Amended in Assembly July 16, 2015

Amended in Senate June 2, 2015

Amended in Senate April 15, 2015

Senate Bill No. 579

Introduced by Senator Jackson

begin insert

(Coauthor: Assembly Member Cristina Garcia)

end insert

February 26, 2015

An act to amend Sections 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 begin insert child end insert 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 with a child care provider as activities for which a begin delete parent, guardian, or grandparent end delete begin insert parent end insert having custody of a child shall not be discriminated against or discharged, as described above. The bill would begin delete extend end delete begin insert define “parent” for these purposes as a parent, guardian, stepparent, foster parent, or grandparent of, or a person who stands in loco parentis to, a child, thereby extending end insert 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. begin insert Existing law defines “sick leave” for these purposes as leave provided for use by the employee during an absence from employment for specified reasons, including, but not limited to, an employee’s inability to perform his or her duties due to illness, injury, or a medical condition of the employee. end 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, begin delete grandchild, end delete begin insert grandchildren, end insert and siblings.

This bill would instead require an employer to permit an employee to use sick leave for the purposes specified in the Healthy Workplaces, Healthy Families Act of 2014, begin insert would redefine “sick leave” as leave provided for use by the employee during an absence from employment for these purposes, 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.

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 begin delete parent,
guardian, stepparent, foster parent, or grandparent having custody
of, or an employee who stands in loco parentis to, end delete begin insert parent of end insert 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 begin delete both parents end delete begin insert more than one parent end insert of a child begin delete are end delete begin insert is end insert
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 begin delete the other end delete begin insert another end insert 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 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 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, begin delete “child end delete begin insert the following terms have
the following meanings: end insert

begin insert

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

end insert

begin insert (2) end insert begin insert   end insert begin insert “Child end insert 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:

begin delete

(1)

end delete

begin insert (A) end insert  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.

begin delete

(2)

end delete

begin insert (B) end insert  Behavioral or discipline problems.

begin delete

(3)

end delete

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

begin delete

(4)

end delete

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

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

(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 begin delete following reasons: end delete begin insert reasons specified
in subdivision (a) of Section 246.5. end insert

begin delete

(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.

end delete

(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 family member, or for any other
reason specified in begin insert subdivision (a) of end insert 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.