Amended in Senate June 2, 2015

Amended in Senate April 15, 2015

Senate BillNo. 579


Introduced by Senator Jackson

February 26, 2015


An act to amend Sectionsbegin delete 230.8, 233, 245.5, and 246.5end deletebegin insert 230.8 and 233end insert of the Labor Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

SB 579, as amended, Jackson. Employees: time off.

(1) 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, guardian, or grandparent 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 for the purpose of participating in school activities, subject to specified conditions. Existing law requires an employee to provide documentation regarding these activities upon request by an employer and provides remedies to employees discharged, demoted, or in any other manner discriminated against as a result of his or her exercise of this right to take time off.

This bill wouldbegin insert revise references to a day care facility to instead refer to a child care provider. The bill wouldend insert include thebegin insert addressing of a child care provider emergency or a school emergency, as defined, and theend insert finding, enrolling, or reenrolling of a child in a school orbegin delete dayend deletebegin insert with a childend insert carebegin delete facilityend deletebegin insert providerend insert as activities for which a parent, guardian, or grandparent having custody of a child shall not be discriminated against or discharged, as described above.begin insert The bill would extend these protections to an employee who is a stepparent or foster parent or who stands in loco parentis to a child.end insert

(2) Existing law requires an employer who provides sick leave for employees to permit an employee to use the employee’s accrued and available sick leave entitlement to attend to the illness of a child, parent, spouse, or domestic partner and prohibits an employer from denying an employee the right to use sick leave or taking specific discriminatory action against an employee for using, or attempting to exercise the right to use, sick leave to attend to such an illness.begin insert The Healthy Workplaces, Healthy Families Act of 2014 requires an employer, upon the request of an employee, to provide paid sick days for a victim of domestic violence or the diagnosis, care, or treatment of an existing health condition of, or preventive care for, the employee or the employee’s family member, which is defined as including, in addition to the above-described relatives, grandparents, grandchild, and siblings.end insert

This bill wouldbegin delete additionallyend deletebegin insert insteadend insert require an employer to permit an employee to use sick leavebegin delete to address a child care or school emergency, as defined, or attend to the preventive care of a child, parent, spouse, or domestic partner,end deletebegin insert for the purposes specified in the Healthy Workplaces, Healthy Families Act of 2014,end insert and would prohibit an employer from denying an employee the right to use sick leave or taking specific discriminatory action against an employee for using, or attempting to exercise the right to use, sick leave for these purposes.

begin delete

(3) The Healthy Workplaces, Healthy Families Act of 2014 requires an employer, upon the request of an employee, to provide paid sick days for the diagnosis, care, or treatment of an existing health condition of, or preventive care for, the employee or the employee’s family member, as specified.

end delete
begin delete

This bill would additionally require an employer to provide paid sick days upon the request of an employee to address a child care or school emergency, as defined.

end delete

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

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

P2    1

SECTION 1.  

Section 230.8 of the Labor Code is amended to
2read:

3

230.8.  

(a) (1) An employer who employs 25 or more
4employees working at the same location shall not discharge or in
P3    1any way discriminate against an employee who is a parent,
2guardian,begin insert stepparent, foster parent,end insert or grandparent having custody
3begin delete ofend deletebegin insert of, or an employee who stands in loco parentis to,end insert one or more
4children of the age to attend kindergarten or grades 1 to 12,
5inclusive, or a licensed childbegin delete dayend delete carebegin delete facility,end deletebegin insert provider,end insert for taking
6off up to 40 hours each year,begin delete not exceeding eight hours in any
7calendar month of the year,end delete
for the purpose of either of the
8following child-relatedbegin delete activities, if the employee, prior to taking
9the time off, gives reasonable notice to the employer of the planned
10absence of the employee:end delete
begin insert activities:end insert

11(A) To find, enroll, or reenroll his or her child in a school or
12begin insert with aend insert licensedbegin delete dayend deletebegin insert childend insert carebegin delete facility.end deletebegin insert provider, or to participate
13in activities of the school or licensed child care provider of his or
14her child, if the employee, prior to taking the time off, gives
15reasonable notice to the employer of the planned absence of the
16employee. Time off pursuant to this subparagraph shall not exceed
17eight hours in any calendar month of the year.end insert

begin delete

18(B) To participate in activities of the school or licensed day care
19facility of his or her child.

end delete
begin insert

20(B) To address a child care provider or school emergency, if
21the employee gives notice to the employer.

end insert

22(2) If both parents of a child are employed by the same employer
23at the same worksite, the entitlement under paragraph (1) of a
24planned absence as to that child applies, at any one time, only to
25the parent who first gives notice to the employer, such that the
26other parent may take a planned absence simultaneously as to that
27same child under the conditions described in paragraph (1) only
28if he or she obtains the employer’s approval for the requested time
29off.

30(b) (1) The employee shall utilize existing vacation, personal
31leave, or compensatory time off for purposes of the planned
32absence authorized by this section, unless otherwise provided by
33a collective bargaining agreement entered into before January 1,
341995, and in effect on that date. An employee also may utilize time
35off without pay for this purpose, to the extent made available by
36his or her employer. The entitlement of any employee under this
37section shall not be diminished by any collective bargaining
38agreement term or condition that is agreed to on or after January
391, 1995.

P4    1(2) Notwithstanding paragraph (1), in the event that all
2permanent, full-time employees of an employer are accorded
3vacation during the same period of time in the calendar year, an
4employee of that employer may not utilize that accrued vacation
5benefit at any other time for purposes of the planned absence
6authorized by this section.

7(c) The employee, if requested by the employer, shall provide
8documentation from the school or licensed childbegin delete dayend delete carebegin delete facilityend delete
9begin insert providerend insert as proof that he or she engaged in child-related activities
10permitted in subdivision (a) on a specific date and at a particular
11time. For purposes of this subdivision, “documentation” means
12whatever written verification of parental participation the school
13or licensed childbegin delete dayend delete carebegin delete facilityend deletebegin insert providerend insert deems appropriate and
14reasonable.

15(d) Any employee who is discharged, threatened with discharge,
16demoted, suspended, or in any other manner discriminated against
17in terms and conditions of employment by his or her employer
18because the employee has taken time off to engage in child-related
19activities permitted in subdivision (a) shall be entitled to
20reinstatement and reimbursement for lost wages and work benefits
21caused by the acts of the employer. Any employer who willfully
22refuses to rehire, promote, or otherwise restore an employee or
23former employee who has been determined to be eligible for
24rehiring or promotion by a grievance procedure, arbitration, or
25hearing authorized by law shall be subject to a civil penalty in an
26amount equal to three times the amount of the employee’s lost
27wages and work benefits.

begin insert

28(e) For purposes of this section, “child care provider or school
29emergency” means that an employee’s child cannot remain in a
30school or with a child care provider due to one of the following:

end insert
begin insert

31(1) The school or child care provider has requested that the
32child be picked up, or has an attendance policy, excluding planned
33holidays, that prohibits the child from attending or requires the
34child to be picked up from the school or child care provider.

end insert
begin insert

35(2) Behavioral or discipline problems.

end insert
begin insert

36(3) Closure or unexpected unavailability of the school or child
37care provider, excluding planned holidays.

end insert
begin insert

38(4) A natural disaster, including, but not limited to, fire,
39earthquake, or flood.

end insert
40

SEC. 2.  

Section 233 of the Labor Code is amended to read:

P5    1

233.  

(a) Any employer who provides sick leave for employees
2shall permit an employee to use in any calendar year the
3employee’s accrued and available sick leave entitlement, in an
4amount not less than the sick leave that would be accrued during
5six months at the employee’s then current rate of entitlement, begin delete to
6attend to an illness or the preventive care of a child, parent, spouse,
7or domestic partner of the employee, or to address a child care or
8school emergency. All conditions and restrictions placed by the
9employer upon the use by an employee of sick leave also shall
10apply to the use by an employee of sick leave to attend to an illness
11or the preventive care of his or her child, parent, spouse, or
12domestic partner, or to address a child care or school emergency.end delete

13begin insert for the reasons specified in subdivision (a) of Section 246.5.end insert This
14section does not extend the maximum period of leave to which an
15employee is entitled under Section 12945.2 of the Government
16Code or under the federal Family and Medical Leave Act of 1993
17(29 U.S.C. Sec. 2601 et seq.), regardless of whether the employee
18receives sick leave compensation during that leave.

19(b) As used in this section:

begin delete

20(1) “Child” means a biological, foster, or adopted child, a
21stepchild, a legal ward, a child of a domestic partner, or a child of
22a person standing in loco parentis.

23(2) “Child care or school emergency” means that an employee’s
24child cannot remain in a school or child care facility due to one of
25the following:

26(A) Illness of, or injury to, the child.

27(B) Behavioral or discipline problems.

28(C) Closure of the facility.

29(D) A disaster or extreme weather conditions, including, but
30not limited to, fire, earthquake, or flood.

31(3)

end delete

32begin insert(1)end insert “Employer” means any person employing another under
33any appointment or contract of hire and includes the state, political
34subdivisions of the state, and municipalities.

begin delete

35(4) “Parent” means a biological, foster, or adoptive parent, a
36stepparent, or a legal guardian.

end delete
begin insert

37(2) “Family member” has the same meaning as defined in
38Section 245.5.

end insert
begin delete

39(5)

end delete

P6    1begin insert(3)end insert (A) “Sick leave” means accrued increments of compensated
2leave provided by an employer to an employee as a benefit of the
3employment for use by the employee during an absence from the
4employment for any of the following reasons:

5(i) The employee is physically or mentally unable to perform
6his or her duties due to illness, injury, or a medical condition of
7the employee.

8(ii) The absence is for the purpose of obtaining professional
9diagnosis or treatment for a medical condition of the employee.

10(iii) The absence is for other medical reasons of the employee,
11such as pregnancy or obtaining a physical examination.

begin delete

12(iv) The absence is to attend to an illness or the preventive care
13of a child, parent, spouse, or domestic partner of the employee.

end delete
begin delete

14(v) The absence is to address a child care or school emergency.

end delete

15(B) “Sick leave” does not include any benefit provided under
16an employee welfare benefit plan subject to the federal Employee
17Retirement Income Security Act of 1974 (Public Law 93-406, as
18amended) and does not include any insurance benefit, workers’
19compensation benefit, unemployment compensation disability
20benefit, or benefit not payable from the employer’s general assets.

21(c) An employer shall not deny an employee the right to use
22sick leave or discharge, threaten to discharge, demote, suspend,
23or in any manner discriminate against an employee for using, or
24attempting to exercise the right to use, sick leave to attend to an
25illness or the preventive care of a begin delete child, parent, spouse, or domestic
26partner of the employee, or to address a child care or school
27emergency.end delete
begin insert family member, or for any other reason specified in
28Section 246.5.end insert

29(d) Any employee aggrieved by a violation of this section shall
30be entitled to reinstatement and actual damages or one day’s pay,
31whichever is greater, and to appropriate equitable relief.

32(e) Upon the filing of a complaint by an employee, the Labor
33Commissioner shall enforce this section in accordance with Chapter
344 (commencing with Section 79) of Division 1, including, but not
35limited to, Sections 92, 96.7, 98, and 98.1 to 98.8, inclusive.
36Alternatively, an employee may bring a civil action for the
37remedies provided by this section in a court of competent
38jurisdiction. If the employee prevails, the court may award
39reasonable attorney’s fees.

P7    1(f) The rights and remedies specified in this section are
2cumulative and nonexclusive and are in addition to any other rights
3or remedies afforded by contract or under other law.

begin delete
4

SEC. 3.  

Section 245.5 of the Labor Code is amended to read:

5

245.5.  

As used in this article:

6(a) “Child care or school emergency” means that an employee’s
7child cannot remain in a school or child care facility due to one of
8the following:

9(1) Illness of, or injury to, the child.

10(2) Behavioral or discipline problems.

11(3) Closure of the facility.

12(4) A disaster or extreme weather conditions, including, but not
13limited to, fire, earthquake, or flood.

14(b) “Employee” does not include the following:

15(1) An employee covered by a valid collective bargaining
16agreement if the agreement expressly provides for the wages, hours
17of work, and working conditions of employees, and expressly
18provides for paid sick days or a paid leave or paid time off policy
19that permits the use of sick days for those employees, final and
20binding arbitration of disputes concerning the application of its
21paid sick days provisions, premium wage rates for all overtime
22hours worked, and regular hourly rate of pay of not less than 30
23percent more than the state minimum wage rate.

24(2) An employee in the construction industry covered by a valid
25collective bargaining agreement if the agreement expressly provides
26for the wages, hours of work, and working conditions of
27employees, premium wage rates for all overtime hours worked,
28and regular hourly pay of not less than 30 percent more than the
29state minimum wage rate, and the agreement either (A) was entered
30into before January 1, 2015, or (B) expressly waives the
31requirements of this article in clear and unambiguous terms. For
32purposes of this subparagraph, “employee in the construction
33industry” means an employee performing onsite work associated
34with construction, including work involving alteration, demolition,
35building, excavation, renovation, remodeling, maintenance,
36improvement, repair work, and any other work as described by
37Chapter 9 (commencing with Section 7000) of Division 3 of the
38Business and Professions Code, and other similar or related
39occupations or trades.

P8    1(3) A provider of in-home supportive services under Section
214132.95, 14132.952, or 14132.956 of, or Article 7 (commencing
3with Section 12300) of Chapter 3 of Part 3 of Division 9 of, the
4Welfare and Institutions Code.

5(4) An individual employed by an air carrier as a flight deck or
6cabin crew member that is subject to the provisions of Title II of
7the federal Railway Labor Act (45 U.S.C. Sec. 181 et seq.),
8provided that the individual is provided with compensated time
9off equal to or exceeding the amount established in paragraph (1)
10of subdivision (b) of Section 246.

11(c) “Employer” means any person employing another under any
12appointment or contract of hire and includes the state, political
13subdivisions of the state, and municipalities.

14(d) “Family member” means any of the following:

15(1) A child, which for purposes of this article means a biological,
16adopted, or foster child, stepchild, legal ward, or a child to whom
17the employee stands in loco parentis. This definition of a child is
18applicable regardless of age or dependency status.

19(2) A biological, adoptive, or foster parent, stepparent, or legal
20guardian of an employee or the employee’s spouse or registered
21domestic partner, or a person who stood in loco parentis when the
22employee was a minor child.

23(3) A spouse.

24(4) A registered domestic partner.

25(5) A grandparent.

26(6) A grandchild.

27(7) A sibling.

28(e) “Health care provider” has the same meaning as defined in
29paragraph (6) of subdivision (c) of Section 12945.2 of the
30Government Code.

31(f) “Paid sick days” means time that is compensated at the same
32wage as the employee normally earns during regular work hours
33and is provided by an employer to an employee for the purposes
34described in Section 246.5.

35

SEC. 4.  

Section 246.5 of the Labor Code is amended to read:

36

246.5.  

(a) Upon the oral or written request of an employee,
37an employer shall provide paid sick days for the following
38purposes:

P9    1(1) Diagnosis, care, or treatment of an existing health condition
2of, or preventive care for, an employee or an employee’s family
3member.

4(2) To address a child care or school emergency.

5(3) For an employee who is a victim of domestic violence, sexual
6assault, or stalking, the purposes described in subdivision (c) of
7Section 230 and subdivision (a) of Section 230.1.

8(b) An employer shall not require as a condition of using paid
9sick days that the employee search for or find a replacement worker
10to cover the days during which the employee uses paid sick days.

11(c) (1) An employer shall not deny an employee the right to
12use accrued sick days, discharge, threaten to discharge, demote,
13suspend, or in any manner discriminate against an employee for
14using accrued sick days, attempting to exercise the right to use
15accrued sick days, filing a complaint with the department or
16alleging a violation of this article, cooperating in an investigation
17or prosecution of an alleged violation of this article, or opposing
18any policy or practice or act that is prohibited by this article.

19(2) There shall be a rebuttable presumption of unlawful
20retaliation if an employer denies an employee the right to use
21accrued sick days, discharges, threatens to discharge, demotes,
22suspends, or in any manner discriminates against an employee
23within 30 days of any of the following:

24(A) The filing of a complaint by the employee with the Labor
25Commissioner or alleging a violation of this article.

26(B) The cooperation of an employee with an investigation or
27prosecution of an alleged violation of this article.

28(C) Opposition by the employee to a policy, practice, or act that
29is prohibited by this article.

end delete


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