BILL ANALYSIS �
Senate Appropriations Committee Fiscal Summary
Senator Kevin de Le�n, Chair
AB 1522 (Gonzales) - Employment: Paid Sick Leave
Amended: June 15, 2014 Policy Vote: L&IR 3-1 Judiciary
5-2
Urgency: No Mandate: No
Hearing Date: August 4, 2014
Consultant: Robert Ingenito
This bill meets the criteria for referral to the Suspense File.
Bill Summary: AB 1522 would require employers to provide at
least three paid sick days to employees who work 30 or more days
in a calendar year.
Fiscal Impact:
The Department of Industrial Relations (DIR) indicates
that it would incur first-year costs of $1.2 million
(special funds) associated with training, rulemaking,
investigation and enforcement of complaints. Ongoing costs
of would be $1.1 million, related to ongoing investigation
and enforcement of wage and retaliation claims.
The Department of Justice would incur costs of $536,000
in 2014-15 and about $900,000 annually ongoing (General
Fund), for investigation and prosecution of statutory
violations, to the extent the bill leads to increased civil
action.
Increased compensation costs related to the In-Home
Supportive Services (IHSS) Program. Increased IHSS costs
are estimated to be about $14 million annually (General
Fund).
Background: Current law provides employees the opportunity to
take both paid and unpaid leave from work without fear of
discharge or discrimination for a number of specified purposes,
including personal and family sick leave. Current law does not,
however, generally require employers to provide paid sick leave.
At present, only one county (San Francisco) has passed an
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ordinance requiring employers to provide paid sick leave for all
employees, including temporary and part-time employees, who work
within the county. The ordinance became effective on February
5, 2007.
Proposed Law: Specifically, this bill would, among other things,
do the following:
Provide that on or after July 1, 2015, an employee who
works for 30 or more days in a calendar year is entitled to
paid sick days.
Specify that paid sick days accrue at a rate of no less
than one hour for every 30 hours worked, and may be used
beginning on the 90th calendar day of employment.
Provide that paid sick days may accrue and be carried
over to the following year; however, employers may limit
their use to 24 hours or 3 days in each calendar year.
Provide that "employer" includes any person employing
another and includes the state, political subdivisions of
the state, and municipalities.
Provides that an "employee" does not include one who is
(1) covered by a valid collective bargaining agreement that
expressly provides for paid sick days or similar policy, as
specified, or (2) in the construction industry covered by a
valid collective bargaining agreement that was entered into
before January 1, 2015 or waives the requirements of this
bill, as specified.
Provides that a public authority must comply with these
requirements for individuals who perform in-home supportive
services, except that these requirements may be satisfied
by entering into a collective bargaining agreement that
provides an incremental hourly wage adjustment in an amount
sufficient to satisfy the bill's requirements.
Require an employer, upon oral or written request of an
employee, to 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
the employee's family member, or (2) for an employee who is
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a victim of domestic violence, sexual assault, or stalking
as specified.
Define "family member" to include a child (as
specified), a parent (as specified), a spouse, a registered
domestic partner, a grandparent, a grandchild, or a
sibling.
Not require an employer to provide compensation to an
employee for accrued, unused paid sick days upon
termination, resignation, retirement, or other separation
from employment, except if an employee is rehired by the
same employer within one year, any previously accrued,
unused paid sick days shall be reinstated.
Allow an employer to lend paid sick days to an employee
in advance of accrual, at the employer's discretion and
with proper documentation.
Prohibit an employer from requiring employees to find a
replacement worker as a condition of using his/her paid
sick days.
Prohibit an employer from denying an employee the right
to use sick days, discharging, threatening to discharge,
demoting, suspending or in any manner discriminating
against an employee for using sick days, as specified.
Establish a rebuttable presumption of unlawful
retaliation if an employer denies an employee the right to
use sick days or takes other specified adverse action
within 30 days of specified protected activities by the
employee.
Require employers to provide written notice in specified
languages and comply with posting requirements, as
specified, or be subject to a civil fine for not
compliance.
Require employers to retain employee records related to
used and accrued paid sick days for at least five years.
Require employer to include in employee wage statements
any paid sick leave accrued and used pursuant to this Act.
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Direct the Labor Commissioner to (1) coordinate
implementation and enforcement of these requirements and to
promulgate guidelines and regulations, (2) investigate
alleged violations and order appropriate relief, including
reinstatement, back pay, the payment of sick days
unlawfully withheld, and additional administrative
penalties, as specified, and (3) in addition to the
Attorney General, bring a civil action against an employer
in a court of competent jurisdiction to recover relief, as
specified, including back pay, penalties, liquidated
damages and attorney's fees and costs.
Related Legislation: AB 400 (Ma) in 2011 was substantially
similar to this bill except that it limited the use of paid sick
days to 40 hours per year or five days (for small businesses)
and 72 hours per year or nine days for other businesses. The
bill was held in the Assembly Appropriations Committee.
Staff Comments: As noted by the Legislative Analyst, beginning
in the late 1980s, California appellate courts issued a series
of opinions addressing the definition of a state-reimbursable
mandate. The courts found that a mandate is created when the
state requires local governments to provide a new or upgraded
program to the public, or imposes a unique requirement on local
governments that does not apply generally to residents and
entities of the State. In County of Los Angeles v State of
California (1987) and City of Sacramento v State of California
(1990), the California Supreme Court ruled that state laws that
extended worker compensation and unemployment insurance
protections to local employees did not constitute reimbursable
mandates. Specifically, the court found that local government
employer obligations were comparable to other employers, and
were not attributable to providing a new program to the public.
Together, these cases form the basis of what is commonly
referred to as the "law of general applicability." That is, if
a statute imposes similar obligations on the private and public
sector, the public sector's costs to comply with the requirement
do not constitute a state-reimbursable mandate.
In IHSS, the recipient is technically the employer and a
provider can work for more than one recipient. It is unclear if
a provider would get seven days of sick leave per provider and
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who the provider would contact regarding sick leave and how the
county is notified. How this information would be tracked,
records on sick leave balances maintained and compensation
adjusted is also unclear. This bill proposes to address this,
in part, by allowing a public authority to enter into a
collective bargaining agreement that provides an hourly wage
adjustment in an amount sufficient to satisfy the accrual
requirement (paid sick leave at the rate of no less than one
hour for every 30 hours worked), essentially money instead of
sick leave.