On September 10, 2014, Governor Brown signed the Healthy Workplaces, Healthy Families of Act of 2014 (the “Act”) requiring all employers, regardless of size, to allow covered employees to accrue paid sick days beginning July 1, 2015 at the rate of 1 hour for every 30 hours worked.
All employees who, on or after July 1, 2015, work in California for 30 or more days within a year from the commencement of employment are entitled to accrue paid sick days.
The following employees are not covered by the Act: (i) employees covered by a collective bargaining agreement that provides employees with paid sick days, paid leave or paid time off among other specific provisions; (ii) employees in the construction industry covered by a collective bargaining agreement that includes certain provisions and was either (a) entered into before January 1, 2015 or (b) expressly waives the terms of the Act; (iii) providers of in-home supportive services; and (iv) flight deck or cabin crew members employed by an air carrier under the Railway Labor Act, provided they receive at least 1 hour of compensated time off for every 30 hours worked.
Paid sick days may be used:
for diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member; or
for certain purposes by an employee who is a victim of domestic violence, sexual assault, or stalking.
A “family member” for purposes of the Act is any of the following:
a biological, adopted, or foster child, stepchild, legal ward, or child to whom the employee stands in loco parentis;
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;
a registered domestic partner;
a grandchild; or
Employees accrue paid sick leave at a rate of 1 hour for every 30 hours worked. Accrual begins at commencement of employment or July 1, 2015, whichever is later.
Employers may cap accrual at 48 hours or 6 days.
Employees may use accrued paid sick days beginning on the 90th day of employment. Employers can limit annual paid sick day usage to 24 hours or 3 days. Employers may set a “reasonable minimum” increment, not to exceed to 2 hours, for use of paid sick leave.
Notice to Employer
Reasonable advance notice is required for foreseeable leave. For unforeseeable leave, notice must be provided as soon as practicable. Notice may be oral or written.
Carry Over Required
Employers must permit the carryover of accrued, unused paid sick leave from year to year.
No accrual or carryover is required if the full amount of leave (24 hours or 3 days) is provided at the beginning of each year.
Existing PTO or Paid Leave Policies
Employers are not required to provide additional paid sick days if the existing paid leave policy or paid time off policy provides paid leave for the same purposes and under the same conditions as specified in the Act and the policy either:
satisfies the Act’s accrual, carry over, and use requirements; or
provides no less than 24 hours or 3 days of paid sick leave, or equivalent paid leave or paid time off, for employee use for each year of employment or calendar year or 12-month basis.
Payout Is Not Required Upon Separation
Employers are not required to provide compensation for accrued, unused paid sick days upon separation from employment.
Reinstatement Required Within One Year
If an employee is rehired by an employer within one year from the date of separation, all previously accrued and unused paid sick days must be reinstated. The employee is entitled to use the reinstated paid sick days and to accrue additional paid sick days upon rehire.
Rate of Pay
The rate of pay is the employee’s hourly wage. If the employee in the 90 days of employment before taking accrued sick leave had different hourly rates, was paid by commission or piece rate, or was a nonexempt salaried employee, then the rate of pay is calculated by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.
Timing of Payment
Employers must provide payment for sick leave taken no later than the payday for the next regular payroll period after the sick leave was taken.
Notice and Posting Requirements
Pay Date Notice. Employers must provide employees with a written notice of the amount of available paid sick leave or paid time off. The notice may be included on the employee’s itemized wage statement or in a separate writing provided on the designated pay date with the employee’s payment of wages.
Poster. The California Labor Commissioner’s Division of Labor Standards Enforcement (DLSE) has issued a poster that must be displayed in a conspicuous place in each workplace of the employer by January 1, 2015. The poster may be found here: Paid Sick Leave Poster
Wage Theft Prevention Act Notice. As of January 1, 2015, the notice required under the Wage Theft Prevention Act (Labor Code Section 2810.5) must include a statement that an employee: (i) may accrue and use sick leave; (ii) has a right to request and use accrued paid sick leave; (iii) may not be terminated or retaliated against for using or requesting the use of accrued paid sick leave; and (iv) has the right to file a complaint against an employer who retaliates. The revised Wage Theft Prevention Act Notice can be found here: Revised Wage Theft Prevention Act Notice
In addition to providing the revised Wage Theft Prevention Act Notice at the time of hiring, employers must also notify existing employees in writing of any changes to the notice within 7 calendar days after the time of the change, unless:
All changes are reflected on a timely wage statement furnished in accordance with Labor Code 226; or
Notice of all changes is provided in another writing required by law within 7 days of the changes.
Employers cannot retaliate against (i.e., discharge, threaten to discharge, demote, suspend, or otherwise discriminate) an employee for:
using accrued sick days
attempting to exercise the right to use sick days
filing a complaint or alleging a violation of the Act
cooperating in an investigation or prosecution of an alleged violation of the Act, or
opposing any policy or practice prohibited by the Act
There will be a rebuttable presumption of unlawful retaliation if an employer retaliates against an employee within 30 days of any of the following:
An employee’s filing a complaint with the Labor Commissioner or alleging a violation of the Act.
Cooperation of an employee with an investigation or prosecution of an alleged violation.
Opposition by the employee to a policy, practice or act that is prohibited by the Act.
Employers must keep for at least 3 years records documenting the hours worked and paid sick days accrued and used by the employee. If an employer does not maintain adequate records, it will be presumed that the employee is entitled to the maximum number of hours accruable under the Act, unless the employer can show otherwise by clear and convincing evidence.
Enforcement and Penalties
The Labor Commissioner will conduct hearings to determine whether a violation occurred and may order relief, including: reinstatement, backpay, payment of sick days unlawfully withheld, and an administrative penalty to an employee whose rights were violated. In addition, the Labor Commissioner or Attorney General may bring a civil action and upon prevailing may collect relief, including: reinstatement, injunctive relief, backpay, payment of sick days unlawfully withheld, liquidated damages, and reasonable attorney’s fees and costs.
Specific Monetary Penalties:
For paid sick days unlawfully withheld = dollar amount of paid sick days withheld x 3, or $250, whichever is greater, but not to exceed an aggregate penalty of $4,000
For other harm to the employee = $50 for each day or portion thereof that the violation occurred or continued, not to exceed an aggregate penalty of $4,000
Liquidated Damages (not to exceed an aggregate penalty of $4,000):
$50 to each employee whose rights were violated for each day or portion thereof that the violation occurred or continued
The dollar amount of any unlawfully withheld paid sick days to an employee x 3, or $250, whichever amount is greater
Willful Posting Violation: up to $100 per offense.
Penalty to State: The Labor Commissioner may order the employer to pay the state in compensation for investigating and remedying a violation up to $50 for each day or portion of a day a violation occurs or continues for each employee whose rights were violated.
No penalties or liquidated damages will be assessed for isolated and unintentional payroll errors or written notice clerical errors or inadvertent mistakes regarding the accrual or available use of paid sick leave.
The Act establishes minimum requirements for 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, or that extends other protections to an employee.
Please note that this summary is not intended to constitute legal advice.
If you have questions regarding compliance with the California Healthy Workplaces, Healthy Families Act or other employment laws, please feel free to contact either Kristin Pedersen or Maki Daijogo at Daijogo & Pedersen, LLP through our website, www.dpemploymentlaw.com, or by calling us at 415.924.9400.