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.

Regular readers of this blog may be asking: “Wait. Didn’t she just do an update in June?” Yes, she did! But there have been changes since then in the rules for Santa Monica, San Francisco, and pesky little Emeryville. Keeping this chart current requires constant vigilance, but Tyreen is up to the task.

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!

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!

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.

While people have many questions and concerns arising from last week’s presidential election, one thing is for sure:  California remains entrenched in a very deep blue bubble.

Blue bubble
Copyright: alphaspirit / 123RF Stock Photo

To say that California leans democratic is an understatement, and the votes on progressive issues showed it.  Californians voted to extend progressive tax rates, restrict ammunition sales, legalize recreational marijuana (although you can’t buy it until the state licenses distributors, so no lighting up yet!), increase the cigarette tax, repeal English-Only education, and ban plastic bags.

Here in Los Angeles, voters approved a ½ cent sales tax for improvements to public transportation (Measure M).  Voters also approved a $1.2 billion dollar bond measure to facilitate the construction of up to 10,000 units of affordable housing for the city’s estimated 28,000 homeless people (Measure HHH).  More money went to improve schools, community colleges, and parks.

Moreover not only do we have a Democratic Governor, but according to the Los Angeles Times, voters elected a two-thirds super-majority of Democrats to the state Assembly, and pending one more district’s vote count, the state’s Senate as well.

What does this mean for employers in the Golden State?  Well, it almost assuredly means progressive employment laws on both the state and local levels will not only remain, but may even increase to keep California in its trend-setting position.  At last count, seven cities have enacted their own paid sick leave ordinances to supplement the three day minimum provided under state law.  State and local organized labor activity remains strong, as shown by its influence on the state’s minimum wage increase and local ordinances like the LA Hotel Minimum Wage Ordinance.  While rumor has it that the NLRB will ultimately turn more pro-business in a Republican administration, and perhaps even put the break on some key pro-labor initiatives (such as micro-units, the Persuader Rule, and maybe even its assault on class action waivers in arbitration agreements as a violation of Section 7 rights), changes on the state and local level are unlikely (at least in the short term).

So while the national post-election map looks very red, California remains very blue — as do its employment policies — and as are the majority of its voters.

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

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!

Los Angeles
Copyright: tonobalaguer / 123RF Stock Photo

In an Alert published on Thursday, we examine the new Los Angeles paid sick leave ordinance:

Employers in the City of Los Angeles have one week to implement policies that comply with the new paid sick leave ordinance, which goes into effect on July 1, 2016 and doubles the current state law requirements.  The ordinance (No. 184320) applies to all businesses, regardless of size, that operate in the City of Los Angeles.  Approved by Mayor Eric Garcetti on June 1 with an urgency clause for quick implementation, here is what you need to know (and do) right now:

  • Employees who work in the city of Los Angeles, 30 days or more per calendar year, are entitled to 48 hours of paid sick leave benefits per year.
  • Employers may front-load the 48 hours of paid sick leave beginning July 1, 2016 and every calendar year or employment anniversary year thereafter. Alternatively, employers can use an accrual method of no less than one hour of paid sick leave for every 30 hours worked, including overtime hours.
  • Under the accrual method, employers may cap usage at 48 hours per year.
  • Under the accrual method, employers must allow a minimum of 72 hours of accrued but unused time to carry over to the following year.

To read our full discussion of the new ordinance and steps LA employers should consider taking, please visit the Fox Rothschild website.

Football and employment law
Copyright: tiero / 123RF Stock Photo

An estimated 16.5 million employees may miss work the day after the Super Bowl, with another 7.5 million workers reporting late to work, according to a new study. In fact, 10.5 million people have already requested Monday off of work. And California employers can’t do much about it.

With California’s Paid Sick Leave law in full effect, workers who call in sick must be permitted to use their paid time off. Though we are only a month into the year, remember the law allows employees to carry over up to 48 hours (or 6 days) so that employees are entitled to paid sick leave even at the beginning of the calendar year. Oh, and if you are thinking about asking for a doctor’s note, proceed with caution, as it can be viewed as retaliatory. Perhaps the best bet is providing free bagels and a special office hangover “cocktail” to ensure all productivity is not lost.