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, 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
begin delete calenderend delete day of employment.
(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 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.
(5) This bill would declare that it is to take effect immediately as an urgency statute.
Vote: 2⁄3. 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
P4 1industry” means an employee performing onsite work associated
2with construction, including work involving alteration, demolition,
3building, excavation, renovation, remodeling, maintenance,
4improvement, repair work, and any other work as described by
5Chapter 9 (commencing with Section 7000) of Division 3 of the
6Business and Professions Code, and other similar or related
7occupations or trades.
8(3) A provider of in-home supportive services under Section
914132.95, 14132.952, or 14132.956 of, or Article 7 (commencing
10with Section 12300) of Chapter 3 of Part 3 of Division 9 of, the
11Welfare and Institutions Code.
12(4) An individual employed by an air carrier as a flight deck or
13cabin crew member that is subject to the provisions of Title II of
14the federal Railway Labor Act (45 U.S.C. Sec. 151 et seq.),
15provided that the individual is provided with compensated time
16off equal to or exceeding the amount established in paragraph (1)
17of subdivision (b) of Section 246.
18(5) An employee of the state, city,
county, city and county,
19district, or any other public entity who is a recipient of a retirement
20allowance and employed without reinstatement into his or her
21respective retirement system pursuant to either Article 8
22(commencing with Section 21220) of Chapter 12 of Part 3 of
23Division 5 of Title 2 of the Government Code, or Article 8
24(commencing with Section 31680) of Chapter 3 of Part 3 of
25Division 4 of Title 3 of the Government Code.
26(b) “Employer” means any person employing another under
27any appointment or contract of hire and includes the state, political
28subdivisions of the state, and municipalities.
29(c) “Family member” means any of the following:
30(1) A child, which for purposes of this article means a biological,
31adopted, or foster child, stepchild, legal ward, or a child to whom
32the employee stands in loco parentis. This definition of a child is
33applicable regardless of age or dependency status.
34(2) A biological, adoptive, or foster parent, stepparent, or legal
35guardian of an employee or the employee’s spouse or registered
36domestic partner, or a person who stood in loco parentis when the
37employee was a minor child.
38(3) A spouse.
39(4) A registered domestic partner.
40(5) A grandparent.
P5 1(6) A grandchild.
2(7) A sibling.
3(d) “Health care provider” has the same meaning as defined in
4paragraph (6) of subdivision (c) of Section 12945.2 of the
6(e) “Paid sick days” means time that is compensated at the same
7wage as the employee normally earns during regular work hours
8and is provided by an employer to an employee for the purposes
9described 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
12California for the same employer for 30 or more days within a
13year from the commencement of employment is entitled to paid
14sick days as specified in this section.
15(b) (1) An employee shall accrue paid sick days at the rate of
16not less than one hour per every 30 hours worked, beginning at
17the commencement of employment or the operative date of this
18article, whichever is later, subject to the use and accrual limitations
19set forth in this section.
20(2) An employee who is exempt from overtime requirements
21as an administrative, executive, or professional employee under a
22wage order of the Industrial Welfare Commission is deemed to
23work 40 hours per workweek for the purposes of this section,
24unless the employee’s normal workweek is less than 40 hours, in
25which case the employee shall accrue paid sick days based upon
26that normal workweek.
27(3) An employer may use a different accrual method, other than
28providing one hour per every 30 hours worked, provided that the
29accrual is on a regular basis so that employee has no less than
3024 hours of accrued sick leave or paid time off by the 120th
31calendar day of employment or each calendar year, or
begin delete each
3212-month basis.end delete
33(4) An employer may satisfy the accrual requirements of this
34section by providing not less than 24 hours or three days of paid
35sick leave that is available to the employee to use by the completion
36of his or her 120th calendar day of employment.
37(c) An employee shall be entitled to use accrued paid sick days
38beginning on the 90th day of employment, after which day the
39employee may use paid sick days as they are accrued.
P6 1(d) Accrued paid sick days shall carry over to the following
2year of employment. However, an employer may limit an
3employee’s use of accrued paid sick days to 24 hours or three days
4in each year of
begin delete employment.end delete This section shall be satisfied and no accrual or
6carry over is required if the full amount of leave is received at the
7beginning of each calendar year,
begin delete year of or 12-month
begin delete basis in accordance with subdivision The term “full amount of leave” means three days or
11(e) An employer is not required to provide additional paid sick
12days pursuant to this section if the employer has a paid leave policy
13or paid time off policy, the employer makes available an amount
14of leave that may be used for the same
15purposes and under the same conditions as specified in this section,
16and the policy
begin delete does either of the following:end delete
18(1) Satisfies the accrual, carry over, and use requirements of
20(2) Provides no less than 24 hours or three days of paid sick
21leave, or equivalent paid leave or paid time off, for employee use
22at the beginning of each year of employment, calendar year, or
10(f) (1) Except as specified in paragraph (2), an employer is not
11required to provide compensation to an employee for accrued,
12unused paid sick days upon termination, resignation, retirement,
13or other separation from employment.
14(2) If an employee separates from an employer and is rehired
15by the employer within one year from the date of separation,
16previously accrued and unused paid sick days shall be reinstated.
17The employee shall be entitled to use those previously accrued
18and unused paid sick days and to accrue additional paid sick days
19upon rehiring, subject to the use and accrual limitations set forth
20in this section. An employer is not required to reinstate accrued
21paid time off to an employee that was paid out at the time of
22termination, resignation, or separation of employment.
23(g) An employer may lend paid sick days to an employee in
24advance of accrual, at the employer’s discretion and with proper
26(h) An employer shall provide an employee with written notice
27that sets forth the amount of paid sick leave available, or paid time
28off leave an employer provides in lieu of sick leave, for use on
29either the employee’s itemized wage statement described in Section
30226 or in a separate writing provided on the designated pay date
31with the employee’s payment of wages. If an employer provides
32unlimited paid sick leave or unlimited paid time off to an employee,
33the employer may satisfy this section by indicating on the notice
34or the employee’s itemized wage statement “unlimited.” The
35penalties described in this article for a violation of this subdivision
36shall be in lieu of the penalties for a violation of Section 226. This
37subdivision shall apply to employers covered by Wage Order 11
38or 12 of the Industrial Welfare Commission only on and after
39January 21, 2016.
P8 1(i) An employer has no obligation under this section to allow
2an employee’s total accrual of paid sick leave to exceed 48 hours
3or 6 days, provided that an employee’s rights to accrue and use
4paid sick leave are not limited other than as allowed under this
6(j) An employee may determine how much paid sick leave he
7or she needs to use, provided that an employer may set a reasonable
8minimum increment, not to exceed two hours, for the use of paid
12 Paid sick time for nonexempt employees shall be calculated
13in the same manner as the regular rate of pay for the workweek in
14which the employee uses paid sick time, whether or not the
15employee actually works overtime in that workweek. Paid sick
16time for exempt employees shall be calculated in the same manner
17as the employer calculates wages for other forms of paid leave
26(l) If the need for paid sick leave is foreseeable, the employee
27shall provide reasonable advance notification. If the need for paid
28sick leave is unforeseeable, the employee shall provide notice of
29the need for the leave as soon as practicable.
30(m) An employer shall provide payment for sick leave taken by
31an employee no later than the payday for the next regular payroll
32period after the sick leave was taken.
Section 247.5 of the Labor Code is amended to read:
(a) An employer shall keep for at least three years
35records documenting the hours worked and paid sick days accrued
36and used by an employee, and shall allow the Labor Commissioner
37to access these records pursuant to the requirements set forth in
38Section 1174. An employer shall make these records available to
39an employee in the same manner as described in Section 226. If
40an employer does not maintain adequate records pursuant to this
P9 1section, it shall be presumed that the employee is entitled to the
2maximum number of hours accruable under this article, unless the
3employer can show otherwise by clear and convincing evidence.
4(b) Notwithstanding any other provision of this article, an
5employer is not obligated to inquire into or record the purposes
6for which an employee uses paid leave or paid time off.
The provisions of this measure are severable. If any
8provision of this measure or its application is held invalid, that
9invalidity shall not affect other provisions or applications that can
10be given effect without the invalid provision or application.
This act is an urgency statute necessary for the
12immediate preservation of the public peace, health, or safety within
13the meaning of Article IV of the Constitution and shall go into
14immediate effect. The facts constituting the necessity are:
15In order to clarify provisions of Article 1.5 (commencing with
16Section 245) of Chapter 1 of Part 1 of Division 2 of the Labor
17Code, for the purposes of ensuring an effective and smooth
18implementation of the Healthy Workplaces, Healthy Families Act
19of 2014, it is necessary that this act take effect immediately.