During the May Webinar, Sutton Hague Law Corporation addressed the new California mandatory Paid Sick Leave law, Labor Code section 245 et seq., and issues related to its enactment. California Deputy Labor Commissioner Steve Jones was present as a special guest lending his expertise on the subject and providing insights into understanding the new law. Participants asked questions via live operator for approximately one hour. All net proceeds were donated to Court Appointed Special Advocates (CASA) which advocates for protection and rights of children in foster care.
The Basics of Labor Code section 245, et seq.
Employers must begin providing leave rights pursuant to the new mandatory paid sick leave law (PSL) July 1, 2015. Here is a summary of some of the requirements.
Basic Rule: Any employee who works in California for 30 or more days within a year from the commencement of employment must be allowed to use this sick leave no later than the 90th day of employment.
– The term “employee who works in California” has been further defined as the calendar days of those employees on the payroll working in California. According to the Labor Commissioner, the employee need not actually work on the day, he/she only needs to be on the payroll for the day to count.
– “Commencement of employment” is still an uncertain term but a commonsense interpretation would be that the 30 days or more from the “commencement of employment” would likely be with the same employer.
– “90th day of employment” is equally uncertain and ambiguous but a commonsense interpretation is that this time period is with the same employer. This is a discretionary period which the employer must choose to put into the PSL policy. If the 90 days is not placed in the PSL policy, it cannot be implemented by the employer.
Accrual Rate: PSL must accrue at a rate of 1 hour for every 30 hours worked, or a lump sum payment of at least 3 days (24 hours) of PSL.
– Any unused PSL from the previous year must carry over to the next year.
– An employer may cap the accrual amount at 6 days or 48 hours. Similar to the 90 day period, the accrual cap is up to the discretion of the employer and the employer must affirmatively place the cap in the PSL policy.
– Exempt employees are presumed to work 40 hour weeks unless their normal workweek is shorter. Those categories of workers deemed exempt under this code section are administrative, executive, and professional workers.
Limit on usage: Employers may limit sick leave use to 24 hours or 3 days in each year of employment. Employers must affirmatively place this cap in the PSL policy.
Pay Out: Employers are not required to pay out sick leave upon separation from employment, but if an employee is rehired within one year, the employee’s prior accrued unused sick leave must be reinstated.
Increments: Employers may not require employees to use mandatory sick leave in minimum increments greater than two hours.
The new PSL law has limited exemptions, including:
– Collective Bargaining Agreements that meet specific requirements
– Certain providers of in-home supportive services under enumerated sections of the Welfare and Institutions Code.
– Employees employed by an air carrier as flight deck or cabin crew members, subject to Title II of the federal Railway Labor Act.
When May Employees Use Mandatory Paid Sick Leave?
The law states that “upon the oral or written request of an employee…” an employer shall provide PSL. The purpose for PSL can be any of the following:
– Diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member.
– For an employee who is a victim of domestic violence, sexual assault, or stalking.
Additionally, under the new law an employer may not require that the employee search for or find a replacement worker as a condition of sick leave. The new law does not address whether an Employer may request a doctor’s note from the employee as proof of the reason for taking leave. Therefore, such a practice is not recommended at this time.
Rate of Pay
Under Labor Code section 246 the rate of pay for PSL “shall be the employee’s hourly wage. If the employee in the 90 days of employment before taking accrued sick leave had different hourly pay rates, was paid by commission or piece rate, or was a nonexempt salaried employee, then the rate of pay shall be 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.”
– This 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.
– Issue “Notice to Employee” forms to employees pursuant to Labor Code section 2810.5.
– Display a poster describing requirements with new PSL law in a conspicuous area.
– Starting July 1, 2015, employers must give notice of accrued paid sick leave on paystubs or on separate writing on payday.
– Keep records of PSL for each employee for at least 3 years (4 would be better) making it available to the Labor Commissioner upon request.
– Make records available to an employee within 21 days upon request.
– Reinstatement: If an employee returns to work within one year, his or her paid sick leave must be reinstated. 90 day waiting period may be continued but not restarted after employee’s return.
Penalties for Non-Compliance
– Labor Commissioner may seek reinstatement, backpay, and payment for past Paid Sick Days wrongfully withheld plus interest.
– Private attorneys can sue for various relief as well.
– Retaliation against an employee for protected conduct, including requesting PSL, is prohibited. A presumption of retaliation arises if an employee suffers an adverse employment action within 30 days of opposition by the employee to a policy, practice, or act that is prohibited by this article.
Other Topics Covered
– Distinctions between Mandatory Paid Sick Leave and Discretionary Paid Sick Leave
– Distinctions between PSL and Paid Time Off
– Pros and cons of accrual rate vs lump sum payment of PSL
– Collective bargaining agreement exemption
– Perfect attendance incentive programs involving PSL as a form of retaliation
– Issues of employees who are based outside of California, but work in California for more than 30 days within one year
CD’s and MP3 recordings of the webinars are available for purchase for $30! For more information you can email Yvette@suttonhague.com.