Written by Galen T. Shimoda and Erika R. C. Sembrano
Effective July 1, 2015, California's Healthy Workplaces, Healthy Families Act of 2014 (Labor Code §§ 245, et seq.) mandates that California employees earn paid sick leave. Prior to July 2015, employers were not required to provide any paid sick leave to employees. Now, employees accrue paid sick time off, specifically one (1) hour for every thirty (30) hours worked. At a minimum, employers must provide twenty-four (24) hours or three (3) days of paid sick leave, and must ensure that the employee accrues at least twenty-four (24) hours of sick leave or paid time off by the 120th day of employment, each calendar year, or each twelve (12) month period. Employers are also able to limit the total amount of accrued paid sick leave to forty-eight (48) hours or six (6) days. This requirement applies to both non-exempt and exempt employees. Employees are eligible to begin using the accrued paid sick days beginning on the 90th day of employment.
Employers must also carry over unused paid sick time to the following year, but employers can limit the employees' use of accrued paid sick days to twenty-four (24) hours or three (3) days in each year of employment, calendar year, or twelve (12) month period. Additionally, employers are required to abide by certain posting requirements (Labor Code § 247) and documentation requirements (Labor Code § 247.5).
This new paid sick leave law is the minimum requirement that an employer must satisfy. Thus, employers who wish to provide more paid sick leave than the law mandates are certainly permitted to do so.
With the new law in place, employers must be careful to ensure that they in no way 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, discharge, threaten to discharge, demote, suspend, or in any manner discriminate against an employee for using accrued sick days [and] attempting to exercise the right to use sick days," among other reasons (Labor Code § 246.5(c)(1)). The law further states that there is a presumption of unlawful retaliation if an employer does any of the above actions within thirty (30) days of 1) the employee filing a complaint with the Labor Commissioner's office; 2) the employee cooperating in an investigation of a potential violation of this law; or 3) the employee opposing the employer's policy, practice or act that is in violation of this law (Labor Code § 246.5(c)(2)).
These provisions convey California's policy of ensuring that employees are afforded necessary sick days without being in fear of retaliation for using said sick days. If employers fail to honor this law by discriminating or retaliating against an employee for using sick leave, or even simply preventing an employee from trying to use paid sick leave, employers will be subject to liability. Both the Labor Commissioner and the Attorney General may enforce this law against employers; they can request that the employer reinstate the employee, pay backpay to the employee, and pay additional sick payments to the employee. A court may also impose additional penalties for each employee whose rights under this law were violated, and for each employee that the employer unlawfully withheld the paid sick days from.
Another Labor Code provision (Labor Code § 233(a)) also restricts an employer from denying an employee the right to use sick leave. Labor Code section 233 has been known as the "Kin Care" law, but given the recent addition of the Healthy Workplaces, Healthy Families Act of 2014, section 233 was also seemingly amended to incorporate this new law. Specifically, an employer may not discharge, threaten to discharge, demote, suspend, or in any manner discriminate against an employee for using or attempting to exercise the right to use sick leave. If a violation of this provision is found, the employee will be entitled to reinstatement in his/her position and damages. Employees may utilize the Labor Commissioner but may instead bring a civil action in court (Labor Code § 233(e)). 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.
Finally, if an employer has a policy that counts sick leave taken pursuant to Labor Code section 233 as an absence from work that could lead to discipline, discharge, demotion, or suspension, the law considers this a per se violation of Labor Code section 233. The employee would be entitled to seek relief as stated above pursuant to Labor Code section 233.
Labor Code sections 246.5 and 233 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 such 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.
If you think you may have potential claims relating to your employment or believe you have claims appropriate for a class action, contact our office to have your claims evaluated.