AB 304, as amended, Gonzalez. Sick leave: accrual and limitations.
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.
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.
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. The bill would
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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. Sec. 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 as defined by subsection (d) of Section 351
4of the Railroad Unemployment Insurance Act (45 U.S.C. Sec. 351
14(b) “Employer” means any person employing another under
15any appointment or contract of hire and includes the state, political
16subdivisions of the state, and municipalities.
17(c) “Family member” means any of the following:
18(1) A child, which for purposes of this article means a biological,
19adopted, or foster child, stepchild, legal ward, or a child to whom
20the employee stands in loco parentis. This definition of a child is
21applicable regardless of age or dependency status.
22(2) A biological, adoptive, or foster parent, stepparent, or legal
23guardian of an employee or the employee’s spouse or registered
24domestic partner, or a person who stood in loco parentis when the
25employee was a minor child.
26(3) A spouse.
27(4) A registered domestic partner.
28(5) A grandparent.
29(6) A grandchild.
30(7) A sibling.
31(d) “Health care provider” has the same meaning as defined in
32paragraph (6) of subdivision (c) of Section 12945.2 of the
34(e) “Paid sick days” means time that is compensated at the same
35wage as the employee normally earns during regular work hours
36and is provided by an employer to an employee for the purposes
37described 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
40California for 30 or more days within a year
P5 1from the commencement of employment is entitled to paid sick
2days as specified in this section.
3(b) (1) An employee shall accrue paid sick days at the rate of
4not less than one hour per every 30 hours worked, beginning at
5the commencement of employment or the operative date of this
6article, whichever is
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8(2) An employee who is exempt from overtime requirements
9as an administrative, executive, or professional employee under a
10wage order of the Industrial Welfare Commission is deemed to
11work 40 hours per workweek for the purposes of this section,
12unless the employee’s normal workweek is less than 40 hours, in
13which case the employee shall accrue paid sick days based upon
14that normal workweek.
24(c) An employee shall be entitled to use accrued paid sick days
25beginning on the 90th day of employment, after which day the
26employee may use paid sick days as they are accrued.
27(d) Accrued paid sick days shall carry over to the following
28year of employment. However, an employer may limit an
29employee’s use of accrued paid sick days to 24 hours or three days
30in each year of employment. This section shall be satisfied and no
31accrual or carry over is required if the full amount of leave is
32received at the beginning of each
begin delete yearend deletein accordance with subdivision (e).
35(e) An employer is not required to provide additional paid sick
36days pursuant to this section if the employer has a paid leave policy
37or paid time off policy, the employer makes available an amount
38of leave that may be used for the same purposes and under the
39same conditions as specified in this section, and the policy does
40either of the following:
P6 1(1) Satisfies the accrual, carry over, and use requirements of
3(2) Provides no less than 24 hours or three days of paid sick
4leave, or equivalent paid leave or paid time off, for employee use
5at the beginning of each year of employment, calendar year, or
7(f) (1) Except as specified in paragraph (2), an employer is not
8required to provide compensation to an employee for accrued,
9unused paid sick days upon termination, resignation, retirement,
10or other separation from employment.
11(2) If an employee separates from an employer and is rehired
12by the employer within one year from the date of separation,
13previously accrued and unused paid sick days shall be reinstated.
14The employee shall be entitled to use those previously accrued
15and unused paid sick days and to accrue additional paid sick days
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20(g) An employer may lend paid sick days to an employee in
21advance of accrual, at the employer’s discretion and with proper
23(h) An employer shall provide an employee with written notice
24that sets forth the amount of paid sick leave available, or paid time
25off leave an employer provides in lieu of sick leave, for use on
26either the employee’s itemized wage statement described in Section
27226 or in a separate writing provided on the designated pay date
28with the employee’s payment of wages. If an employer provides
29unlimited paid sick leave or unlimited paid time off to an employee,
30the employer may satisfy this section by indicating on the notice
31or the employee’s itemized wage statement “unlimited.” The
32penalties described in this article for a violation of this subdivision
33shall be in lieu of the penalties for a violation of Section 226. This
34subdivision shall apply to employers covered by Wage Order 11
35or 12 of the Industrial Welfare Commission only on and after
36January 21, 2016.
37(i) An employer has no obligation under this section to allow
38an employee’s total accrual of paid sick leave to exceed 48 hours
39or 6 days, provided that an employee’s rights to accrue and use
P7 1paid sick leave are not limited other than as allowed under this
3(j) An employee may determine how much paid sick leave he
4or she needs to use, provided that an employer may set a reasonable
5minimum increment, not to exceed two hours, for the use of paid
7(k) The rate of pay shall be the employee’s hourly wage. If the
8employee in the 90 days of employment before taking accrued
9sick leave had different hourly pay rates, was paid by commission
10or piece rate, or was a nonexempt salaried employee, then the rate
11of pay shall be calculated by dividing the employee’s total wages,
12not including overtime premium pay, by the employee’s total hours
13worked in the full pay periods of the prior 90 days of employment.
21(l) If the need for paid sick leave is foreseeable, the employee
22shall provide reasonable advance notification. If the need for paid
23sick leave is unforeseeable, the employee shall provide notice of
24the need for the leave as soon as practicable.
25(m) An employer shall provide payment for sick leave taken by
26an employee no later than the payday for the next regular payroll
27period after the sick leave was taken.
An employer shall keep for at least three years
30records documenting the hours worked and paid sick days accrued
31and used by an employee, and shall allow the Labor Commissioner
32to access these records pursuant to the requirements set forth in
33Section 1174. An employer shall make these records available to
34an employee in the same manner as described in Section 226. If
35an employer does not maintain adequate records pursuant to this
36section, it shall be presumed that the employee is entitled to the
37maximum number of hours accruable under this article, unless the
38employer can show otherwise by clear and convincing evidence.