As employers know all too well, it is no small task keeping up with California’s State and Local Sick Leave laws. Just as frustrating are California’s many paystub requirements under Labor Code section 226. One paystub requirement that often gets forgotten is the need to include employees’ accrued sick time on paystubs.
Inclusion of sick time on paystubs is not governed by Labor Code section 226. Instead, it is Labor Code section 246(i) which requires employers to list an employee’s accrued sick time on their wage statements or in a separate writing. Luckily for employers, violations of this particular subdivision also do not trigger Labor Code section 226’s dreaded penalties.
The enforcement of the provisions from the Healthy Workplaces, Healthy Families Act of 2014 is governed by Labor Code section 248.5. Section 248.5 makes clear that there is no private right of action to enforce the Act’s provisions. Only the Labor Commissioner or Attorney General may bring a civil action against the employer for alleged violations. While employers might be concerned that employees could bring a dread PAGA claim to seek penalties, numerous courts have held that Labor Code section 246(i) is a notice requirement within the meaning of Labor Code section 2699(g)(2) which governs PAGA and states that “[n]o action shall be brought under this part for any violation of a posting, notice, agency reporting, or filing requirement of this code, except where the filing or reporting requirement involves mandatory payroll or workplace injury reporting”. See, e.g. Titus v. McLane Foodservice, Inc. (E.D. Cal. Sept. 14, 2016) 2016 WL4797497 at *5.
Since employees cannot sue to collect individual penalties and cannot sue to collect PAGA penalties, is there any risk to employers who do not include accrued sick time on paystubs? The answer is yes. Even though an individual cannot seek penalties, the California Labor Commissioner can take action to recover penalties in the amount of $50 for “each employee or person whose rights under this article were violated for each day or portion thereof that the violation occurred” with a cap of $4,000. Further, a claim for injunctive action still allows for recovery of reasonable attorney’s fees and costs.
So California employers, check those paystubs. In addition to ensuring that they include all of the information required under Labor Code 226, add accrued sick time to the list of necessary information provided to your California employees.