawfully withheld, and the
29payment of an additional sum in the form of an administrative
30penalty to an employee or other person whose rights under this
31article were violated.
32(2) If paid sick days were unlawfully withheld, the dollar amount
33of paid sick days withheld from the employee multiplied by three,
34or two hundred fifty dollars ($250), whichever amount is greater,
35but not to exceed an aggregate penalty of four thousand dollars
36($4,000), shall be included in the administrative penalty.
37(3) If a violation of this article results in other harm to the
38employee or person, such as discharge from employment, or
39otherwise results in a violation of the rights of the employee or
40person, the administrative penalty shall include a sum of fifty
P8 1dollars ($50) for each day or portion thereof that the violation
2occurred or continued, not to exceed an aggregate penalty of four
3thousand dollars ($4,000).
4(c) Where prompt compliance by an employer is not
5forthcoming, the Labor Commissioner may take any appropriate
6enforcement action to secure compliance, including the filing of
7a civil action. In compensation to the state for the costs of
8investigating and remedying the violation, the commissioner may
9order the violating employer to pay to the state a sum of not more
10than fifty dollars ($50) for each day or portion of a day a violation
11occurs or continues for each employee or other person whose rights
12under this article were violated.
13(d) An employee or other person may report to the Labor
14Commissioner a suspected violation of this article. The
15commissioner shall encourage reporting pursuant to this
16subdivision by keeping confidential, to the maximum extent
17permitted by applicable law, the name and other identifying
18information of the employee or person reporting the violation.
19However, the commissioner may disclose that person’s name and
20identifying information as necessary to enforce this article or for
21other appropriate purposes, upon the authorization of that person.
22(e) The Labor Commissioner or the Attorney General may bring
23a civil action in a court of competent jurisdiction against the
24employer or other person violating this article and, upon prevailing,
25shall be entitled to collect legal or equitable relief on behalf of the
26aggrieved as may be appropriate to remedy the violation, including
27reinstatement, backpay, the payment of sick days unlawfully
28withheld, the payment of an additional sum, not to exceed an
29aggregate penalty of four thousand dollars ($4,000), as liquidated
30damages in the amount of fifty dollars ($50) to each employee or
31person whose rights under this article were violated for each day
32or portion thereof that the violation occurred or continued, plus,
33if the employer has unlawfully withheld paid sick days to an
34employee, the dollar amount of paid sick days withheld from the
35employee multiplied by three; or two hundred fifty dollars ($250),
36whichever amount is greater; and reinstatement in employment or
37injunctive relief; and further shall be awarded reasonable attorney’s
38fees and costs, provided, however, that an entity enforcing this
39article on behalf of the public as provided for under applicable
40state law shall, upon prevailing, be entitled only to equitable,
P9 1injunctive, or restitutionary relief, and reasonable attorney’s fees
3(f) In an administrative or civil action brought under this article,
4the Labor Commissioner or court, as the case may be, shall award
5interest on all amounts due and unpaid at the rate of interest
6specified in subdivision (b) of Section 3289 of the Civil Code.
7(g) The remedies, penalties, and procedures provided under this
8article are cumulative.
9(h) An employer shall not be assessed any penalty or liquidated
10damages under this article due to an isolated and unintentional
11payroll error or written notice error that is a clerical or an
12 inadvertent mistake regarding the accrual or available use of paid
13sick leave. In reviewing for compliance with this section, the
14factfinder may consider as a relevant factor whether the employer,
15prior to an alleged violation, has adopted and is in compliance with
16a set of policies, procedures, and practices that fully comply with