California Legislature—2013–14 Regular Session

Assembly Bill No. 1522

Introduced by Assembly Member Gonzalez

January 16, 2014

An act to amend Section 226 of, and to add Article 1.5 (commencing with Section 245) to Chapter 1 of Part 1 of Division 2 of, the Labor Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

AB 1522, as introduced, Gonzalez. Employment: paid sick days.

Existing law authorizes employers to provide their employees paid sick leave.

This bill would provide that an employee, as defined, who works in California for 7 or more days in a calendar year is entitled to paid sick days, as defined, to be accrued at a rate of no less than one hour for every 30 hours worked. An employee would be entitled to use accrued sick days beginning on the 90th calendar day of employment. The bill would require employers to provide paid sick days, upon the request of the employee, 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 assault. An employer would be prohibited from discriminating or retaliating against an employee who requests paid sick days. The bill would require employers to satisfy specified posting and notice and recordkeeping requirements. The bill would also make conforming changes.

This bill would require the Labor Commissioner to administer and enforce these requirements, including the promulgation of regulations, investigation, mitigation, and relief of violations of these requirements. This bill would authorize the Labor Commissioner to impose specified administrative fines for violations and would authorize an aggrieved person, the commissioner, the Attorney General, or an entity a member of which is aggrieved to bring an action to recover specified civil penalties against an offender, as well as attorney’s fees, costs, and interest.

The bill would specify that it does not apply to employees covered by a collective bargaining agreement that provides for paid sick days, nor does it lessen any other obligations of the employer to employees. This bill would further specify that it does 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. However, the bill would specify that it applies to certain public authorities, established to deliver in-home supportive 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.

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.  

The Legislature finds and declares the following:

(a) Nearly every worker in the State of California will at some
time during the year need some time off from work to take care
of his or her own health or the health of family members.

(b) Many workers in California do not have any paid sick days,
or have an inadequate number of paid sick days, to care for their
own health or the health of family members.

(c) Low-income workers are significantly less likely to have
paid sick time than other workers.

(d) Providing workers time off to attend to their own health care
and the health care of family members will ensure a healthier and
more productive workforce in California.

(e) Paid sick days will have an enormously positive impact on
the public health of Californians by allowing sick workers paid
time off to care for themselves when ill, thus lessening their
recovery time and reducing the likelihood of spreading illness to
other members of the workforce.

(f) Paid sick days will allow parents to provide personal care
for their sick children. Parental care ensures children’s speedy
recovery, prevents more serious illnesses, and improves children’s
overall mental and physical health.

(g) Providing paid sick days is affordable for employers and
good for business.

(h) Employers who provide paid sick days enjoy greater
employee retention and reduce the likelihood of employees coming
to work sick. Studies have shown that costs of decreased
productivity caused by sick workers exceed the costs of employee
absenteeism.

(i) Many adults have significant elder care responsibilities
requiring them to take time off from work or to work reduced
hours.

(j) Employees frequently lose their jobs or are disciplined for
taking sick days to care for sick family members or to recover
from their own illnesses.

(k) Workers whose jobs involve significant contact with the
public, such as service workers and restaurant workers, are very
unlikely to have paid sick days. Often, these workers have no
choice but to come to work when they are ill, thereby spreading
illness to coworkers and customers.

(l) Domestic violence and sexual assault affect many persons
without regard to age, race, national origin, sexual orientation, or
socioeconomic status.

(m) Domestic violence is a crime that has a devastating effect
on families, communities, and the workplace. It impacts
productivity, effectiveness, absenteeism, and employee turnover
in the workplace. The National Crime Survey estimates that
175,000 days of work each year are missed due to domestic
violence.

(n) Survivors of domestic violence and sexual assault may be
vulnerable at work when trying to end an abusive relationship
because the workplace may be the only place where the perpetrator
knows to contact the victim. Studies show that up to one-half of
domestic violence victims experience job loss. Forty percent
reported on-the-job harassment. Nearly 50 percent of sexual assault
survivors lose their jobs or are forced to quit in the aftermath of
the assaults.

(o) Affording survivors of domestic violence and sexual assault
paid sick days is vital to their independence and recovery.

SEC. 2.  

In enacting this act, it is the intent of the Legislature
to do the following:

(a) Ensure that workers in California can address their own
health needs and the health needs of their families by requiring
employers to provide a minimum level of paid sick days including
time for family care.

(b) Decrease public and private health care costs in California
by enabling workers to seek early and routine medical care for
themselves and their family members and to address domestic
violence or sexual assault.

(c) Protect employees in California from losing their jobs while
they use sick days to care for themselves or their families.

(d) Provide economic security to employees in California who
take time off from work for reasons related to domestic violence
or sexual assault.

(e) Safeguard the welfare, health, safety, and prosperity of the
people of and visitors to California.

SEC. 3.  

Section 226 of the Labor Code is amended to read:

226.  

(a)  begin delete Every end delete begin insert An end insert employer shall, semimonthly or at the time
of each payment of wages, furnish begin delete each of his or her employees end delete
begin insert to each employee end insert , either as a detachable part of the check, draft,
or voucher paying the employee’s wages, or separately begin delete when end delete begin insert if end insert
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, begin delete except for any employee whose end delete
begin insert unless the employee’s end insert compensation is solely based on a salary
and begin delete who end delete begin insert the employee end insert is exempt from payment of overtime under
subdivision (a) of Section 515 or begin delete any end delete begin insert an end insert applicable order of the
Industrial Welfare Commission, (3) the number of piece-rate units
earned and begin delete any end delete begin insert the end insert 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, begin delete and end delete
(9) begin insert paid sick leave accrued and used pursuant to Article 1.5
(commencing with Section 245), and (10) end insert 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 begin delete any end delete begin insert a end insert 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 begin insert is made end insert under this
subdivision begin delete will be made end delete .

(d) This section does not apply to begin delete any end delete begin insert an end insert employer of begin delete any end delete begin insert a end insert
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 begin delete (9), end delete
begin insert (10), end insert 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), begin delete and (9) end delete begin insert (9), and (10) end insert 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 begin delete any end delete begin insert a end insert 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.

SEC. 4.  

Article 1.5 (commencing with Section 245) is added
to Chapter 1 of Part 1 of Division 2 of the Labor Code, to read:

 

Article 1.5.  Paid Sick Days

 

245.  

This article shall be known and may be cited as the
Healthy Workplaces, Healthy Families Act of 2014.

245.5.  

For the purposes of this article the following terms have
the following meanings:

(a) “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 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.

(b) “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.

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

(d) “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.

(e) “Small business” means an employer who employs 10 or
fewer employees during 20 or more calendar workweeks in the
current or preceding calendar year.

246.  

(a) An employee who works in California for seven or
more days in a calendar year is entitled to paid sick days as
specified in this section.

(b) (1) An employee shall accrue paid sick days at the rate of
not less than one hour per every 30 hours worked, beginning at
the commencement of employment or the operative date of this
article, whichever is first.

(2) An employee who is exempt from overtime requirements
as an administrative, executive, or professional employee under a
wage order of the Industrial Welfare Commission is deemed to
work 40 hours per workweek for the purposes of this section,
unless the employee’s normal workweek is less than 40 hours, in
which case the employee will accrue paid sick days based upon
that normal workweek.

(c) An employee shall be entitled to use accrued paid sick days
beginning on the 90th calendar day of employment, after which
day the employee may use paid sick days as they are accrued.

(d) Accrued paid sick days shall carry over to the following
calendar year. However, an employer may limit an employee’s
use of paid sick days to 24 hours or three days in each calendar
year.

(e) An employer is not required to provide additional paid sick
days pursuant to this section if the employer has a paid leave policy
or paid time off policy and the employer makes available an
amount of leave that satisfies the accrual requirements of this
section and that may be used for the same purposes and under the
same conditions as specified in this section.

(f) (1) Except as specified in paragraph (2), an employer is not
required to provide compensation to an employee for accrued,
unused paid sick days upon termination, resignation, retirement,
or other separation from employment.

(2) If an employee separates from an employer and is rehired
by the employer within one year, previously accrued and unused
paid sick days shall be reinstated. The employee shall be entitled
to use those previously accrued and unused paid sick days and to
accrue additional paid sick days upon rehiring.

(g) An employer may lend paid sick days to an employee in
advance of accrual, at the employer’s discretion and with proper
documentation.

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) For an employee who is a victim of domestic violence or
sexual assault, 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 sick days, discharge, threaten to discharge, demote, suspend,
or in any manner discriminate against an employee for using sick
days, attempting to exercise the right to use sick days, filing a
complaint with the department or in a court 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 sick
days, discharges, threatens to discharge, demotes, suspends, or in
any manner discriminates against an employee within 90 days of
any of the following:

(A) The filing of a complaint by the employee with the Labor
Commissioner or in a court 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.

247.  

(a) An employer shall give each employee written notice
of the requirements of this article in English, Spanish, Chinese,
and any other language spoken by at least 5 percent of the
employees. The written notice shall state the following:

(1) That an employee is entitled to accrue, request, and use paid
sick days.

(2) The amount of paid sick days provided for by this article.

(3) The terms of use of paid sick days.

(4) That retaliation or discrimination against an employee who
requests paid sick days or uses paid sick days, or both, is prohibited
and that an employee has the right under this article to file a
complaint or bring a civil action against an employer who retaliates
or discriminates against the employee.

(b) In each workplace of the employer, the employer shall
display a poster in a conspicuous place containing all the
information specified in subdivision (a). The Labor Commissioner
shall create a poster containing this information and make it
available to employers.

(c) An employer who willfully violates the notice and posting
requirements of this section is subject to a civil penalty of not more
than one hundred dollars ($100) per each offense.

247.5.  

An employer shall keep for at least five years records
documenting the hours worked and paid sick days accrued and
used by an employee. An employer shall allow the Labor
Commissioner access to these records with appropriate notice and
at a mutually agreeable time to monitor compliance with this
article. An employer shall make these records available to an
employee pursuant to Section 226. If an employer does not
maintain adequate records pursuant to this section, it shall be
presumed that the employee is entitled to the maximum number
of hours accruable under this article, unless the employer can show
otherwise by clear and convincing evidence.

248.  

The Labor Commissioner is authorized and directed to
coordinate implementation and enforcement of this article and to
promulgate guidelines and regulations for those purposes.

248.5.  

(a) The Labor Commissioner is authorized and directed
to enforce this article, including investigating an alleged violation,
and ordering appropriate temporary relief to mitigate the violation
or to maintain the status quo pending the completion of a full
investigation or hearing.

(b) If the Labor Commissioner, after a hearing that contains
adequate safeguards to ensure that the parties are afforded due
process, determines that a violation of this article has occurred, he
or she may order any appropriate relief, including reinstatement,
backpay, the payment of sick days unlawfully withheld, and the
payment of an additional sum in the form of an administrative
penalty to an employee or other person whose rights under this
article were violated. If paid sick days were unlawfully withheld,
the dollar amount of paid sick days withheld from the employee
multiplied by three, or two hundred fifty dollars ($250), whichever
amount is greater, shall be included in the administrative penalty.
In addition, if a violation of this article results in other harm to the
employee or person, such as discharge from employment, or
otherwise results in a violation of the rights of the employee or
person, the administrative penalty shall include a sum of fifty
dollars ($50) for each day or portion thereof that the violation
occurred or continued.

(c) Where prompt compliance by an employer is not
forthcoming, the Labor Commissioner may take any appropriate
enforcement action to secure compliance, including the filing of
a civil action. In compensation to the state for the costs of
investigating and remedying the violation, the commissioner may
order the violating employer to pay to the state a sum of not more
than fifty dollars ($50) for each day or portion of a day a violation
occurs or continues for each employee or other person whose rights
under this article were violated. These funds shall be allocated to
the Labor Commissioner to offset the costs of implementing and
enforcing this article.

(d) An employee or other person may report to the Labor
Commissioner a suspected violation of this article. The
commissioner shall encourage reporting pursuant to this
subdivision by keeping confidential, to the maximum extent
permitted by applicable law, the name and other identifying
information of the employee or person reporting the violation.
However, the commissioner may disclose that person’s name and
identifying information as necessary to enforce this article or for
other appropriate purposes, upon the authorization of that person.

(e) The Labor Commissioner, the Attorney General, a person
aggrieved by a violation of this article, or an entity a member of
which is aggrieved by a violation of this article may bring a civil
action in a court of competent jurisdiction against the employer
or other person violating this article and, upon prevailing, shall be
entitled to such legal or equitable relief as may be appropriate to
remedy the violation, including reinstatement, backpay, the
payment of sick days unlawfully withheld, the payment of an
additional sum as liquidated damages in the amount of fifty dollars
($50) to each employee or person whose rights under this article
were violated for each day or portion thereof that the violation
occurred or continued, plus, if the employer has unlawfully
withheld paid sick days to an employee, the dollar amount of paid
sick days withheld from the employee multiplied by three; or two
hundred fifty dollars ($250), whichever amount is greater; and
reinstatement in employment or injunctive relief; and further shall
be awarded reasonable attorney’s fees and costs, provided,
however, that any person or entity enforcing this article on behalf
of the public as provided for under applicable state law shall, upon
prevailing, be entitled only to equitable, injunctive, or restitutionary
relief, and reasonable attorney’s fees and costs.

(f) In an administrative or civil action brought under this article,
the Labor Commissioner or court, as the case may be, shall award
interest on all amounts due and unpaid at the rate of interest
specified in subdivision (b) of Section 3289 of the Civil Code.

(g) The remedies, penalties, and procedures provided under this
article are cumulative.

249.  

(a) This article does not limit or affect any laws
guaranteeing the privacy of health information, or information
related to domestic violence or sexual assault, regarding an
employee or employee’s family member. That information shall
be treated as confidential and shall not be disclosed to any person
except to the affected employee, or as required by law.

(b) This article shall not be construed to discourage or prohibit
an employer from the adoption or retention of a paid sick days
policy more generous than the one required herein.

(c) This article does not lessen the obligation of an employer to
comply with a contract, collective bargaining agreement,
employment benefit plan, or other agreement providing more
generous sick days to an employee than required herein.

(d) This article establishes minimum requirements pertaining
to paid sick days and does not preempt, limit, or otherwise affect
the applicability of any other law, regulation, requirement, policy,
or standard that provides for greater accrual or use by employees
of sick days, whether paid or unpaid, or that extends other
protections to an employee.

249.5.  

(a) A public authority established under Section 12301.6
of the Welfare and Institutions Code shall be required to meet the
requirements of this article for individuals who perform domestic
services comprising in-home supportive services under Article 7
(commencing with Section 12300) of Chapter 3 of Part 3 of
Division 9 of the Welfare and Institutions Code.

(b) A public authority may satisfy the requirements of this article
by entering into a collective bargaining agreement that provides
an incremental hourly wage adjustment in an amount sufficient to
satisfy the accrual requirements of Section 246.