Bill Text: CA SB881 | 2023-2024 | Regular Session | Amended
Bill Title: Paid sick days: accrual and use.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2024-02-01 - Returned to Secretary of Senate pursuant to Joint Rule 56. [SB881 Detail]
Download: California-2023-SB881-Amended.html
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Amended
IN
Senate
April 11, 2023 |
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Amended
IN
Senate
March 22, 2023 |
CALIFORNIA LEGISLATURE—
2023–2024 REGULAR SESSION
Senate Bill
No. 881
| Introduced by Senator Alvarado-Gil |
February 17, 2023 |
An act to amend Sections 246 and 248.5 of the Labor Code, relating to employment.
LEGISLATIVE COUNSEL'S DIGEST
SB 881, as amended, Alvarado-Gil.
Paid sick days: accrual and use.
Existing law, with certain exceptions, entitles an employee to paid sick days for certain purposes if the employee works in California for the same employer for 30 or more days within a year from the commencement of employment. Existing law requires the leave to be accrued at a rate of no less than one hour for every 30 hours worked, and to be available for use beginning on the 90th day of employment.
Existing law authorizes an employer to use a different accrual method as long as an employee has no less than 24 hours of accrued sick leave or paid time off by the 120th calendar day of employment or each calendar year, or in each 12-month period. Existing law also provides that an employer may satisfy the accrual requirements by providing not less than 24 hours or 3 days of paid sick leave that is available to the employee to use by the
completion of the employee’s 120th calendar day of employment.
Under existing law, an employer has no obligation under these provisions to allow an employee’s total accrual of paid sick leave to exceed 48 hours or 6 days, provided that an employee’s rights to accrue and use paid sick leave are not otherwise limited, as specified. Under existing law, sick leave carries over to the following year of employment, but an employer is permitted to limit the use of the carryover amount, in each year of employment, calendar year, or 12-month period, to 24 hours or 3 days.
This bill would modify the employer’s alternate sick leave accrual method to require that an employee have no less than 40 hours of accrued sick leave or paid time off by the 200th calendar day of employment or each calendar year, or in each 12-month period. The bill would modify that satisfaction provision to
authorize an employer to satisfy accrual requirements by providing not less than 40 hours or 5 days of paid sick leave that is available to the employee to use by the completion of the employee’s 200th calendar day of employment. The bill would also provide that an employer is under no obligation to allow an employee’s total accrual of paid sick leave to exceed 80 hours or 10 days, as specified. The bill would raise the employer’s authorized limitation on the employee’s use of carryover sick leave to 40 hours or 5 days.
Under existing law, an employer is not required to provide additional paid sick leave days if the employer has a paid leave policy or paid time off policy that provided paid sick leave or paid time off to a class of employees before January 1, 2015, and the employee was eligible to earn at least 3 days or 24 hours of sick leave or paid time off within 9 months of employment.
This bill would instead provide that an employer is not required to provide additional paid sick leave days in the above circumstances if the employer provided paid sick leave or paid time off to a class of employees before January 1, 2024, and the employee was eligible to earn at least 5 days or 40 hours of sick leave or paid time off within 9 months of employment, subject to certain conditions.
Existing law requires paid sick leave for nonexempt employees to be calculated in the same manner as the regular rate of pay for the workweek in which the employee uses paid sick time, as specified.
This bill would instead require paid sick leave for nonexempt employees to be paid at the employee’s base rate of pay. The bill would also authorize an employer to request an employee, if an employee uses paid sick leave, to provide a written statement indicating that the employee was absent from
work for a specified reason, and in certain cases, to provide written documentation regarding the leave. The bill would provide that an employer is not in violation of these provisions if the employer denies leave based on a determination that the verification or documentation is false.
Existing law establishes that providers of in-home supportive services accrue sick leave in accordance with a schedule that is based on the timeline for state minimum wage increases, up to a maximum of 24 hours or 3 days when the minimum wage reaches $15 per hour.
This bill would amend the schedule for in-home supportive services providers to increase the sick leave accrual maximum to 40 hours or 5 days in each year of employment, beginning January 1, 2026.
The bill would also provide that, on or after
January 1, 2024, a county, city, or municipality shall not adopt an ordinance, resolution, law, rule, or regulation, or amend an ordinance, resolution, law, rule, or regulation regarding paid sick leave, other than related to COVID-19-specific paid leave. The bill would provide that these sick leave provisions would preempt any existing local ordinance, resolution, law, rule, or regulation regarding earned sick leave, other than excluding local ordinances regarding COVID-19-specific sick leave, leave and local ordinances enacted before January 1, 2023, as specified.
Existing law
authorizes the Labor Commissioner to enforce the above provisions governing paid sick leave, including by investigating an alleged violation, and ordering appropriate temporary relief to mitigate the violation, issuing a citation, and filing a civil action.
The Labor Code Private Attorneys General Act of 2004 authorizes an aggrieved employee who complies with specified notice and filing requirements to bring a civil action to recover specified civil penalties that would otherwise be assessed and collected by the Labor and Workforce Development Agency.
This bill would provide that the paid sick leave provisions are not enforceable by an action under the Labor Code Private Attorneys General Act of 2004.
The bill would include findings that changes proposed by this bill address a matter of statewide concern rather than a municipal affair and, therefore, apply to all cities and
counties, including charter cities and counties.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: NOBill Text
The people of the State of California do enact as follows:
SECTION 1.
Section 246 of the Labor Code is amended to read:246.
(a) (1) An employee who, on or after July 1, 2015, works in California for the same employer for 30 or more days within a year from the commencement of employment is entitled to paid sick days as specified in this section. For an individual provider of waiver personal care services under Section 14132.97 of the Welfare and Institutions Code who also provides in-home supportive services in an applicable month, eligibility shall be determined based on the aggregate number of monthly hours worked between in-home supportive services and waiver personal care services pursuant to subdivision (d) of Section 14132.971.(2) On and after July 1, 2018, a provider of in-home supportive services
under Section 14132.95, 14132.952, or 14132.956 of, or
Article 7 (commencing with Section 12300) of Chapter 3 of Part 3 of Division 9 of, the Welfare and Institutions Code, who works in California for 30 or more days within a year from the commencement of employment is entitled to paid sick days as specified in subdivision (e) and subject to the rate of accrual in paragraph (1) of subdivision (b). For an individual provider of waiver personal care services under Section 14132.97 of the Welfare and Institutions Code, entitlement to paid sick days begins on July 1, 2019.
(b) (1) An employee shall accrue paid sick days at the rate of not less than one hour per every 30 hours worked, beginning at the commencement of employment or the operative date of this article, whichever is later, subject to the use and accrual limitations set forth in this section.
(2) An employee who is exempt from overtime requirements as an administrative, executive, or professional employee under a wage order of the Industrial Welfare Commission is deemed to work 40 hours per workweek for the purposes of this section, unless the employee’s normal workweek is less than 40 hours, in which case the employee shall accrue paid sick days based upon that normal workweek.
(3) An employer may use a different accrual method, other than providing one hour per every 30 hours worked, provided that the accrual is on a regular basis so that an employee has no less than 40 hours of accrued sick leave or paid time off by the
200th calendar day of employment or each calendar year, or in each 12-month period.
(4) An employer may satisfy the accrual requirements of this section by providing not less than 40 hours or five days of paid sick leave that is available to the employee to use by the completion of the employee’s 200th calendar day of
employment.
(c) An employee shall be entitled to use accrued paid sick days beginning on the 90th day of employment, after which day the employee may use paid sick days as they are accrued.
(d) Accrued paid sick days shall carry over to the following year of employment. However, an employer may limit an employee’s use of accrued paid sick days to 40 hours or five days in each year of employment, calendar year, or 12-month period. This section shall be satisfied and no accrual or carryover is required if the full amount of leave is received at the beginning of each year of employment, calendar year, or 12-month period. The term “full amount of leave” means five days or 40
hours.
(e) For a provider of in-home supportive services under Section 14132.95, 14132.952, or 14132.956 of, or Article 7 (commencing with Section 12300) of Chapter 3 of Part 3 of Division 9 of, and an individual provider of waiver personal care services under Section 14132.97 of, the Welfare and Institutions Code, the term “full amount of leave” is defined as follows:
(1) Eight hours or one day in each year of employment, calendar year, or 12-month period beginning July 1, 2018.
(2) Sixteen hours or two days in each year of employment, calendar year, or 12-month period beginning when the minimum wage, as set forth in paragraph (1) of subdivision (b) of Section 1182.12 and accounting for any years
postponed under subparagraph (D) of paragraph (3) of subdivision (d) of Section 1182.12, has reached thirteen dollars ($13) per hour.
(3) Twenty-four hours or three days in each year of employment, calendar year, or 12-month period beginning when the minimum wage, as set forth in paragraph (1) of subdivision (b) of Section 1182.12 and accounting for any years postponed under subparagraph (D) of paragraph (3) of subdivision (d) of Section 1182.12, has reached fifteen dollars ($15) per hour.
(4) Forty hours or five days in each year of employment, calendar year, or 12-month period, beginning January 1, 2026.
(f) An employer is not required to provide additional paid sick days pursuant to this section if the employer has a
paid leave policy or paid time off policy, the employer makes available an amount of leave applicable to employees that may be used for the same purposes and under the same conditions as specified in this section, and the policy satisfies one of the following:
(1) Satisfies the accrual, carryover, and use requirements of this section.
(2) Provided paid sick leave or paid time off to a class of employees before January 1, 2024, pursuant to a sick leave policy or paid time off policy that used an accrual method different than providing one hour per 30 hours worked, provided that the accrual is on a regular basis so that an employee, including an employee hired into that class after January 1, 2024, has no less than one day or eight hours of accrued sick leave or paid time off
within three months of employment of each calendar year, or each 12-month period, and the employee was eligible to earn at least five days or 40 hours of sick leave or paid time off within nine months of employment. If an employer modifies the accrual method used in the policy it had in place prior to January 1, 2024, the employer shall comply with any accrual method set forth in subdivision (b) or provide the full amount of leave at the beginning of each year of employment, calendar year, or 12-month period. This section does not prohibit the employer from increasing the accrual amount or rate for a class of employees covered by this subdivision.
(3) Notwithstanding any other law, sick leave benefits provided pursuant to the provisions of Sections 19859 to 19868.3, inclusive, of the Government Code, or annual leave benefits provided pursuant
to the provisions of Sections 19858.3 to 19858.7, inclusive, of the Government Code, or by provisions of a memorandum of understanding reached pursuant to Section 3517.5 that incorporate or supersede provisions of Section 19859 to 19868.3, inclusive, or Sections 19858.3 to 19858.7, inclusive of the Government Code, meet the requirements of this section.
(g) (1) Except as specified in paragraph (2), an employer is not required to provide compensation to an employee for accrued, unused paid sick days upon termination, resignation, retirement, or other separation from employment.
(2) If an employee separates from an employer and is rehired by the employer within one year from the date of separation, previously accrued and unused paid sick days shall be reinstated. The
employee shall be entitled to use those previously accrued and unused paid sick days and to accrue additional paid sick days upon rehiring, subject to the use and accrual limitations set forth in this section. An employer is not required to reinstate accrued paid time off to an employee that was paid out at the time of termination, resignation, or separation of employment.
(h) An employer may lend paid sick days to an employee in advance of accrual, at the employer’s discretion and with proper documentation.
(i) An employer shall provide an employee with written notice that sets forth the amount of paid sick leave available, or paid time off leave an employer provides in lieu of sick leave, for use on either the employee’s itemized wage statement described in Section 226 or in a
separate writing provided on the designated pay date with the employee’s payment of wages. If an employer provides unlimited paid sick leave or unlimited paid time off to an employee, the employer may satisfy this section by indicating on the notice or the employee’s itemized wage statement “unlimited.” The penalties described in this article for a violation of this subdivision shall be in lieu of the penalties for a violation of Section 226. This subdivision shall apply to employers covered by Wage Order 11 or 12 of the Industrial Welfare Commission only on and after January 21, 2016.
(j) An employer has no obligation under this section to allow an employee’s total accrual of paid sick leave to exceed 80 hours or 10 days, provided that an employee’s rights to accrue and use paid sick leave are not limited other than as allowed under this
section.
(k) An employee may determine how much paid sick leave they need to use, provided that an employer may set a reasonable minimum increment, not to exceed two hours, for the use of paid sick leave.
(l) For the purposes of this section, an employer shall calculate paid sick leave using any of the following calculations:
(1) Paid sick time for nonexempt employees shall be paid at the employee’s base rate of pay.
(2) Paid sick time for nonexempt employees shall be calculated by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of
employment.
(3) Paid sick time for exempt employees shall be calculated in the same manner as the employer calculates wages for other forms of paid leave time.
(m) If the need for paid sick leave is foreseeable, the employee shall provide reasonable advance notification. If the need for paid sick leave is unforeseeable, the employee shall provide notice of the need for the leave as soon as practicable.
(n) (1) If an employee uses paid sick leave, an employer may request that an employee provide a written statement signed by the employee stating that the employee was absent from work for a reason specified in subdivision (a) of Section 246.5.
(2) If an employee uses paid sick leave on three or more consecutive work days, an employer may request that an employee provide reasonable written documentation demonstrating that the employee was absent from work for a reason specified in subdivision (a) of Section 246.5.
(3) An employer shall not be in violation of this section if the employer denies leave based on a determination that the verification or documentation provided is false.
(o) An employer shall provide payment for sick leave taken by an employee no later than the payday for the next regular payroll period after the sick leave was taken.
(p) The State Department of Social Services, in consultation with stakeholders, shall convene a workgroup
to implement paid sick leave for in-home supportive services providers as specified in this section. This workgroup shall finish its implementation work by November 1, 2017, and the State Department of Social Services shall issue guidance such as an all-county letter or similar instructions by December 1, 2017.
(q) No later than February 1, 2019, the State Department of Social Services, in consultation with the Department of Finance and stakeholders, shall reconvene the paid sick leave workgroup for in-home supportive services providers. The workgroup shall discuss how paid sick leave affects the provision of in-home supportive services. The workgroup shall consider the potential need for a process to cover an in-home supportive services recipient’s authorized hours when a provider needs to utilize their sick time. This workgroup
shall finish its work by November 1, 2019.
(r) Notwithstanding the rulemaking provisions of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code), the State Department of Social Services may implement, interpret, or make specific this section by means of an all-county letter, or similar instructions, without taking any regulatory action.
(s) (1) On or after January 1, 2024, a county, city, or municipality shall not adopt any ordinance, resolution, law, rule, or regulation or amend any such ordinance, resolution, law, rule, or regulation regarding paid sick leave other than related to COVID-19-specific paid sick leave.
(2) This section shall preempt any existing local ordinance, resolution, law, rule, or regulation regarding earned sick leave, other than local except as specified as follows:
(A) Local ordinances regarding COVID-19-specific sick leave, including any local ordinance that requires an employer to provide a number of paid sick days in excess of what is required by this section.
(B) On and after January 1, 2024, an employer who, pursuant to a local ordinance enacted before January 1, 2023, is required to provide sick leave in an amount that exceeds the sick leave requirements specified in subdivision (b) shall provide the amount of sick leave required by that local ordinance.
SEC. 2.
Section 248.5 of the Labor Code is amended to read:248.5.
(a) The Labor Commissioner shall enforce this article, including investigating an alleged violation, and ordering appropriate temporary relief to mitigate the violation or to maintain the status quo pending the completion of a full investigation or hearing through the procedures set forth in Sections 98, 98.3, 98.7, 98.74, or 1197.1, including by issuance of a citation against an employer who violates this article, and by filing a civil action. If a citation is issued, the procedures for issuing, contesting, and enforcing judgments for citations and civil penalties issued by the Labor Commissioner shall be the same as those set out in Section 98.74 or 1197.1, as appropriate.(b) (1) If the Labor Commissioner, in any administrative
proceeding under subdivision (a), determines that a violation of this article has occurred, they may order any appropriate relief, including reinstatement, backpay, the payment of sick days unlawfully withheld, and the payment of an additional sum in the form of an administrative penalty to an employee or other person whose rights under this article were violated.
(2) If paid sick days were unlawfully withheld, the dollar amount of paid sick days withheld from the employee multiplied by three, or two hundred fifty dollars ($250), whichever amount is greater, but not to exceed an aggregate penalty of four thousand dollars ($4,000), shall be included in the administrative penalty.
(3) If a violation of this article results in other harm to the employee or person, such as
discharge from employment, or otherwise results in a violation of the rights of the employee or person, the administrative penalty shall include a sum of fifty dollars ($50) for each day or portion thereof that the violation occurred or continued, not to exceed an aggregate penalty of four thousand dollars ($4,000).
(c) Where prompt compliance by an employer is not forthcoming, the Labor Commissioner may take any appropriate enforcement action to secure compliance, including the filing of a civil action. In compensation to the state for the costs of investigating and remedying the violation, the commissioner may order the violating employer to pay to the state a sum of not more than fifty dollars ($50) for each day or portion of a day a violation occurs or continues for each employee or other person whose rights under this article
were violated.
(d) An employee or other person may report to the Labor Commissioner a suspected violation of this article. The commissioner shall encourage reporting pursuant to this subdivision by keeping confidential, to the maximum extent permitted by applicable law, the name and other identifying information of the employee or person reporting the violation. However, the commissioner may disclose that person’s name and identifying information as necessary to enforce this article or for other appropriate purposes, upon the authorization of that person.
(e) The Labor Commissioner or the Attorney General may bring a civil action in a court of competent jurisdiction against the employer or other person violating this article and, upon prevailing, shall be entitled to collect legal or
equitable relief on behalf of the aggrieved as may be appropriate to remedy the violation, including reinstatement, backpay, the payment of sick days unlawfully withheld, the payment of an additional sum, not to exceed an aggregate penalty of four thousand dollars ($4,000), as liquidated damages in the amount of fifty dollars ($50) to each employee or person whose rights under this article were violated for each day or portion thereof that the violation occurred or continued, plus, if the employer has unlawfully withheld paid sick days to an employee, the dollar amount of paid sick days withheld from the employee multiplied by three; or two hundred fifty dollars ($250), whichever amount is greater; and reinstatement in employment or injunctive relief; and further shall be awarded reasonable attorney’s fees and costs, provided, however, 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.
(f) In an administrative or civil action brought under this article, the Labor Commissioner or court, as the case may be, shall award interest on all amounts due and unpaid at the rate of interest specified in subdivision (b) of Section 3289 of the Civil Code.
(g) This article shall not be enforced by an action under Part 13 (commencing with Section 2698).
(h) The remedies, penalties, and procedures provided under this article are cumulative.
(i) An employer shall not
be assessed any penalty or liquidated damages under this article due to an isolated and unintentional payroll error or written notice error that is a clerical or an inadvertent mistake regarding the accrual or available use of paid sick leave. In reviewing for compliance with this section, the factfinder may consider as a relevant factor whether the employer, prior to an alleged violation, has adopted and is in compliance with a set of policies, procedures, and practices that fully comply with this section.
