California Paid Sick Leave

Thermometer and pills on paper marked with Sick Leave labelAs 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.  Further, the section explicitly makes clear that “any person or entity enforcing this article on behalf of the public as provided for under applicable state law shall, upon prevailing, be entitled only to equitable, injunctive, or restitutionary relief, and reasonable attorney’s fees and costs.”  (Labor Code section 248.5(e))  Thus, individual employees cannot collect penalties for themselves, or for others pursuant to a dreaded PAGA claim.

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.

Businessman handing over paycheck at desk in officeSo 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.

 

Tyreen Torner has again updated this Chart Summarizing CA State and Local Paid Sick Leave Rules. It summarizes the Paid Sick Leave laws for California, San Francisco, Los Angeles, San Diego, Oakland, Berkeley, Santa Monica, and Emeryville.

Man lying with a broken leg in a cast on a sofaAre you curious about how the accrual cap rules in Oakland (where the Golden State Warriors are today celebrating their third NBA title in four years) compare to the accrual cap rules in Los Angeles (where the Lakers weren’t even the champions of LA)? Just look it up. It’s all there. Right at your fingertips. Thank you Tyreen!

I am both proud and excited to be featured in two new training videos for workplace supervisors and human resources representatives handling California-specific and federal wage and hour issues.

Developed and produced by Kantola Productions, “California Wage and Hour Laws: What You Need to Know” is designed to help companies train their supervisors and human resources representatives to become better, more legally compliant managers.  The video consists of modules that break down the complex requirements regarding a variety of wage and hour matters including:

  • Exempt vs. Non-Exempt Employees
  • Employee vs. Independent Contractor
  • Overtime
  • Meal & Rest Breaks
  • Hours Worked

There is also a federal version of the video.

Both videos are available for purchase in several formats:  DVD, online training for up to 25 viewers, or instant streaming for a single user.  To receive a 20% discount, Fox Rothschild clients and their contacts can enter Fox20 in the “catalog code” box when filling out the online purchase form.

Take a look at a clip from the video below.  Enjoy!

Tyreen Torner has just updated this CA State & Local PSL Chart. It summarizes the Paid Sick Leave laws for California and the eight cities that have their own rules (LA, SF, San Diego, Oakland, Berkeley, Santa Monica, and Emeryville).

Have you ever wondered how the accrual cap rules in Santa Monica compare to the accrual cap rules in San Diego? Of course you have! Don’t be embarrassed. Are you curious about how the definition of sibling in San Francisco compares to the definition of sibling in San Diego? Just look it up. It’s all right there at your fingertips. All thanks to Tyreen!

There are few things I love more in life other than dogs and beer. So when I saw this article I was delighted! A beer company, called BrewDog, has decided to pay its employees a week of new puppy leave dubbed “pawternity” or “mutternity” leave when an employee gets a new puppy or adopts a dog.

29893089 – dog drinking beer tosa inu cute puppy lying on the grass and drinking beer

In my adult life I have raised three puppies, and each time I took “puppyernity leave” for the first week the puppy was home. Many clients, colleagues, and even opposing counsel were super supportive (and requested pictures). For those who love pets, especially puppies, they understand how hard that first week can be, and how little sleep you get.  Raising a puppy (or adopting a dog) is a tremendously joyous time, but it is also a big time commitment!

On a related issue, many clients have asked me if the various paid sick leave statutes coming up in cities all over the country allow time off for sick pets. My answer has been “not yet.” Unless, of course, you live in the city of Emeryville, and need sick time to care for a guide dog, signal dog, or service dog.

So let’s give a shout out to San Francisco, the most liberal city in the US. Come on now. Get on the puppy train. Let’s get some puppy leave ordinance drafted and expand sick leave to include pets. Oh, and while you are at it, make it mandatory to allow pets into all work spaces! Ok, maybe that one can wait. But are you really going to let a beer company based in Glasgow do more for employees (and their canine babies) than a business in San Francisco?

Guest blog post by Mikella Wickham:

They say location is everything in business.  How about classification of workers?

In certain industries, workers have a unique combination of specified skills and

Fit people working out
Copyright: wavebreakmediamicro / 123RF Stock Photo.

relative freedom to do their job.  As a result, small businesses are stuck between a rock and a hard place when deciding whether their workers are employees or independent contractors.  Of the many small businesses that want to pay their workers fairly and legally, it is becoming harder to do so without going out of business altogether.

Take fitness companies, for example.

Fitness instructors are not the average employees.  They may have input on their schedules (because they only want to work mornings or weekends).  They may work at several different studios, or work more than one job.  Often they teach in their own style, and even impact how many customers attend the classes.  Very often customers are loyal to a studio based on their rapport with a particular instructor.  Does the fitness company pay that person as an employee or as an independent contractor?

Let’s say the employer pays the instructor as an employee, on an hourly basis.  That worker becomes much more expensive for the business because she is covered by workers’ compensation insurance, gets paid sick leave, is paid at least the minimum wage (which keeps going up), and gets overtime, meal breaks and paid rest breaks.  Given all of that, how does the employer incentivize the instructor to bring more customers in the door to offset the additional costs incurred?

Alternatively, if a company pays a fitness instructor as an independent contractor (as many do), but still controls aspects of what the instructor does (such as what she wears, the music she plays, or the moves she teaches), it risks a misclassification claim.  Defending such lawsuits can mean death to a small business.

With no law designating a “dependent contractor” middle ground category, businesses are left to choose from a pick-your-poison set of options.

Standing next to larger brand name fitness companies, smaller fitness companies who can afford to pay employees well, or eat losses at smaller studios for the larger corporate good, can find themselves disadvantaged in a David and Goliath battle to simply have a place in the market.

As we have suggested, perhaps the law will carve out an exception for businesses in this category.  The future will tell.  In the meantime, small businesses have a tough decision to make: pay up now, or, perhaps, pay more later.


Mikella P. Wickham is a summer associate, based in the firm’s Los Angeles office.

It’s been barely two months since Tyreen Torner compiled a chart summarizing the paid sick leave laws of California and six cities (San Francisco, Oakland, Emeryville, Los Angeles, San Diego, and Santa Monica). Well, she has now updated the chart, which you can download here: CA State and City Paid Sick Leave Laws. Is Tyreen’s work done? Hardly! Berkeley has enacted its own paid sick leave laws that take effect in 2017. Other cities will also be jumping on the bandwagon and it will be time for another update. Sorry Tyreen!

Copyright: olivier26 / 123RF Stock Photo
Copyright: olivier26 / 123RF Stock Photo

The City of Los Angeles is not making it easy for employers operating within city limits.  First, they rushed through an ordinance implementing new paid sick leave requirements on an urgency basis that became effective July 1st.  And now, they have issued rules and regulations explaining the statute that quite frankly, are partially nonsensical, and leave employers in quite a bind to figure out how to comply.

Stomach ache and sick leave
Copyright: chrisfromparis / 123RF Stock Photo

One troubling issue is that although the ordinance allows employers to either accrue sick leave or front load it, the main benefit of the front load method is diminished.  Under current California law, when an employee front loads 24 hours of sick leave, they don’t have to carry over any days from year to year.  That significantly eases the administrative burden.  One would assume the same applied for Los Angeles sick leave, and that 48 hours could simply be front loaded, and not carried over.  In fact, the language of the ordinance only references carry over as to accrued sick leave.  “Accrued unused paid sick leave shall carry over to the following year of employment and may be capped at 72 hours.”  Yet, the regulations contradict that language, and provide that the 72 hour cap applies whether you front load or accrue.  According to the regulations, even if you front load 48 hours, and only allow 48 hours of use per year, there will still be more time on the books that is not available for use (and would need to be reinstated if the employee leaves and comes back within a year).  Plus, good luck trying to explain to an employee why the paystub says 72 hours, but they can only use 48 (even if your policy is clear on that point).

Another problematic issue is the potential for abuse given the inability to discipline for use of 48 hours of sick time.  The Los Angeles regulations state that an employer can’t deny the request to use sick leave if the “Employee communicates the request more than one (1) hour before the beginning of the Employee’s shift in a manner consistent with the Employers’ normal method of communication.”  But what if the Employer’s policy requires a 2-hour call in?  Apparently that can’t be enforced.  And what about the California law requirement that foreseeable needs for sick leave (like a planned medical appointment) need to be communicated ahead of time with “reasonable advance notification”?  Can that still be enforced in Los Angeles?  Maybe not.  And while you can ask for a doctor’s note, you can only do so after three consecutive days of sick leave.  Oh yes, and you can’t ask in a way that “deters” an employee from taking “a legitimate sick day.”

Finally, good luck with figuring out how much sick time accrues if your employees travel in and out of city boundaries.  There are three pages of regulations on that issue alone.  Suffice it to say, you have to have a method to track how much time someone works in the city, even if it is just driving through the city on the freeway!  No joke.  It’s in the regulations.

Pass the antacids.  If you do business in Los Angeles, you are going to need them (and a good lawyer or HR consultant to help you navigate these requirements).

 

Trying to keep track of all of California’s paid sick leave requirements is a daunting task. The state has its own rules and then so do seven municipalities, with Los Angeles joining the list July 1, 2016. Wouldn’t it be great if there was a single chart that contained all the requirements? Well now, thanks to Tyreen Torner, there is. Click on the link to download a PDF of the California Paid Sick Leave Rules Chart.

Copyright: olivier26 / 123RF Stock Photo
Copyright: olivier26 / 123RF Stock Photo

Are you curious about how the accrual cap rules in Oakland compare to the accrual cap rules in Santa Monica? Of course you are! Don’t be afraid to admit it. Are you wondering how the definition of sibling in San Francisco compares to the definition of sibling in San Diego? Just look it up. It’s all there. Right at your fingertips. Thank you Tyreen!