BILL NUMBER: AB 2405 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 18, 2016
INTRODUCED BY Assembly Member Gatto
FEBRUARY 19, 2016
An act to amend Section 226 230.8 of
the Labor Code, relating to wages. employme
nt.
LEGISLATIVE COUNSEL'S DIGEST
AB 2405, as amended, Gatto. Employment: wages: itemized
statements. employees: time off.
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.
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.
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.
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.
This bill would make nonsubstantive changes to that requirement.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 230.8 of the Labor
Code is amended to read:
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 shall may
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. The
(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.
(3) Except as set forth in paragraph
(2), the 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.
(2)
(4) 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 denied time off under this section,
discharged, threatened with discharge, demoted, suspended, or
in any other manner discriminated or retaliated against in
terms and conditions of employment by his or her employer because
the employee has taken or requested 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 employer.
employer, and appropriate equitable relief. Any
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.
(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.
(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:
(1) An employee is entitled to accrue, request, and use 24 hours
of paid time off for their child's school-related activities.
(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.
(e)
(g) 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.
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.