BILL ANALYSIS
AB 1000
Page 1
Date of Hearing: April 27, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1000 (Ma and Skinner) - As Introduced: February 27, 2009
SUBJECT : EMPLOYMENT: PAID SICK DAYS
KEY ISSUE : IN ORDER TO PROTECT CO-WORKERS FROM EXPOSURE TO
ILLNESS AND PROVIDE FAIR ALTERNATIVES TO WORKING PARENTS WITH
SICK CHILDREN, SHOULD EMPLOYERS BE REQUIRED TO PROVIDE PAID SICK
DAYS FOR ANY EMPLOYEE WHO WORKS FOR SEVEN OR MORE DAYS IN A
CALENDAR YEAR?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This bill is identical to last year's AB 2716, which passed this
Committee by a 7-3 vote but was then held on suspense in the
Senate Appropriations Committee. This bill, sponsored by the
California Labor Federation and California ACORN, creates the
Healthy Families, Healthy Workplaces Act of 2009 which requires
employers to provide paid sick days for an employee who works
for seven or more days in a calendar year. According to the
author's office, 40 percent of all workers in California do not
have any paid sick days through their employer. The author
states that this bill appropriately allows workers to earn paid
sick days, which they can use for personal illness, to care for
a sick family member and to recover from domestic violence or
assault. The author argues that studies have found that
providing sick days to workers saves money for businesses by
reducing turnover, reducing the spread of illness in the
workplace, and improving workers' morale and productivity. The
sponsors state that the lack of paid sick days is a public
health hazard. The sponsors also state that this bill will
increase productivity since the productivity of workers with
even minor illnesses goes down compared to the productivity of
their healthy co-workers. Finally, the author states that this
bill will prevent parents from choosing between caring for a
sick child and work obligations. Opponents, including the
California Employment Law Council and the California Chamber of
Commerce, argue that this bill would unreasonably expand
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employers' costs and liability. Opponents also state that many
California employers provide paid sick leave and/or paid
vacation time even though current law does not require it.
Opponents conclude that in an already troubled economy
California should be seeking ways to stimulate job growth and
avoid forcing costly mandates on employers.
SUMMARY : Creates the Healthy Families, Healthy Workplaces Act
of 2009, which requires employers to provide paid sick days for
an employee who works for seven or more days in a calendar year.
Specifically, this bill :
1)Provides that an employee who works in California for 7 or
more days in a calendar year is entitled to paid sick days,
accrued at a rate of no less than one hour for every 30 hours
worked.
2)Provides that an employee would be entitled to use accrued
sick days beginning on the 90th calendar day of employment.
3)Requires employers to provide paid sick days, on the
employee's request, for the following purposes:
a) for diagnosis, care, or treatment of health conditions
of either the employee or an employee's family member, or
b) for leave related to domestic violence or sexual assault
4)Prohibits an employer from denying an employee the right to
use sick days, or discharging or threatening to discharge,
demote, suspend, or in any manner discriminating against an
employee for using sick days, attempting to exercise the right
to use sick days, filing a complaint with the Department or in
court alleging a violation of this article, cooperating in an
investigation or prosecution of an alleged violation of this
article, or opposing any policy, practice, or act that is
prohibited by this article.
5)Provides that there will be a rebuttable presumption of
unlawful retaliation if an employer discriminates in the above
ways against an employee within 90 days of: the employee
filing a complaint with the Labor Commissioner or in court;
the employee cooperating in an investigation or prosecution of
an alleged violation; or the employee opposing a policy,
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practice, or act prohibited by this article.
6)Requires employers to give written notice to each employee in
English, Spanish, Chinese, and any other language spoken by at
least 5% of employees, stating that an employee has the right
to accrue, request, and use paid sick days; the amount of paid
sick days entitled to; terms of use of paid sick days; and
that retaliation/discrimination is prohibited and an employee
has the right to file a complaint or bring a civil action for
violations.
7)Requires employers to display a poster in a conspicuous place
in each workplace, with all of the information regarding
employees' rights that is required in the written notice.
8)Provides that employers who willfully violate the notice and
posting requirements are subject to a civil penalty of not
more than $100 per offense.
9)Requires the Labor Commissioner to administer and enforce the
requirements, including promulgation of regulations,
investigation, mitigation, and relief of violations.
10)Authorizes the Labor Commissioner to impose specified fines
for violations.
11)Authorizes the aggrieved person, the Labor Commissioner, the
Attorney General, or the aggrieved person's organization to
bring an action for civil penalties against an offender, as
well as attorneys' fees, costs, and interest.
12)Specifies that the requirements do not apply to employees
covered by a collective bargaining agreement that provides for
paid sick days, nor does the bill lessen any other obligations
of the employer to employees.
13)Specifies that the requirements do not apply to employees in
the construction industry covered by a collective bargaining
agreement if the agreement expressly waives the requirements
of this article in clear and unambiguous terms.
14)Specifies that the requirements do apply to certain public
authorities, established to deliver in-home supportive
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services, except where a collective bargaining agreement
provides for an incremental wage increase sufficient to
satisfy the bill's requirements for accrual of sick days.
15)Provides that a small business employer (defined as an
employer with 10 or fewer employees during 20 or more work
weeks in the current or preceding calendar year) can limit an
employee's use of sick days to 40 hours, or 5 days, in each
calendar year.
16)Provides that all other employers (not small business) may
limit an employee's use to 72 hours, or 9 days, in each
calendar year.
17)Requires employers to keep records for at least 5 years
documenting hours worked and paid sick days accrued and used
by employees.
18)Authorizes the Labor Commissioner, if he or she determines
after a hearing that the employer has violated this article,
to order appropriate relief, including reinstatement, backpay,
payment of sick days unlawfully withheld, and payment of an
administrative penalty to the person whose rights were
violated; if paid sick days were withheld unlawfully, the
dollar amount of sick days withheld multiplied by three, or
$250, whichever is greater, will be included in the
administrative penalty; in addition, if other harm was caused
to the person by the violation (such as discharge from
employment), the administrative penalty shall also include $50
for each day or portion thereof that the violation occurred or
continued.
19)Authorizes the Labor Commissioner to take enforcement action
such as filing a civil action if prompt compliance is not
forthcoming by an employer; authorizes the Labor Commissioner
to order the employer to pay not more than $50 per day a
violation occurs to compensate the state for the costs of
remedying the violation.
20)Authorizes the Labor Commissioner, the Attorney General, a
person aggrieved by a violation, or an entity a member of
which is aggrieved, to bring a civil action in court against
the employer or other person violating this article. Provides
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that upon prevailing, the party filing suit shall be entitled
to appropriate legal or equitable relief to remedy the
violation, including reinstatement; backpay; payment of sick
days unlawfully withheld; payment of liquidated damages of $50
to each employee whose rights were violated; plus the dollar
amount of paid sick days withheld from the employee multiplied
by three or $250, whichever is greater; reasonable attorneys'
fees and costs.
21)Provides that in an administrative or civil action, the Labor
Commissioner or the court shall award interest on all amounts
due and unpaid, at the rate of interest specified in Civil
Code section 3289(b).
22)Provides that the remedies, penalties, and procedures
provided are cumulative.
EXISTING LAW requires, under the Moore-Brown-Roberti California
Family Rights Act, employers with 50 or more employees to
provide covered employees, upon request, with up to 12 weeks of
protected unpaid leave during any 12-month period for the
following reasons:
1)For the birth of a child or the placement of a child in
connection with the adoption or placement in foster care of
the child with the employee;
2)To care for a parent, spouse or child with a serious health
condition; or,
3)Because of the employee's own serious health condition.
(Government Code Sections 12945.1 et seq.)
COMMENTS : This bill is identical to last year's AB 2716, which
passed this Committee by a vote of 7 to 3 but was then held on
suspense in the Senate Appropriations Committee. This bill is
sponsored by the California Labor Federation, AFL-CIO and
California ACORN and is intended to address the current
situation in which a reported 6 million California workers (or
about 40 percent of the workforce) are not provided paid sick
days through their employer.
The author's office states that this bill allows workers to earn
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paid sick days, which they can use for personal illness, to care
for a sick family member and to recover from domestic violence
or assault. The author argues that studies have found that
providing sick days to workers saves money for businesses by
reducing turnover, reducing the spread of illness in the
workplace and improving workers' morale and productivity. The
sponsors state that the lack of paid sick days is a public
health hazard. According to the sponsors, the Centers for
Disease Control recommends workers who are ill "stay home from
work and school" to prevent the spread of disease in the
community and workplace. The sponsors also state that this bill
will increase productivity since the productivity of workers
with even minor illnesses goes down compared to the productivity
of their healthy co-workers. Finally, the author states that
this bill will prevent parents from choosing between caring for
a sick child and work obligations.
Various Reports and Studies Indicate a Need for Paid Sick Leave
and Highlight its Benefits: According to the Labor Project for
Working Families (LPWF), 6 million working Californians do not
have paid sick days. LPWF states that 76% of low-wage workers
have no paid sick days and have no choice but to go to work sick
and send their sick children to either school or child care.
According to LPWF, sick workers risk spreading contagion to the
public and are more likely to have an accident on the job.
According to a 2003 Kaiser Family Foundation Report, half of all
U.S. women forego pay when they stay home to take care of a sick
child (Women, Work, and Family Health: A Balancing Act, Henry J.
Kaiser Family Foundation, April 2003). A recent study,
conducted by the Institute for Women's Policy Research, which
used data collected by the U.S. Bureau of Labor Statistics, U.S.
Department of Health and Human Services, California Employment
Development Department and U.S. Census Bureau to evaluate the
likely impact of the previous year's identical bill found, among
other things: "If this bill becomes law, California employers
would pay just $1.3 million annually for wages and associated
costs to workers who take leave; savings to employers would
total $2.3 million annually, mainly from reduced costs of
turnover; and, workers and their families would experience lower
expenditures for health-care services, saving $7 million
annually." (Valuing Good Health in California: The Costs and
Benefits of the Healthy Families, Healthy Workplaces Act of
2008, Institute for Women's Policy Research, April 2008.)
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The author cites a Field Research poll from August 2008, which
shows that Californians overwhelmingly support guaranteed paid
sick days-73% of California adults surveyed stated that they
would support a law guaranteeing paid sick days for all
Californian workers. This support crosses party, gender, and
ethnic lines. Moreover, 76% of those surveyed said that paid
sick days should be considered a basic worker right, like a
decent wage.
Proposition F (San Francisco Ordinance Chapter 12W) Requires
Paid Sick Leave of All San Francisco Employers : In 2006, San
Francisco voters approved Proposition F, the first law in the
nation that provided workers with the ability to earn and use
paid sick days. That measure was implemented and is enforced by
the San Francisco Office of Labor Standards Enforcement (OLSE).
OLSE reports that there is no hard data as to the utilization of
sick leave under the San Francisco law, or of its impact on
employers or employees. OLSE reports that it had approximately
35 formal complaints the first year of the law and sent an
additional 35 cautionary letters to employers about whom
anonymous workers had contacted the office.
Similar Efforts at the National, State and Federal Levels : Paid
sick days legislation has been proposed at the federal, state
and local levels. For several years, a federal Healthy Families
Act has been proposed that would ensure that all employees
working 30 or hours more per week have seven paid sick days a
year. At least fourteen states have proposed legislation for
paid sick days over the last two years. As discussed above, a
San Francisco ordinance enacted in 2006 provides paid sick days
for all workers employed in the city. A similar measure was
narrowly defeated in Madison, Wisconsin.
ARGUMENTS IN SUPPORT : The author states, "[This bill] is a
win-win for both workers and employers. In fact, a recent study
conducted by the Women's Policy Research Institute concluded
that by allowing workers to earn paid sick days, the amount
which could be saved annually by employers could reach up to $1
billion. These cost savings are primarily attributed to the
cost of the reduction of worker turnover."
Proponents of this measure cite to various studies and reports
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in support of this legislation. First, supporters contend that
lack of paid sick days is a public health hazard, pointing out
that the Centers for Disease Control recommend workers who are
ill "stay home from work and school" to prevent the spread of
disease. However, only 15 percent of food service workers in
restaurants and food processing plants have paid sick days
(Hartmann, Heidi, Ph.D., Public Testimony, February 2007 hearing
on the federal Healthy Families Act). Supporters also contend
that the risk of occupational health hazard is increased in
industries without paid sick days, and that 51% of all mining
employees, 73% of sanitation workers, and nearly 500,000
manufacturing employees do not have access to paid sick days
(2006 National Compensation Survey Analysis by the Labor Project
for Working Families).
Proponents also argue that paid sick days reduce the costs of
employee turnover because employees with paid sick days are less
likely to leave their jobs (V. Lovell (2005) Valuing Good
Health: An Estimate of Costs and Savings for the Healthy
Families Act. Washington, D.C.: Institute for Women's Policy
Research). Every time an employee leaves a job, it costs the
employer 25% of a worker's total compensation, on average, to
replace that worker. (Employment Policy Foundation. (2002).
"Employee Turnover - A Critical Human Resource Benchmark." HR
Benchmarks. (December 3): 1-5.)
Finally, supporters argue that the workers with even minor
illnesses are less productive than their healthy co-workers.
(Smith, A. (1989) "A Review of the Effects of Colds and
Influenza on Human Performance." Journal of the Society of
Occupational Medicine. 39: 65-68.) Moreover, sick workers, or
workers with sick loved ones, who are able to take paid sick
days recover faster from illnesses than those who are forced to
go to work. Therefore, supporters conclude that paid sick days
actually increase employee productivity.
ARGUMENTS IN OPPOSITION : Opponents argue that the
ever-increasing burden of costly mandates on employers can
cumulatively result in lower wages, reducing available health
insurance, limiting training programs, and even job loss or
reduced work hours. California's declining tax base leads to
decreases in state revenues, further job loss, and increased
demand for unemployment insurance.
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Opponents cite to a study by the National Federation of
Independent Business that predicted that, under last year's bill
mandating paid sick leave, an estimated 370,000 more jobs would
have been lost over five years. They contend that in an already
troubled economy, California should be seeking ways to stimulate
job growth and recovery, not imposing costly mandates on
employers.
Several public sector employers oppose this bill, arguing that
leave policies are part of a total compensation and benefits
package that should be determined locally. In addition, the
administrative burdens and additional costs to provide sick
leave will severely restrict the use of extra help and seasonal
employees, which in turn will increase costs and reduce the
effectiveness of public services.
They also argue that this bill poses a particular problem for
In-Home Supportive Services (IHSS) employees who do not work a
traditional scheduled work week. IHSS providers are paid for
services provided and calculated by the hours they work. This
program is funded by a mix of federal, state, and local funds.
Opponents contend that federal reimbursement would not be
available for sick leave hours and it is not clear what portion
of the cost the state would share. They estimate the annual
statewide liability for providing paid sick days to IHSS
providers to be $13 million (based on about 39 million hours
worked in 2008 at an average salary of $9.98 per hour).
PRIOR LEGISLATION : AB 2716 (Ma) of 2008 was identical to this
bill. AB 2716 would have provided that an employee was entitled
to paid sick days which would have been accrued at a rate of no
less than one hour for every 30 hours worked. Employers also
would have been required to provide paid sick days, upon
request, for diagnosis, care, or treatment of health conditions
of the employee or an employee's family member, or for leave
related to domestic violence or sexual abuse. The bill would
have required employers to satisfy specific posting and notice
and recordkeeping requirements. Status: Died, Sen Approps.
REGISTERED SUPPORT/OPPOSITION :
Support
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9to5 National Association of Working Women
American Civil Liberties Union
American Federation of State, County and Municipal Employees
California ACORN
California Commission on the Status of Women
California Communities United Institute
California Conference Board of the Amalgamated Transit Union
California Federation of Teachers
California Labor Federation, AFL-CIO
California Nurses Association/National Nurses Organizing
Committee
California Professional Firefighters
California Rural Legal Assistance Foundation
California School Employees Association
California Teamsters Public Affairs Council
Engineers and Scientists of California
Family Caregiver Alliance
ILWU, Local 6
International Longshore & Warehouse Union
Jericho
Labor Project for Working Families
Los Angeles Caregiver Resource Center
Numerous Individuals
Paid Family Leave Collaborative
Professional & Technical Engineers, Local 21
Strategic Committee of Public Employees, LIUNA
UAW, Local 2865
UNITE HERE!
United Domestic Workers of America/AFSCME
United Food and Commercial Workers Union, Western States Council
United Transportation Union
United Nurses Association of California/Union of Health Care
Professionals
Opposition
Associated Builders and Contractors of California
Associated General Contractors of California
Association of California Healthcare Districts
Association of California Water Districts
Automotive Aftermarket Industry Association
California Apartment Association
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California Association of Collectors
California Association of Health Services at Home
California Association of Joint Powers Authorities
California Automotive Wholesalers' Association
California Bankers Association
California Business Properties Association
California Chamber of Commerce
California Chapter of the American Fence Contractors'
Association
California Construction and Industrial Materials Association
California Employment Law Council
California Farm Bureau Federation
California Fence Contractors' Association
California Grocers Association
California Hospital Association
California Hotel and Lodging Association
California Independent Grocers Association
California Landscape Contractors Association
California League of Food Processors
California New Car Dealers Association
California Newspaper Publishers Association
California Restaurant Association
California Retailers Association
California Special Districts Association
California State Association of Counties
Canal Street Grille
Carmelitas
Colombo's Restaurant
Crow's Nest Restaurant
CSAC Excess Insurance Authority
Delaware North
Downtown Dining
Employers Group
Engineering Contractors' Association
Far West Equipment Dealers Association
Flasher/Barricade Association
Garden Fresh Restaurant Corp
Gourmet Fresh Pasta
Granite Bay Golf Club
Howard Jarvis Taxpayers Association
International Franchise Association
League of California Cities
Ledyard Co.
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Lumber Association of California and Nevada
Lyon's of California, Inc.
Marin Builders' Association
McGrath Rentcorp
National Federation of Independent Business
National Right to Work Committee
Numerous Individuals
Paradise Beach Grille
Patisserie Boissiere Restaurant & Patisserie
Regional Council of Rural Counties
Rio Grill Restaurant
Sal's Mexican Restaurants
Shadowbrook Restaurant
State Farm Insurance Companies
Stevenson Restaurants, Inc.
Tomatina
Tresetti's World Caffe
Valley Industry and Commerce Association
Western Electrical Contractors Association
Western Growers
Analysis Prepared by : Drew Liebert and Rachel Anderson / JUD. /
(916) 319-2334