Written by Galen T. Shimoda, Justin P. Rodriguez, and Erika R. C. Sembrano
The Healthy Workplace Healthy Family Act of 2014 ("HWHF") provides all California employees a guaranteed minimum amount of sick leave to attend to the care of themselves and/or their families after approximately ninety (90) days of the start of employment. This new paid sick leave law is the minimum requirement that employers must satisfy. Thus, employers who wish to provide more paid sick leave than the law mandates are certainly permitted to do so.
As with many other laws, many employees may just not know about these requirements as they are busy working hard to support their families. An employer is required to account for this fact by giving employees notice of their rights. This is similar to an employer's obligation to post information regarding state and federal wage laws. For example, an employer must post a poster with information about the HWHF in a conspicuous place where employees can read it easily. The poster should inform employees that they are entitled to the leave, may request leave, and must accrue leave. The poster should also state the amount of leave provided for by HWHF. An employer who willfully violates this posting requirement may be subject to a civil penalty of approximately $100.00 for each offense.
If an employer has refused to provide leave as required in the HWHF, an employee has a panoply of remedies available that they can either seek through the Labor Commissioner or, where it is widespread, through a civil lawsuit under the Private Attorney General Act. For example, an employee may obtain reinstatement, backpay, pay of the sick leave withheld, and an additional sum as an administrative penalty for their rights being violated. The administrative penalty is $50.00 for each day the leave is withheld and not to exceed $4,000.00. Additionally, if the sick leave was intentionally withheld, the amount of sick leave wages paid shall be multiplied either by three (3) or $250.00, whichever is greater, provided the total amount does not exceed $4,000.00.
Also, employers must be careful to ensure that they do not retaliate or discriminate against an employee who requests paid sick days or uses paid sick days. An employer cannot deny an employee the right to use accrued sick days, including terminating the employee for using or attempting to use sick leave. This provision conveys California's public policy of ensuring that employees are afforded necessary sick days without fear of retaliation for using said sick days. If an employer fails to honor this law by 1) discriminating or retaliating against an employee for using sick leave, or 2) even simply preventing an employee from trying to use paid sick leave, it will be subject to civil liability. Either the Labor Commissioner or the Attorney General may enforce this law against employers and can request reinstatement, backpay, and additional sick payments to the employee. A court may also order additional penalties.
Interestingly, another law, known as the "Kin Care" law (which generally allowed employees to use sick leave for the purposes of tending to "kin" or family) restricts an employer from denying an employee the right to use sick leave. However, this law was recently amended to incorporate the HWHF. Specifically, an employer may not discriminate against an employee for using or attempting to use sick leave either for themselves or for their kin. If a violation is found, the employee will be entitled to reinstatement in his/her position and damages. Employees may utilize the Labor Commissioner but can instead choose to bring a civil action in court without going through the Labor Commissioner. In this scenario, the employee would be bringing a claim for discrimination and/or retaliation by the employer for using (or attempting to try to use) paid sick leave.
The Kin Care law also states that if an employer has a policy that counts sick leave as an absence from work that could lead to discipline, discharge, demotion, or suspension, it will be considered a direct violation of the law. The employee would be entitled to seek relief as stated above.
HWHF and related amendments are provisions that exemplify the public policy surrounding the paid sick leave act that has recently been enacted. It is important that employers not only provide the mandated paid sick leave but also refrain from preventing employees from taking paid sick leave. Now that employees are entitled to have this time as paid time off according to the law, employees can also seek the various remedies outlined above in the event that employers fail to honor this important public policy. While the remedies may not seem substantial compared to the remedies provided in other statutes, the remedies to be recovered can, and do, mean a great deal to workers who have be unlawfully discriminated against and deprived the sick leave simply for taking care of their family.
If you believe your employer has not provided you with the required leave under the newly enacted HWHF or has discriminated against you for trying to use this sick leave, please contact our office to have your claims evaluated.