San Diego SHRM Law Day 2015 Presented by Jennifer Sarkozy Branch

More cities and states are requiring employers to give workers paid sick days.

The Healthy Workplaces, Healthy Families Act of 2014 (AB 1522) Signed into law on September 10, Will provide at least 3 paid sick days to approximately 40% of the state’s workforce that did not previously receive paid sick days.

When Does AB 1522 Take Effect? January 1, 2015 for notice and posting requirements. But … the right to accrue and take sick leave does not take effect until July 1, 2015.

What Are Employees Entitled to Under the Act? At least 24 hours (3 days) of paid sick leave in a 12-month period. Employees will be paid at their regular hourly rate when they take paid sick leave.

What Can Employees Use Paid Sick Leave For? For themselves or a family member for: Preventive care (including annual physicals and flu shots); Care of an existing health condition; or If the employee is a victim of domestic violence, sexual assault, or stalking.

Who Qualifies for Paid Sick Leave? Employees who work at least 30 days in California within a year, including: Part-time employees Per diem employees Temporary employees (including those employed by a staffing agency)

Who Does NOT Qualify? Some employees are exempt : Providers of publicly-funded In-Home Support Services Employees covered by collective bargaining agreements with specified exemptions Individuals employed by an air carrier as a flight deck or cabin crew member (if they receive compensated time off at least equivalent to the requirements of the new law)

When Can a Qualifying Employee Begin Accruing and Taking Paid Sick Leave? July 1, 2015, or on the first day of employment if they are hired after July 1, Employees must work for 90 days before they can actually take sick leave.

How Does a Qualifying Employee Accrue Paid Sick Leave? Two Methods: 1) Accrual Method OR 2) Lump-Sum Method

The Accrual Method Employees earn at least 1 hour of paid leave for every 30 hours worked.

Use and Accrual Caps Under the Accrual Method It’s possible to accrue over 24 hours (3 days) of paid sick leave in a year. (Employees working 40 hours a week would accrue 8.5 days.) Employers may cap accrual of paid sick leave at 48 hours (6 days). Employers may cap use of paid sick leave at 24 hours (3 days).

Why Are Employees Allowed to Accrue More Paid Sick Leave Than They Can Actually Use? So they have sick leave available to use at the beginning of the next year.

Carry Over of Unused Accrued Time Under the Accrual Method Unused, accrued sick leave must carry over from one year to the next. But … employers can implement use and accrual caps.

Example of Carry Over Under the Accrual Method In 2016, Jessica would have accrued 52 hours of paid sick leave. Jessica took 16 hours (2 days) of paid sick leave when she had the flu. Her employer implements the permitted 24-hour use cap and 48-hour accrual cap. 1) Can Jessica take any more paid sick leave in 2016? 2) How many of Jessica’s unused accrued paid sick leave hours will carry over to 2017?

The Lump-Sum Method Employers can give all employees at least 24 hours (3 days) of paid sick leave at the beginning of each year.

Accrual & Carry Over Not Required under the Lump Sum Method Because employees will receive 24 hours (3 days) at the beginning of each year, accrual and carry over are not required.

How is a Year Measured Under the Act? It’s not spelled out. Options  Calendar Year  Anniversary Year (based on date of hire)  Other defined 12-month basis

Must employers Pay Out Unused Sick Days Upon Termination? No, unless the employer’s policy provides for a cash out of unused sick days. If an employee leaves his/her job and gets rehired by the same employer within 12 months, he/she can reclaim the unused accrued sick days.

When Do Employers Need to Pay Employees for Sick Leave? No later than the payday for the next regular payroll period after the sick leave was taken.

How Should An Employee Give Notice that He/She Needs to Take Leave? Employers must permit the employee to use paid sick leave upon oral or written request. If the need is foreseeable, the employee must give reasonable advance notice. If the need is unforeseeable, the employee need only give notice as soon as practicable.

Notice & Posting Requirements January 1, employers must display a poster containing information about the Act in a conspicuous place at the workplace. Available on Labor Commissioner’s website: _Template_(11_2014).pdf January 1,2015, employers are required to provide new employees with an individualized “Notice to Employee” that includes paid sick leave information. Available on Labor Commissioner’s website: Revised-11_2014).pdf Revised-11_2014).pdf

Record Keeping Requirements Employers must show the number of paid sick hours/days an employee has available on an employee’s: 1) Pay stub/wage statement, or 2) Document issued the same day on an employee’s paycheck. Employers must also keep records showing how many paid sick leave hours/days employees earned and used for 3 years.

What if an Employer Has its Own Paid Time Off (PTO) Plan? The Act establishes minimum requirements. Employers may provide sick leave through its own sick leave or PTO plan, and it may establish different plans for different categories of workers.

How Does the New Law Fit in with Local Sick Leave Ordinances? Employers subject to local sick leave ordinances must comply with both local and California laws. Must provide whichever benefit is more generous to the employee.  A San Diego local ordinance proposing to allow employees to use up to 40 hours per year (compared to the 24 hours provided under California law) will be put to popular vote during the next election in June 2016.

What Steps Should Employers Take to Comply with the New Law? 1) Properly document employees’ available sick leave hours/days; 2) Timely pay employees after they take paid sick leave; and 3) Provide employees with information regarding their right to paid sick leave.

Enforcement CA Labor Commissioner Attorney General Civil actions under the California Private Attorney General Act (PAGA).  PAGA actions are permitted, but recovery excludes PAGA penalties and are limited to restitution, equitable or injunctive relief, and reasonable attorney’s fees and costs.

Penalties Posting: $100 penalty per offense. Paid Sick Days Withheld: For every paid sick day unlawfully withheld, employees shall recover the dollar value of the paid sick days withheld multiplied by 3 or $250, whichever is greater, not to exceed an aggregate penalty of $4,000 per employee. Other Violations: If an employer engages in other violations (such as failure to show hours available each time wages are paid), the maximum penalty shall include a sum of $50 a day, not to exceed an aggregate penalty of $4,000 per employee.