Amended in Assembly March 18, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 2405

Introduced by Assembly Member Gatto

February 19, 2016

An act to amend Section begin delete 226 end delete begin insert 230.8 end insert of the Labor Code, relating to begin delete wages. end delete begin insert employme end insert begin insert nt. end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 2405, as amended, Gatto. Employment: begin delete wages: itemized statements. end delete begin insert employees: time off. end insert

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Existing law prohibits an employer who employs 25 or more employees working at the same location from discharging or discriminating against an employee who is a parent, as defined, having custody of a child in a licensed child day care facility or in kindergarten or grades 1 to 12, inclusive, for taking off up to 40 hours each year to find, enroll, or reenroll their child in a school, to participate in school activities, or address emergency situations at school, subject to specified conditions. Existing law requires an employee to use vacation or other paid time off when taking time off under these provisions and authorizes the use of unpaid time off, to the extent made available by the employer.

end insert begin insert

This bill would require an employer to annually provide an employee at least 24 hours of paid time off for the purposes of a planned absence under these provisions, except as specified, and would instead authorize an employee to use vacation or paid time off, or use unpaid time off, if available, when taking time off under these provisions.

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The bill would provide a remedy to an employee whose request for time off under these provisions is denied by the employer. The bill would require the Labor Commissioner to create a poster listing the protections available to employees and would require an employer to post it at the workplace, as specified.

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Existing law requires an employer to provide his or her employee an itemized statement containing specified information at the time the employer pays the employee his or her wages.

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This bill would make nonsubstantive changes to that requirement.

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Vote: majority. Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program: no.

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

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begin insert SECTION 1. end insert   

end insert

begin insert Section 230.8 of the end insert begin insert Labor Code end insert begin insert is amended to
read: end insert

230.8.  

(a) (1) An employer who employs 25 or more
employees working at the same location shall not discharge or in
any way discriminate against an employee who is a parent of one
or more children of the age to attend kindergarten or grades 1 to
12, inclusive, or a licensed child care provider, for taking off up
to 40 hours each year, for the purpose of either of the following
child-related activities:

(A) To find, enroll, or reenroll his or her child in a school or
with a licensed child care provider, or to participate in activities
of the school or licensed child care provider of his or her child, if
the employee, prior to taking the time off, gives reasonable notice
to the employer of the planned absence of the employee. Time off
pursuant to this subparagraph shall not exceed eight hours in any
calendar month of the year.

(B) To address a child care provider or school emergency, if
the employee gives notice to the employer.

(2) If more than one parent of a child is employed by the same
employer at the same worksite, the entitlement under paragraph
(1) of a planned absence as to that child applies, at any one time,
only to the parent who first gives notice to the employer, such that
another parent may take a planned absence simultaneously as to
that same child under the conditions described in paragraph (1)
only if he or she obtains the employer’s approval for the requested
time off.

(b) (1) The employee begin delete shall end delete begin insert may end insert utilize existing vacation,
personal leave, or compensatory time off for purposes of the
planned absence authorized by this section, unless otherwise
provided by a collective bargaining agreement entered into before
January 1, 1995, and in effect on that date. An employee also may
utilize time off without pay for this purpose, to the extent made
available by his or her employer. begin delete The end delete

begin insert

(2) The employee shall annually be provided at least 24 hours
of paid time off for the purposes of the planned absence authorized
by this section, unless otherwise provided in a collective bargaining
agreement entered into before January 1, 2017.

end insert

begin insert (3) end insert begin insert   end insert begin insert Except as set forth in paragraph (2), the end insert entitlement of any
employee under this section shall not be diminished by any
collective bargaining agreement term or condition that is agreed
to on or after January 1, 1995.

begin delete

(2)

end delete

begin insert (4) end insert  Notwithstanding paragraph (1), in the event that all
permanent, full-time employees of an employer are accorded
vacation during the same period of time in the calendar year, an
employee of that employer may not utilize that accrued vacation
benefit at any other time for purposes of the planned absence
authorized by this section.

(c) The employee, if requested by the employer, shall provide
documentation from the school or licensed child care provider as
proof that he or she engaged in child-related activities permitted
in subdivision (a) on a specific date and at a particular time. For
purposes of this subdivision, “documentation” means whatever
written verification of parental participation the school or licensed
child care provider deems appropriate and reasonable.

(d) Any employee who is begin insert denied time off under this section, end insert
discharged, threatened with discharge, demoted, suspended, or in
any other manner discriminated begin insert or retaliated end insert against in terms and
conditions of employment by his or her employer because the
employee has taken begin insert or requested end insert time off to engage in child-related
activities permitted in subdivision (a) shall be entitled to
reinstatement and reimbursement for lost wages and work benefits
caused by the acts of the begin delete employer. end delete begin insert employer, and appropriate
equitable relief. end insert begin insert Any end insert employer who willfully refuses to rehire,
promote, or otherwise restore an employee or former employee
who has been determined to be eligible for rehiring or promotion
by a grievance procedure, arbitration, or hearing authorized by
law shall be subject to a civil penalty in an amount equal to three
times the amount of the employee’s lost wages and work benefits.

begin insert

(e) An employee who is discharged, threatened with discharge,
demoted, suspended, or in any other manner discriminated or
retaliated against in the terms and conditions of employment by
his or her employer because the employee has exercised his or her
rights as set forth in subdivision (a) may file a complaint with the
Division of Labor Standards Enforcement of the Department of
Industrial Relations pursuant to Section 98.7.

end insert begin insert

(f) In each workplace of the employer, the employer shall display
a poster in a conspicuous place containing all the information
specified in paragraph (2) of subdivision (a). The Labor
Commissioner shall create a poster containing this information
and make it available to employers. The poster shall state all of
the following:

end insert begin insert

(1) An employee is entitled to accrue, request, and use 24 hours
of paid time off for their child’s school-related activities.

end insert begin insert

(2) That retaliation or discrimination against an employee who
requests paid time off or uses time off, or both, is prohibited and
that an employee has the right under this article to file a complaint
with the Labor Commissioner against an employer who retaliates
or discriminates against the employee.

end insert begin delete

(e)

end delete

begin insert (g) end insert  For purposes of this section, the following terms have the
following meanings:

(1) “Parent” means a parent, guardian, stepparent, foster parent,
or grandparent of, or a person who stands in loco parentis to, a
child.

(2) “Child care provider or school emergency” means that an
employee’s child cannot remain in a school or with a child care
provider due to one of the following:

(A) The school or child care provider has requested that the
child be picked up, or has an attendance policy, excluding planned
holidays, that prohibits the child from attending or requires the
child to be picked up from the school or child care provider.

(B) Behavioral or discipline problems.

(C) Closure or unexpected unavailability of the school or child
care provider, excluding planned holidays.

(D) A natural disaster, including, but not limited to, fire,
earthquake, or flood.

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SECTION 1.  

Section 226 of the Labor Code is amended to
read:

226.  

(a) An employer, semimonthly or at the time of each
payment of wages, shall furnish to his or her employee, either as
a detachable part of the check, draft, or voucher paying the
employee’s wages, or separately if wages are paid by personal
check or cash, an accurate itemized statement in writing showing
(1) gross wages earned, (2) total hours worked by the employee,
unless the employee’s compensation is solely based on a salary
and the employee is exempt from payment of overtime under
subdivision (a) of Section 515 or any applicable order of the
Industrial Welfare Commission, (3) the number of piece-rate units
earned and any applicable piece rate if the employee is paid on a
piece-rate basis, (4) all deductions, provided that all deductions
made on written orders of the employee may be aggregated and
shown as one item, (5) net wages earned, (6) the inclusive dates
of the period for which the employee is paid, (7) the name of the
employee and only the last four digits of his or her social security
number or an employee identification number other than a social
security number, (8) the name and address of the legal entity that
is the employer and, if the employer is a farm labor contractor, as
defined in subdivision (b) of Section 1682, the name and address
of the legal entity that secured the services of the employer, and
(9) all applicable hourly rates in effect during the pay period and
the corresponding number of hours worked at each hourly rate by
the employee and, beginning July 1, 2013, if the employer is a
temporary services employer as defined in Section 201.3, the rate
of pay and the total hours worked for each temporary services
assignment. The deductions made from payment of wages shall
be recorded in ink or other indelible form, properly dated, showing
the month, day, and year, and a copy of the statement and the
record of the deductions shall be kept on file by the employer for
at least three years at the place of employment or at a central
location within the State of California. For purposes of this
subdivision, “copy” includes a duplicate of the itemized statement
provided to an employee or a computer-generated record that
accurately shows all of the information required by this subdivision.

(b) An employer that is required by this code or any regulation
adopted pursuant to this code to keep the information required by
subdivision (a) shall afford current and former employees the right
to inspect or copy records pertaining to their employment, upon
reasonable request to the employer. The employer may take
reasonable steps to ensure the identity of a current or former
employee. If the employer provides copies of the records, the actual
cost of reproduction may be charged to the current or former
employee.

(c) An employer who receives a written or oral request to inspect
or copy records pursuant to subdivision (b) pertaining to a current
or former employee shall comply with the request as soon as
practicable, but no later than 21 calendar days from the date of the
request. A violation of this subdivision is an infraction.
Impossibility of performance, not caused by or a result of a
violation of law, shall be an affirmative defense for an employer
in any action alleging a violation of this subdivision. An employer
may designate the person to whom a request under this subdivision
will be made.

(d) This section does not apply to any employer of any person
employed by the owner or occupant of a residential dwelling whose
duties are incidental to the ownership, maintenance, or use of the
dwelling, including the care and supervision of children, or whose
duties are personal and not in the course of the trade, business,
profession, or occupation of the owner or occupant.

(e) (1) An employee suffering injury as a result of a knowing
and intentional failure by an employer to comply with subdivision
(a) is entitled to recover the greater of all actual damages or fifty
dollars ($50) for the initial pay period in which a violation occurs
and one hundred dollars ($100) per employee for each violation
in a subsequent pay period, not to exceed an aggregate penalty of
four thousand dollars ($4,000), and is entitled to an award of costs
and reasonable attorney’s fees.

(2) (A) An employee is deemed to suffer injury for purposes
of this subdivision if the employer fails to provide a wage
statement.

(B) An employee is deemed to suffer injury for purposes of this
subdivision if the employer fails to provide accurate and complete
information as required by any one or more of items (1) to (9),
inclusive, of subdivision (a) and the employee cannot promptly
and easily determine from the wage statement alone one or more
of the following:

(i) The amount of the gross wages or net wages paid to the
employee during the pay period or any of the other information
required to be provided on the itemized wage statement pursuant
to items (2) to (4), inclusive, (6), and (9) of subdivision (a).

(ii) Which deductions the employer made from gross wages to
determine the net wages paid to the employee during the pay
period. Nothing in this subdivision alters the ability of the employer
to aggregate deductions consistent with the requirements of item
(4) of subdivision (a).

(iii) The name and address of the employer and, if the employer
is a farm labor contractor, as defined in subdivision (b) of Section
1682, the name and address of the legal entity that secured the
services of the employer during the pay period.

(iv) The name of the employee and only the last four digits of
his or her social security number or an employee identification
number other than a social security number.

(C) For purposes of this paragraph, “promptly and easily
determine” means a reasonable person would be able to readily
ascertain the information without reference to other documents or
information.

(3) For purposes of this subdivision, a “knowing and intentional
failure” does not include an isolated and unintentional payroll error
due to a clerical or inadvertent mistake. In reviewing for
compliance with this section, the factfinder may consider as a
relevant factor whether the employer, prior to an alleged violation,
has adopted and is in compliance with a set of policies, procedures,
and practices that fully comply with this section.

(f) A failure by an employer to permit a current or former
employee to inspect or copy records within the time set forth in
subdivision (c) entitles the current or former employee or the Labor
Commissioner to recover a seven-hundred-fifty-dollar ($750)
penalty from the employer.

(g) The listing by an employer of the name and address of the
legal entity that secured the services of the employer in the itemized
statement required by subdivision (a) shall not create any liability
on the part of that legal entity.

(h) An employee may also bring an action for injunctive relief
to ensure compliance with this section, and is entitled to an award
of costs and reasonable attorney’s fees.

(i) This section does not apply to the state, to any city, county,
city and county, district, or to any other governmental entity, except
that if the state or a city, county, city and county, district, or other
governmental entity furnishes its employees with a check, draft,
or voucher paying the employee’s wages, the state or a city, county,
city and county, district, or other governmental entity shall use no
more than the last four digits of the employee’s social security
number or shall use an employee identification number other than
the social security number on the itemized statement provided with
the check, draft, or voucher.

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