BILL NUMBER: SB 579 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 2, 2015
AMENDED IN SENATE APRIL 15, 2015
INTRODUCED BY Senator Jackson
FEBRUARY 26, 2015
An act to amend Sections 230.8, 233, 245.5, and 246.5
230.8 and 233 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 would revise references to a day care
facility to instead refer to a child care provider. The bill would
include the addressing of a child care provider emergency
or a school emergency, as defined, and the finding, enrolling,
or reenrolling of a child in a school or day
with a child care facility provider
as activities for which a parent, guardian, or grandparent
having custody of a child shall not be discriminated against or
discharged, as described above. The bill w ould
extend these protections to an employee who is a stepparent or foster
parent or who stands in loco parentis to a child.
(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.
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.
This bill would additionally instead
require an employer to permit an employee to use sick leave
to address a child care or school emergency, as defined, or attend
to the preventive care of a child, parent, spouse, or domestic
partner, for the purposes specified in the Healthy
Workplaces, Healthy Families Act of 2014, 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.
(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.
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.
Vote: majority. Appropriation: no. Fiscal committee: 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, guardian,
stepparent, foster parent, or grandparent having custody
of of, or an employee who stands in loco
parentis to, one or more children of the age to attend
kindergarten or grades 1 to 12, inclusive, or a licensed child
day care facility,
provider, for taking off up to 40 hours each year, not
exceeding eight hours in any calendar month of the year,
for the purpose of either of the following child-related
activities, if the employee, prior to taking the time off, gives
reasonable notice to the employer of the planned absence of the
employee: activities:
(A) To find, enroll, or reenroll his or her child in a school or
with a licensed day child
care facility. 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 participate in activities of the school or licensed day
care facility of his or her child.
(B) To address a child care provider or school emergency, if the
employee gives notice to the employer.
(2) If both parents of a child are 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 the
other 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 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 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) 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 day
care facility 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
day care facility provider
deems appropriate and reasonable.
(d) Any employee who is discharged, threatened with discharge,
demoted, suspended, or in any other manner discriminated against in
terms and conditions of employment by his or her employer because the
employee has taken 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. 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) For purposes of this section, "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:
(1) 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.
(2) Behavioral or discipline problems.
(3) Closure or unexpected unavailability of the school or child
care provider, excluding planned holidays.
(4) A natural disaster, including, but not limited to, fire,
earthquake, or flood.
SEC. 2. Section 233 of the Labor Code is amended to read:
233. (a) Any employer who provides sick leave for employees shall
permit an employee to use in any calendar year the employee's
accrued and available sick leave entitlement, in an amount not less
than the sick leave that would be accrued during six months at the
employee's then current rate of entitlement, to attend to an
illness or the preventive care of a child, parent, spouse, or
domestic partner of the employee, or to address a child care or
school emergency. All conditions and restrictions placed by the
employer upon the use by an employee of sick leave also shall apply
to the use by an employee of sick leave to attend to an illness or
the preventive care of his or her child, parent, spouse, or domestic
partner, or to address a child care or school emergency.
for the reasons specified in subdivision (a) of Section 246.5.
This section does not extend the maximum period of leave to
which an employee is entitled under Section 12945.2 of the Government
Code or under the federal Family and Medical Leave Act of 1993 (29
U.S.C. Sec. 2601 et seq.), regardless of whether the employee
receives sick leave compensation during that leave.
(b) As used in this section:
(1) "Child" means a biological, foster, or adopted child, a
stepchild, a legal ward, a child of a domestic partner, or a child of
a person standing in loco parentis.
(2) "Child care or school emergency" means that an employee's
child cannot remain in a school or child care facility due to one of
the following:
(A) Illness of, or injury to, the child.
(B) Behavioral or discipline problems.
(C) Closure of the facility.
(D) A disaster or extreme weather conditions, including, but not
limited to, fire, earthquake, or flood.
(3)
(1) "Employer" means any person employing another under
any appointment or contract of hire and includes the state,
political subdivisions of the state, and municipalities.
(4) "Parent" means a biological, foster, or adoptive parent, a
stepparent, or a legal guardian.
(2) "Family member" has the same meaning as defined in Section
245.5.
(5)
(3) (A) "Sick leave" means accrued increments of
compensated leave provided by an employer to an employee as a benefit
of the employment for use by the employee during an absence from the
employment for any of the following reasons:
(i) The employee is physically or mentally unable to perform his
or her duties due to illness, injury, or a medical condition of the
employee.
(ii) The absence is for the purpose of obtaining professional
diagnosis or treatment for a medical condition of the employee.
(iii) The absence is for other medical reasons of the employee,
such as pregnancy or obtaining a physical examination.
(iv) The absence is to attend to an illness or the preventive care
of a child, parent, spouse, or domestic partner of the employee.
(v) The absence is to address a child care or school emergency.
(B) "Sick leave" does not include any benefit provided under an
employee welfare benefit plan subject to the federal Employee
Retirement Income Security Act of 1974 (Public Law 93-406, as
amended) and does not include any insurance benefit, workers'
compensation benefit, unemployment compensation disability benefit,
or benefit not payable from the employer's general assets.
(c) An employer shall not deny an employee the right to use sick
leave or discharge, threaten to discharge, demote, suspend, or in any
manner discriminate against an employee for using, or attempting to
exercise the right to use, sick leave to attend to an illness or the
preventive care of a child, parent, spouse, or domestic
partner of the employee, or to address a child care or school
emergency. family member, or for any other reason
specified in Section 246.5.
(d) Any employee aggrieved by a violation of this section shall be
entitled to reinstatement and actual damages or one day's pay,
whichever is greater, and to appropriate equitable relief.
(e) Upon the filing of a complaint by an employee, the Labor
Commissioner shall enforce this section in accordance with Chapter 4
(commencing with Section 79) of Division 1, including, but not
limited to, Sections 92, 96.7, 98, and 98.1 to 98.8, inclusive.
Alternatively, an employee may bring a civil action for the remedies
provided by this section in a court of competent jurisdiction. If the
employee prevails, the court may award reasonable attorney's fees.
(f) The rights and remedies specified in this section are
cumulative and nonexclusive and are in addition to any other rights
or remedies afforded by contract or under other law.
SEC. 3. Section 245.5 of the Labor Code is
amended to read:
245.5. As used in this article:
(a) "Child care or school emergency" means that an employee's
child cannot remain in a school or child care facility due to one of
the following:
(1) Illness of, or injury to, the child.
(2) Behavioral or discipline problems.
(3) Closure of the facility.
(4) A disaster or extreme weather conditions, including, but not
limited to, fire, earthquake, or flood.
(b) "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. 181 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.
(c) "Employer" means any person employing another under any
appointment or contract of hire and includes the state, political
subdivisions of the state, and municipalities.
(d) "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.
(e) "Health care provider" has the same meaning as defined in
paragraph (6) of subdivision (c) of Section 12945.2 of the Government
Code.
(f) "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. 4. Section 246.5 of the Labor Code is
amended to read:
246.5. (a) Upon the oral or written request of an employee, an
employer shall provide paid sick days for the following purposes:
(1) Diagnosis, care, or treatment of an existing health condition
of, or preventive care for, an employee or an employee's family
member.
(2) To address a child care or school emergency.
(3) For an employee who is a victim of domestic violence, sexual
assault, or stalking, the purposes described in subdivision (c) of
Section 230 and subdivision (a) of Section 230.1.
(b) An employer shall not require as a condition of using paid
sick days that the employee search for or find a replacement worker
to cover the days during which the employee uses paid sick days.
(c) (1) An employer shall not deny an employee the right to use
accrued sick days, discharge, threaten to discharge, demote, suspend,
or in any manner discriminate against an employee for using accrued
sick days, attempting to exercise the right to use accrued sick days,
filing a complaint with the department or alleging a violation of
this article, cooperating in an investigation or prosecution of an
alleged violation of this article, or opposing any policy or practice
or act that is prohibited by this article.
(2) There shall be a rebuttable presumption of unlawful
retaliation if an employer denies an employee the right to use
accrued sick days, discharges, threatens to discharge, demotes,
suspends, or in any manner discriminates against an employee within
30 days of any of the following:
(A) The filing of a complaint by the employee with the Labor
Commissioner or alleging a violation of this article.
(B) The cooperation of an employee with an investigation or
prosecution of an alleged violation of this article.
(C) Opposition by the employee to a policy, practice, or act that
is prohibited by this article.