BILL NUMBER: AB 304 AMENDED
BILL TEXT
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
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 employee do that 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 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 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. 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. 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: 2/3. 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 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, 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 an 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 in each 12-month period.
(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, calendar year, or 12-month period. 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 of
employment employment, calendar year, or
12-month period. 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 applicable to employees that may be used for the same purposes
and under the same conditions as specified in this section, and the
policy satisfies one of the following:
(1) Satisfies the accrual, carry over, and use requirements of
this section.
(2) Provided paid sick leave or paid time off to a class of
employees before January 1, 2015, pursuant to a sick leave policy or
paid time off policy that used an accrual method different than
providing one hour per 30 hours worked, provided that the accrual is
on a regular basis so that an employee, including an employee hired
into that class after January 1, 2015, has no less than one day or
eight hours of accrued sick leave or paid time off within three
months of employment of each calendar year, or each 12-month period,
and the employee was eligible to earn at least three days or 24 hours
of sick leave or paid time off within nine months of employment. If
an employer modifies the accrual method used in the policy it had in
place prior to January 1, 2015, the employer shall comply with any
accrual method set forth in subdivision (b) or provide the full
amount of leave at the beginning of each year of employment, calendar
year, or 12-month period. This section does not prohibit the
employer from increasing the accrual amount or rate for a class of
employees covered by this subdivision.
(3) Notwithstanding any other law, sick leave benefits provided
pursuant to Article 3 (commencing with Section 19859) of
Chapter 2.5 of Part 2.6 of Division 5 of Title 2 the
provisions of Sections 19859 to 19868.3, inclusive, of the
Government Code, or annual leave benefits provided pursuant to
Article 2.5 (commencing with Section 19858.3) of Chapter 2.5
of Part 2.6 of Division 5 of Title 2 the provisions
of Sections 19858.3 to 19858.7, inclusive, of the Government
Code, that or by provisions of a memorandum
of understanding reached pursuant to Section 3517.5 that incorporate
or supersede provisions of Section 19859 to 19868.3, inclusive, or
Sections 19858.3 to 19858.7, inclusive of the Government Code,
meet the requirements of this section.
(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,
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) An For the purposes of this section,
an employer shall calculate paid sick leave using
either any of the following calculations:
(1) 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.
(2) For purposes of this section, 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, the rate of pay
Paid sick time for nonexempt employees 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.
(3) 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.
SEC. 5. This act is an urgency statute necessary for the immediate
preservation of the public peace, health, or safety within the
meaning of Article IV of the Constitution and shall go into immediate
effect. The facts constituting the necessity are:
In order to clarify provisions of Article 1.5 (commencing with
Section 245) of Chapter 1 of Part 1 of Division 2 of the Labor Code,
for the purposes of ensuring an effective and smooth implementation
of the Healthy Workplaces, Healthy Families Act of 2014, it is
necessary that this act take effect immediately.