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By Jackson Lewis

Controversial proposed legislation that would have required all California employers to provide paid sick days to all employees will not be adopted this legislative session. Citing the cost of implementing and maintaining the program, the California Senate Appropriations Committee decided to hold up consideration of Assembly Bill 2716. The California Labor Federation AFL-CIO has promised to work to reintroduce the bill in the 2009 legislative session.

Under the bill, modeled after San Francisco’s sick leave ordinance, paid sick days would have to be provided, upon oral or written request, to employees for the employee’s personal illness, to care for a sick family member, or to recover from domestic violence or sexual assault. Assembly Bill 2716 does not require employees to provide documentation supporting the need for leave.

Coverage

The bill covers all employers, including the state, political subdivisions of the state, and municipalities. The bill covers employees and “family members,” which are defined as:

• A biological, adopted, or foster child, stepchild, legal ward or a 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 spouse.

• A registered domestic partner.

• A grandparent.

• A grandchild.

• A sibling.

The bill does not apply to employees covered by a collective bargaining agreement that provides for paid sick days. This bill also 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.

Paid Leave Requirement

After working for seven calendar days, full-time and part-time employees accrue paid sick days at a rate of one hour per 30 hours worked. Employees can use accrued paid sick days beginning on the 90th calendar day of employment, after which the paid sick days may be used as they accrue. Employees may carry over unused paid sick days from year to year. However, employers may limit the number of paid sick days per year. A “small business employer” (a business that employs 10 or fewer employees) may limit employees to 40 hours or five paid sick days per year. All other employers may limit employees to 72 hours or nine paid sick days per year.

Employers are not required to pay employees accrued, unused paid sick days at the end of an employment relationship. However, if an employee separates from and is rehired by the same employer within one year, the employer must reinstate any previously accrued, unused paid sick days.

If an employer has a paid-time-off policy that provides at least the same amount of paid leave and permits leave to be taken under the same conditions set forth in the bill, the employer need not provide additional leave.

Other Requirements

Employers cannot require, as a condition of taking paid sick days, that the employee taking leave search for or find a replacement worker. Employers are prohibited from denying employees the right to use sick days, discharging, threatening to discharge, demoting, suspending or discriminating or retaliating against an employee for using sick days.

The bill includes 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:

• An employee’s filing a complaint with the state labor commissioner or in a court alleging a violation of the law.

• An employee’s cooperating with an investigation or prosecution of any alleged violation of the law.

• An employee’s opposing any policy, practice or act that is prohibited by the law.

Posting and Record-Keeping

Under the bill, employers must give written notice of the law’s requirements in English, Spanish, Chinese and any other language spoken by at least five percent of their employees. Employers also must display a poster in the workplace containing the same information. Employers who willfully violate the notice and posting requirements shall be subject to a civil fine of not more than $100 for each offense. In addition, for a period of five years, employers must keep records documenting hours worked and the number of paid sick days used and accrued. These records must be available for inspection by employees and the labor commissioner. The bill also would amend the labor code to include accrued and used sick days to the information that must be provided on employees’ wage statements.

Enforcement and Liability for Violations

The bill authorizes the labor commissioner to investigate and prosecute violations of the law and, after a hearing, to order any appropriate relief, including reinstatement, back pay, payment for sick days unlawfully withheld, and an administrative penalty. The labor commissioner, attorney general, or a “person aggrieved” also may bring a civil action against the employer for violations and may recover any legal or equitable relief appropriate to remedy the violation, including reinstatement, back pay, payment for sick days unlawfully withheld, liquidated damages, penalties, injunctive relief, attorneys’ fees and costs.

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