BILL NUMBER: AB 304 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 22, 2015
AMENDED IN ASSEMBLY APRIL 27, 2015
AMENDED IN ASSEMBLY APRIL 14, 2015
AMENDED IN ASSEMBLY MARCH 26, 2015
INTRODUCED BY Assembly Member Gonzalez
FEBRUARY 12, 2015
An act to amend Sections 245.5 and 246
245.5, 246, and 247.5 of the Labor Code, relating to
employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 304, as amended, Gonzalez. Sick leave: accrual and limitations.
The
(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, as specified,
from the definition of employee under these provisions.
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.
Existing
(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. 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 also 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.
(3) Existing law requires an employer
to keep records for three years documenting the hours worked and paid
sick days accrued and used by an employee and to make those records
available to the Labor Commissioner upon request.
This bill would provide that the employer has no obligation to
inquire into or record the purposes for which an employee uses sick
leave or paid time off.
(4) The bill would specify that its
provisions are severable and 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 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. Sec. 151 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 as defined by subsection (d) of Section 351 of the
Railroad Unemployment Insurance Act (45 U.S.C. Sec. 351 et seq.).
(5) An employee of 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.
(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) "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. 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.
(3) 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.
(4) An employer may satisfy the accrual requirements of this
section by providing not less than 24 hours or three 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.
(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 year 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 at
the beginning of each year of employment, calendar year, or 12-month
period.
(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. This subdivision shall
apply to employers covered by Wage Order 11 or 12 of the Industrial
Welfare Commission only on and after January 21, 2016.
(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 are not 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.
(k) Paid sick time for nonexempt employees shall be calculated in
the same manner as the regular rate of pay for the workweek in which
the employee uses paid sick time, whether or not the employee
actually works overtime in that workweek. Paid sick time for exempt
employees shall be calculated in the same manner as the employer
calculates wages for other forms of paid leave time.
(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 247.5 of the Labor Code
is amended to read:
247.5. (a) An employer shall keep for at
least three years records documenting the hours worked and paid sick
days accrued and used by an employee, and shall allow the Labor
Commissioner to access these records pursuant to the requirements set
forth in Section 1174. An employer shall make these records
available to an employee in the same manner as described in Section
226. If an employer does not maintain adequate records pursuant to
this section, it shall be presumed that the employee is entitled to
the maximum number of hours accruable under this article, unless the
employer can show otherwise by clear and convincing evidence.
(b) Notwithstanding any other provision of this article, an
employer is not obligated to inquire into or record the purposes for
which an employee uses paid leave or paid time off.
SEC. 4. The provisions of this measure are
severable. If any provision of this measure or its application is
held invalid, that invalidity shall not affect other provisions or
applications that can be given effect without the invalid provision
or application.