Amended in Assembly June 22, 2015

Amended in Assembly June 18, 2015

Amended in Assembly June 2, 2015

Amended in Assembly May 22, 2015

Amended in Assembly April 27, 2015

Amended in Assembly April 14, 2015

Amended in Assembly March 26, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 304


Introduced by Assembly Member Gonzalez

February 12, 2015


An act to amend Sections 245.5, 246, and 247.5 of the Labor Code, relating to employment, and declaring the urgency thereof, to take effect immediately.

LEGISLATIVE COUNSEL’S DIGEST

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 employeebegin insert do thatend insert work for the same employerbegin delete for 30 or more days within the previous 12 monthsend delete 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 calendar 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 authorize an employer to limit an employee’s use of paid sick days to 24 hours or 3 days in each year of employment, a calendar year, or a 12-month period. 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 wouldbegin delete 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.end deletebegin insert require an employer to calculate paid sick leave based upon an employee’s regular rate of pay, total wages divided by total hours worked in a 90-day period, or the wages for other forms of paid leave, as specified.end insert 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 applicable to employees for specified uses, and the policy satisfies specified accrual, carry over, and use requirements, or that provided paid sick leave or paid time off to employees before January 1, 2015, as specified, or that are provided pursuant to specified provisions of law or of a memorandum understanding that meet the requirements of these provisions.

(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: 23. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

P3    1

SECTION 1.  

Section 245.5 of the Labor Code is amended to
2read:

3

245.5.  

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
P4    1state minimum wage rate, and the agreement either (A) was entered
2into before January 1, 2015, or (B) expressly waives the
3requirements of this article in clear and unambiguous terms. For
4purposes of this subparagraph, “employee in the construction
5industry” means an employee performingbegin delete onsiteend delete work associated
6with construction, including work involving alteration, demolition,
7building, excavation, renovation, remodeling, maintenance,
8improvement, repair work, and any other work as described by
9Chapter 9 (commencing with Section 7000) of Division 3 of the
10Business and Professions Code, and other similar or related
11occupations or trades.

12(3) A provider of in-home supportive services under Section
1314132.95, 14132.952, or 14132.956 of, or Article 7 (commencing
14with Section 12300) of Chapter 3 of Part 3 of Division 9 of, the
15Welfare and Institutions Code.

16(4) An individual employed by an air carrier as a flight deck or
17cabin crew member that is subject to the provisions of Title II of
18the federal Railway Labor Act (45 U.S.C. Sec. 151 et seq.),
19provided that the individual is provided with compensated time
20off equal to or exceeding the amount established in paragraph (1)
21of subdivision (b) of Section 246.

22(5) An employee of the state, city, county, city and county,
23district, or any other public entity who is a recipient of a retirement
24allowance and employed without reinstatement into his or her
25respective retirement system pursuant to either Article 8
26(commencing with Section 21220) of Chapter 12 of Part 3 of
27Division 5 of Title 2 of the Government Code, or Article 8
28(commencing with Section 31680) of Chapter 3 of Part 3 of
29Division 4 of Title 3 of the Government Code.

30(b) “Employer” means any person employing another under
31any appointment or contract of hire and includes the state, political
32subdivisions of the state, and municipalities.

33(c) “Family member” means any of the following:

34(1) A child, which for purposes of this article means a biological,
35adopted, or foster child, stepchild, legal ward, or a child to whom
36the employee stands in loco parentis. This definition of a child is
37applicable regardless of age or dependency status.

38(2) A biological, adoptive, or foster parent, stepparent, or legal
39guardian of an employee or the employee’s spouse or registered
P5    1domestic partner, or a person who stood in loco parentis when the
2employee was a minor child.

3(3) A spouse.

4(4) A registered domestic partner.

5(5) A grandparent.

6(6) A grandchild.

7(7) A sibling.

8(d) “Health care provider” has the same meaning as defined in
9paragraph (6) of subdivision (c) of Section 12945.2 of the
10Government Code.

11(e) “Paid sick days” means time that is compensated at the same
12wage as the employee normally earns during regular work hours
13and is provided by an employer to an employee for the purposes
14described in Section 246.5.

15

SEC. 2.  

Section 246 of the Labor Code is amended to read:

16

246.  

(a) An employee who, on or after July 1, 2015, works in
17California for the same employer for 30 or more days within a
18year from the commencement of employment is entitled to paid
19sick days as specified in this section.

20(b) (1) An employee shall accrue paid sick days at the rate of
21not less than one hour per every 30 hours worked, beginning at
22the commencement of employment or the operative date of this
23article, whichever is later, subject to the use and accrual limitations
24set forth in this section.

25(2) An employee who is exempt from overtime requirements
26as an administrative, executive, or professional employee under a
27wage order of the Industrial Welfare Commission is deemed to
28work 40 hours per workweek for the purposes of this section,
29unless the employee’s normal workweek is less than 40 hours, in
30which case the employee shall accrue paid sick days based upon
31that normal workweek.

32(3) An employer may use a different accrual method, other than
33providing one hour per every 30 hours worked, provided that the
34accrual is on a regular basis so that an employee has no less than
3524 hours of accrued sick leave or paid time off by the 120th
36calendar day of employment or each calendar year, or in each
3712-month period.

38(4) An employer may satisfy the accrual requirements of this
39section by providing not less than 24 hours or three days of paid
P6    1sick leave that is available to the employee to use by the completion
2of his or her 120th calendar day of employment.

3(c) An employee shall be entitled to use accrued paid sick days
4beginning on the 90th day of employment, after which day the
5employee may use paid sick days as they are accrued.

6(d) Accrued paid sick days shall carry over to the following
7year of employment. However, an employer may limit an
8employee’s use of accrued paid sick days to 24 hours or three days
9in each year of employment, calendar year, or 12-month period.
10This section shall be satisfied and no accrual or carry over is
11required if the full amount of leave is received at the beginning of
12each year ofbegin delete employmentend deletebegin insert employment,end insert calendar year, or 12-month
13period. The term “full amount of leave” means three days or 24
14hours.

15(e) An employer is not required to provide additional paid sick
16days pursuant to this section if the employer has a paid leave policy
17or paid time off policy, the employer makes available an amount
18of leave applicable to employees that may be used for the same
19purposes and under the same conditions as specified in this section,
20and the policy satisfies one of the following:

21(1) Satisfies the accrual, carry over, and use requirements of
22this section.

23(2) Provided paid sick leave or paid time off to a class of
24employees before January 1, 2015, pursuant to a sick leave policy
25or paid time off policy that used an accrual method different than
26providing one hour per 30 hours worked, provided that the accrual
27is on a regular basis so that an employee, including an employee
28hired into that class after January 1, 2015, has no less than one day
29or eight hours of accrued sick leave or paid time off within three
30months of employment of each calendar year, or each 12-month
31period, and the employee was eligible to earn at least three days
32or 24 hours of sick leave or paid time off within nine months of
33employment. If an employer modifies the accrual method used in
34the policy it had in place prior to January 1, 2015, the employer
35shall comply with any accrual method set forth in subdivision (b)
36or provide the full amount of leave at the beginning of each year
37of employment, calendar year, or 12-month period. This section
38does not prohibit the employer from increasing the accrual amount
39or rate for a class of employees covered by this subdivision.

P7    1(3) Notwithstanding any other law, sick leave benefits provided
2pursuant tobegin delete Article 3 (commencing with Section 19859) of Chapter
32.5 of Part 2.6 of Division 5 of Title 2end delete
begin insert the provisions of Sections
419859 to 19868.3, inclusive,end insert
of the Government Code, or annual
5leave benefits provided pursuant tobegin delete Article 2.5 (commencing with
6Section 19858.3) of Chapter 2.5 of Part 2.6 of Division 5 of Title
72end delete
begin insert the provisions of Sections 19858.3 to 19858.7, inclusive,end insert of the
8Government Code,begin delete thatend deletebegin insert or by provisions of a memorandum of
9understanding reached pursuant to Section 3517.5 that incorporate
10or supersede provisions of Section 19859 to 19868.3, inclusive,
11or Sections 19858.3 to 19858.7, inclusive of the Government Code,end insert

12 meet the requirements of this section.

13(f) (1) Except as specified in paragraph (2), an employer is not
14required to provide compensation to an employee for accrued,
15unused paid sick days upon termination, resignation, retirement,
16or other separation from employment.

17(2) If an employee separates from an employer and is rehired
18by the employer within one year from the date of separation,
19previously accrued and unused paid sick days shall be reinstated.
20The employee shall be entitled to use those previously accrued
21and unused paid sick days and to accrue additional paid sick days
22upon rehiring, subject to the use and accrual limitations set forth
23in this section. An employer is not required to reinstate accrued
24paid time off to an employee that was paid out at the time of
25termination, resignation, or separation of employment.

26(g) An employer may lend paid sick days to an employee in
27advance of accrual, at the employer’s discretion and with proper
28documentation.

29(h) An employer shall provide an employee with written notice
30that sets forth the amount of paid sick leave available, or paid time
31off leave an employer provides in lieu of sick leave, for use on
32either the employee’s itemized wage statement described in Section
33226 or in a separate writing provided on the designated pay date
34with the employee’s payment of wages. If an employer provides
35unlimited paid sick leave or unlimited paid time off to an employee,
36the employer may satisfy this section by indicating on the notice
37or the employee’s itemized wage statement “unlimited.” The
38penalties described in this article for a violation of this subdivision
39shall be in lieu of the penalties for a violation of Section 226. This
40subdivision shall apply to employers covered by Wage Order 11
P8    1or 12 of the Industrial Welfare Commission only on and after
2January 21, 2016.

3(i) An employer has no obligation under this section to allow
4an employee’s total accrual of paid sick leave to exceed 48 hours
5or 6 days, provided that an employee’s rights to accrue and use
6paid sick leave are not limited other than as allowed under this
7section.

8(j) An employee may determine how much paid sick leave he
9or she needs to use, provided that an employer may set a reasonable
10minimum increment, not to exceed two hours, for the use of paid
11sick leave.

12(k) begin deleteAn end deletebegin insertFor the purposes of this section, an end insertemployer shall
13calculate paid sick leave usingbegin delete eitherend deletebegin insert anyend insert of the following
14calculations:

15(1) Paid sick time for nonexempt employees shall be calculated
16in the same manner as the regular rate of pay for the workweek in
17which the employee uses paid sick time, whether or not the
18employee actually works overtime in that workweek.begin delete Paid sick
19time for exempt employees shall be calculated in the same manner
20as the employer calculates wages for other forms of paid leave
21time.end delete

22(2)  begin deleteFor purposes of this section, if the employee, in the 90 days
23of employment before taking accrued sick leave, had different
24hourly pay rates, was paid by commission or piece rate, or was a
25nonexempt salaried employee, the rate of pay end delete
begin insertPaid sick time for
26nonexempt employees end insert
shall be calculated by dividing the
27employee’s total wages, not including overtime premium pay, by
28the employee’s total hours worked in the full pay periods of the
29prior 90 days of employment.

begin insert

30 (3) Paid sick time for exempt employees shall be calculated in
31the same manner as the employer calculates wages for other forms
32of paid leave time.

end insert

33(l) If the need for paid sick leave is foreseeable, the employee
34shall provide reasonable advance notification. If the need for paid
35sick leave is unforeseeable, the employee shall provide notice of
36the need for the leave as soon as practicable.

37(m) An employer shall provide payment for sick leave taken by
38an employee no later than the payday for the next regular payroll
39period after the sick leave was taken.

40

SEC. 3.  

Section 247.5 of the Labor Code is amended to read:

P9    1

247.5.  

(a) An employer shall keep for at least three years
2records documenting the hours worked and paid sick days accrued
3and used by an employee, and shall allow the Labor Commissioner
4to access these records pursuant to the requirements set forth in
5Section 1174. An employer shall make these records available to
6an employee in the same manner as described in Section 226. If
7an employer does not maintain adequate records pursuant to this
8section, it shall be presumed that the employee is entitled to the
9maximum number of hours accruable under this article, unless the
10employer can show otherwise by clear and convincing evidence.

11(b) Notwithstanding any other provision of this article, an
12employer is not obligated to inquire into or record the purposes
13for which an employee uses paid leave or paid time off.

14

SEC. 4.  

The provisions of this measure are severable. If any
15provision of this measure or its application is held invalid, that
16invalidity shall not affect other provisions or applications that can
17be given effect without the invalid provision or application.

18

SEC. 5.  

This act is an urgency statute necessary for the
19immediate preservation of the public peace, health, or safety within
20the meaning of Article IV of the Constitution and shall go into
21immediate effect. The facts constituting the necessity are:

22In order to clarify provisions of Article 1.5 (commencing with
23Section 245) of Chapter 1 of Part 1 of Division 2 of the Labor
24Code, for the purposes of ensuring an effective and smooth
25implementation of the Healthy Workplaces, Healthy Families Act
26of 2014, it is necessary that this act take effect immediately.



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