California State and City Paid Sick Leave Laws Updated September 2016

Transcription

1 State and City Laws Updated September 2016 California 1 SanFrancisco Paid SickLeave 2 Paid SickLeave Interaction of Laws Employers subject to state and local paid sick leave laws must follow the stricter standard or the law that is most beneficial to the employee when there are conflicting requirements in the laws. 2. Summary Accrual Cap: 48 hours or 6 days per year. 24 hours or 3 days (1) One hour for every 30 worked; (2) Lump sum of 24 hours or 3 days; (3) accrual with at least 24 hours by the 120 th day; or (4) For new hires, accrual with no less than 24 hours by 120 th day of employment. Accrual Cap: 40 or 72 hours Not allowed. (1) One hour for every 30 worked; or (2) Starting 1/1/2017, any lump sum with accrual at one hour for every 30 worked after lump sum has been earned. Accrual Cap: 40 or 72 hours Not allowed. One hour for every 30 worked. Accrual Cap: 48 or 72 hours Not allowed. (1) One hour for every 30 worked; (2) Lump sum of annual accrual cap; or (3) Any lump sum at the start of the year, with accrual at one hour for every 30 worked after lump sum has been earned. Accrual Cap: 72 hours 48 hours (1) One hour for every 30 worked; or (2) Lump sum of 48 hours at the start of each year. Accrual Cap: 80 hours 40 hours (1) One hour for every 30 worked; or (2) Lump sum of 40 hours at the start of each year. Accrual Cap: 1/1/17: 32 or 40 hrs. 1/1/18: 40 or 72 hrs. Same as annual accrual cap. (1) One hour for every 30 worked; or (2) Lump sum of annual accrual cap. 3. Effective Date July 1, 2015 February 5, 2007 March 2, 2015 July 2, 2015 July 1, July 11, 2016 January 1, Covered Employers Los Angeles and Long Beach Hotel Workers: This chart does not include two laws applicable to hotel workers only. In 2007, the adopted an ordinance requiring hotels with 150+ rooms within the Airport Hospitality Enhancement Zone to provide employees at least 96 paid hours off per year for any purpose, and a proportional amount of hours to part-time hotel workers. (L.A. Mun. Code ) The L.A. ordinance is available here: Worker-Minimum-Wage-Ordinance.pdf. In 2012, Long Beach voters approved Measure N, which requires hotel employers to provide at least five days of PSL to certain employees. (Long Beach Mun. Code ) The Long Beach Ordinance is available here: Ordinance.pdf. California State and City Laws September 2016 Page 1 of 12

2 5. Covered Employees Any employee who works at least 30 days in California for the employer. Any person who is employed in the City by an employer, including part-time and temporary employees. Includes participants in Welfare-to-Work Programs when the participant is engaged in work activity that would be considered "employment" under the federal Fair Labor Standards Act, and any applicable U.S. Department of Labor Guidelines. Any employee who: (1) In a particular week performs at least 2 hours of work in the City for an employer; and (2) Qualifies as an employee entitled to payment of a minimum wage from any employer under California Any employee who: (1) In a calendar week performs at least 2 hours of work in the City for an employer; and (2) Qualifies as an employee entitled to payment of a minimum wage from any employer under California Includes learners as defined by the California Industrial Welfare Commission. Any employee who: (1) In a particular week performs at least 2 hours of work in the City for an employer; (2) Qualifies as an employee entitled to payment of a minimum wage from any employer under California law; and (3) Who, on or after July 1,2016, works in the City for the same employer for 30 days or more within a year from the start of employment. All employees who: (1) In one or more calendar weeks of the year performs at least 2 hours of work in the City for an employer; and (2) Qualifies as an employee entitled to payment of a minimum wage from any employer under California law, or is a participant in a State of California Welfareto-Work Program. Any employee who: (1) In a particular week performs at least 2 hours of work in the City for an employer; and (2) Qualifies as an employee entitled to payment of a minimum wage from any employer under California 6. Excluded Employees (1) Employees covered by a collective bargaining agreement (CBA) that provides paid sick days or a paid time off policy that permits the use of sick days. (2) In-home support services workers. (3) Airline flight deck and cabin crew. (4) Certain public sector workers. (1) Employees covered by a CBA containing an explicit waiver of some or all of the ordinance s benefits written in clear and unambiguous terms. (2) Those who work in the City on an occasional basis not exceeding 55 hours in a calendar year. Employees covered by a CBA containing an explicit waiver of some or all of the ordinance s benefits written in clear and unambiguous terms. Employees covered by a CBA containing an explicit waiver of some or all of the ordinance s benefits written in clear and unambiguous terms. None. (1) Employees paid a sub-minimum wage under a specific license. (2) Employees of a publicly subsidized summer or short-term youth employment program. (3) Student employees, camp counselors, and program counselors of an organized camp. (1) Employees covered by a CBA containing an explicit waiver of some or all of the ordinance s benefits written in clear and unambiguous terms. (2) Employees of government agencies. California State and City Laws September 2016 Page 2 of 12

3 7. Permitted Uses (1) Medical need of the employee or the employee s family member; and (2) Purposes related to domestic violence, sexual assault or stalking suffered by an employee. (1) Medical need of the employee or the employee s family member; and Effective 1/1/17: (2) Purposes related to domestic violence, sexual assault or stalking suffered by an employee; and Medical need of the employee or the employee s family member. (1) Medical need of the employee or the employee s family member; and (2) To provide care for a guide dog, signal dog or service dog of the employee or family member. permitted uses under state law, PSL can be used when the employee s place of business, or his or her child s care provider or school is closed due to a public health emergency. (3) Bone marrow or organ donation by the employee or a family member. 8. Covered Family Members (1) Child (2) Parent (3) Spouse or registered domestic partner (4) Grandparent (5) Grandchild (6) Sibling (1) Child (2) Parent (3) Spouse, registered domestic partner, or designated person (4) Grandparent (5) Grandchild (6) Sibling (1) Child (2) Parent (3) Spouse, registered domestic partner, or designated person (4) Grandparent (5) Grandchild (6) Sibling law, with the addition of a designated person if the employee does not have a spouse or registered domestic partner. law, with the addition of individuals related by blood or affinity whose close association with the employee is the equivalent of a family relationship. (1) Child (2) Parent (3) Spouse or registered domestic partner (4) Grandparent (5) Grandchild (6) Sibling 9. First Day PSL Can Be Used On the 90th calendar day of employment. On the 90th calendar day of employment. On the 90th calendar day of employment. Employers with 26 or more employees: On the 90th day of employment or 7/1/2016, whichever is later. Employers with 25 or fewer employees: On the 90th day of work or 7/1/2017, whichever is later. Employers may limit use of earned sick leave until the employee s 91st day of employment with the employer. 9 On the 90th calendar day of employment. California State and City Laws September 2016 Page 3 of 12

4 10. Use Caps 24 hours or 3 days (whichever is more for the particular employee) per year. Not permitted. Not permitted. Not permitted. 48 hours per year. 40 hours per year. Employees can use up to the applicable accrual cap annually (see row 13 below). 11. Use Increments Employers cannot require that PSL be used in increments larger than 2 hours. Employers cannot require that PSL be used in increments larger than 1 hour. Employers cannot require that PSL be used in increments larger than 1 hour. Employers cannot require that PSL be used in increments larger than 2 hours. Employers cannot require that PSL be used in increments larger than 2 hours. 12. Start of Accrual First day of work or 7/1/2015, whichever is later. 90 days after the start of employment. For employees hired on or after 1/1/2017, on the first day of work. Caution: As it applies to employees hired before 1/1/2017, the ordinance is inconsistent with state First day of work. First day of work or 7/2/2015, whichever is later. Employers with 26 or more employees: First day of work or 7/1/2016, whichever is later. Employers with 25 or fewer employees: First day of work, or 7/1/2017, whichever is later. First day of work or 7/11/2016, whichever is later. First day of work. 13. Accrual Caps Employers may cap the amount of PSL an employee can accrue in a year to no less than 48 hours or 6 days (whichever is greater). Employers may cap the amount of PSL an employee can accrue at any given time to no less than: 40 hours for employers with fewer than 10 employees in any location, or 72 hours for employers with 10 or more employees in any location. Caution: The 40-hour accrual cap is lower than what is allowed under the state Employers may cap the amount of PSL an employee can accrue at any given time to no less than: 40 hours for employers with fewer than 10 employees in any location, or 72 hours for employers with 10 or more employees in any location. Caution: The 40-hour accrual cap is lower than what is allowed under the state Employers with 55 or fewer employees in the City: 48 hours Employers with more than 55 employees in the City: 72 hours Accrued unused paid sick leave may be capped at 72 hours. Effective September 2, 2016, employers may cap an employee s total accrual of PSL at no less than 80 hours. Employers with 25 or fewer employees: 32 hours as of 1/1/ hours as of 1/1/2018 Employers with 26 or more employees: 40 hours as of 1/1/ hours as of 1/1/2018 Caution: The City allows lower accrual caps than the 48 hours or 6 days allowed under state California State and City Laws September 2016 Page 4 of 12

5 14. Accrual Methods Option 1: Provide one hour of PSL for every 30 hours worked. Option 2: Provide a lump sum of 24 hours or 3 days of PSL at the start of each employment year, calendar year, or 12- month period. Option 3: Accrual on a regular basis, with at least 24 hours of PSL provided by the 120th calendar day of employment, calendar year, or 12-month period. Option 4: For new hires, accrual that provides at least 24 hours or 3 days of PSL available for use by completion of the 120th calendar day of employment. Option 1: Provide one hour of PSL for every 30 hours worked in the City. Option 2: Starting 1/1/2017, employers can provide any lump sum of PSL at the beginning of each employment year, calendar year, or 12- month period, so long as the employee can accrue additional PSL after working enough hours to have accrued the amount allocated upfront. Provide one hour for every 30 hours worked in the City. Option 1: One hour for every 30 hours worked in the City; Option 2: Provide full amount of required PSL at the start of each employment year, calendar year, or 12-month period: (a) Employers with 55 or fewer employees in the City: 48 hours; (b) Employers with more than 55 employees in the City: 72 hours. Option 3: Provide a partial amount of required PSL at the start of each employment year, calendar year, or 12- month period, and allow accrual for the remainder at one hour of PSL for every 30 hours worked. Option 1: One hour for every 30 hours worked in the City. Option 2: Provide a lump sum of 48 PSL hours at the start of each employment year, calendar year, or 12-month period. For employers using this option on a calendar year basis, on 7/1/2016, and for only the calendar year 2016, employers can provide 24 hours for the period of 7/1/2016 to 12/31/2016. On 1/1/2017, employers are required to provide the full 48 hours. Option 1: One hour for every 30 hours worked in the City. Option 2: Provide a lump sum of 40 PSL hours at the start of the benefit year. Option 1: One hour for every 30 hours worked in the City. Option 2: Provide full amount of required PSL at the start of each employment year, calendar year, or fiscal year: 26 or more employees: 1/1/2017: 40 hours 1/1/2018: 72 hours 25 or fewer employees: 1/1/2017: 32 hours 1/1/2018: 40 hours 15. Carry Over Accrued, unused PSL carries over into the next year but is limited by the employer s accrual cap. Accrued, unused PSL carries over into the next year but is limited by the employer s accrual cap. Accrued, unused PSL carries over into the next year but is limited by the employer s accrual cap. Accrued, unused PSL carries over into the next year but is limited by the employer s accrual cap. Accrued, unused PSL, including unused front-loaded PSL, carries over year to year but is limited by the employer s accrual cap. Accrued, unused PSL carries over year to year. Accrued, unused PSL carries over year to year but is limited to the employer s accrual cap. Employers who provide PSL up front do not need to roll over unused PSL from year to year. California State and City Laws September 2016 Page 5 of 12

6 16. When PSL Pay Is Due On the payday for the next regular payroll period after PSL is taken. On the payday for the next regular payroll period after PSL is taken. On the payday for the next regular payroll period after PSL is taken. On the payday for the next regular payroll period after PSL is taken. 17. Rate of Pay Nonexempt employees: PSL is paid either: (1) at the regular rate of pay for the workweek in which PSL is used; or (2) calculated by dividing total wages (excluding overtime premium pay) by the total hours worked during the full pay periods of the prior 90 days. Exempt employees: The rate of pay is calculated by the same method as any other form of paid leave time provided by the employer. Nonexempt hourly employees: PSL is paid at the employee s regular hourly rate. Nonexempt salaried employees: The rate of pay is calculated by dividing the annual salary by 52 weeks, and dividing that amount by the number of hours the employee is regularly scheduled to work up to 40 hours. Exempt employees: The rate of pay is calculated by dividing the annual salary by 52 weeks, and dividing that amount by 40 hours. If the employee s regular work week is less than 40 hours, divide the weekly salary by the number of hours worked during a regular work week. Nonexempt employees: PSL is paid at the regular rate of pay for the workweek in which PSL is used. Exempt employees: The rate of pay is calculated by the same method as any other form of paid leave time provided by the employer. 18. Cash Out of PSL California State and City Laws September 2016 Page 6 of 12

7 19. Interruption of Employment If the employee is rehired within one year from the date of separation, any previously accrued and unused PSL must be reinstated and can be used immediately upon rehire. If the employee is rehired within six months from the date of separation, any previously accrued and unused PSL must be reinstated and can be used immediately upon rehire. 20. Amount of Notice Employees Must Provide If the need for PSL is foreseeable, the employee must provide reasonable advance notice of absence. If the need is unforeseeable, the employee must provide notice as soon as practicable. Employers may require at least 2 hours notice of absence before the start of a shift, except for accidents, emergencies, or sudden illnesses for which advance notice would be unreasonable. Employers may require at least 2 hours notice of absence before the start of a shift, except for accidents, emergencies, or sudden illnesses for which advance notice would be unreasonable. An employer may require reasonable notice of a PSL absence. If the need for PSL is foreseeable, the employer may require reasonable advance notice, not to exceed seven days before the absence. If the need is unforeseeable, the employee must provide notice as soon as practicable. 21. Requiring Doctor s Note or Other Documentation Requiring documentation is not permitted under the California Labor Commissioner s interpretation of the Requiring documentation is presumptively reasonable: (1) for a PSL absence exceeding 3 consecutive work days; (2) a doctor s appointment; or (3) where there is a pattern or clear instance of abuse. Caution: On this issue, the City ordinance is inconsistent with the California Labor Commissioner s interpretation of the California Requiring documentation is presumptively reasonable: (1) for a PSL absence exceeding three consecutive work days, or (2) to verify a subsequent absence where abuse is suspected. Caution: On this issue, the City ordinance is inconsistent with the California Labor Commissioner s interpretation of the California Permitted. Caution: On this issue, the City ordinance is inconsistent with the California Labor Commissioner s interpretation of the California Permitted for an absence exceeding three consecutive work days. Caution: On this issue, the City ordinance is inconsistent with the California Labor Commissioner s interpretation of the California California State and City Laws September 2016 Page 7 of 12

8 22. Employers Notice Obligations Employers must: (1) Display the state s official poster; (2) For nonexempt employees, include PSL information in their wage notices ( se/lc_2810.5_notice.p df); and (3) Include the amount of available PSL in employees wage statements. notice requirements under the California law, employers must: (1) Display the City s official poster; and (2) Include the amount of available City PSL in employees wage statements. notice requirements under the California law, employers must: (1) Display the City s official poster; and (2) At the time of hire, provide employees written notice of the employer s name, address, and telephone number. notice requirements under the California law, employers must: (1) Display the City s official poster; (2) Provide the City s official notice of rights to current employees and new employees at the time of hire; and (3) At the time of hire, provide employees written notice of the employer s name, address, and telephone number. notice requirements under the California law, employers must: (1) Display the City s official poster; and (2) At the time of hire, provide employees written notice of the employer s name, address, and telephone number. notice requirements under the California law, employers must: (1) Display the City s official poster; and (2) At the time of hire, or by 10/1/2016, whichever is later, provide written notice of the employer s legal name and any fictitious business name, address, and telephone number, and information on how the employer satisfies the ordinance, including method of PSL accrual. notice requirements under the California law, employers must: (1) Display the City s official bulletin; and (2) At the time of hire, provide employees written notice of the employer s name, address, and telephone number. 23. Record Retention for 3 years. for 4 years. for 3 years. for 3 years. for 4 years. for 3 years. for 3 years. California State and City Laws September 2016 Page 8 of 12

9 24. Paid Time Off Policies No additional benefits are required if the paid time off can be used for the same purposes and under the same conditions required by the law, and: (1) the policy meets the law s accrual, carry-over, and use requirements; (2) the policy applied before 1/1/2015, and provides at least one day or eight hours of paid leave within three months of employment, and at least three days or 24 hours can be accrued within nine months of employment; or No additional benefits are required if the paid leave can be used for the same purposes and meets the minimum accrual requirements of the No additional benefits are required if the paid leave can be used for the same purposes and meets the minimum accrual requirements of the No additional benefits are required if the policy provides at least 48 hours of paid time off. Where the policy does not meet all of the ordinance s requirements, the City may still determine that additional benefits are not required if the policy is overall more generous to employees. No additional benefits are required if the paid leave can be used for the same purposes and meets the minimum accrual requirements of the An employer who provides greater paid time off than that required by the City is deemed in compliance even if the employer uses an alternative methodology for calculation of, payment of, and use of PSL. (3) the policy provides sick leave or annual leave benefits to certain public sector employees. California State and City Laws September 2016 Page 9 of 12

10 25. Retaliation Employers may not exercising rights under the law, such as by using PSL, filing a complaint, cooperating in a State investigation or prosecution, or opposing an unlawful policy or practice. There is a rebuttable presumption of retaliation if an employee suffers a negative employment action within 30 days of the employee s filing of a complaint with the Labor Commissioner, cooperating with an investigation or prosecution of a violation, or opposing a policy, practice or act prohibited by the Employers may not exercising rights under the ordinance, such as by filing a complaint with the City, informing any person of his or her potential rights or about a potential violation, cooperating with an investigation, or opposing an unlawful policy or practice. Taking an adverse action against an employee within 90 days of the employee's exercise of rights protected by the ordinance raises a rebuttable presumption of having done so in retaliation for the exercise of such rights. Employers may not making a complaint to the City, participating in any of its proceedings, using any civil remedies to enforce his or her rights, or otherwise asserting his or her rights under the Within 120 days of the employer learning of such activity, it is unlawful for the employer to discharge any employee who engaged in such activity unless the employer has clear and convincing evidence of just cause for such discharge. Employers may not making a complaint to the City, participating in any of its proceedings, using any civil remedies to enforce his or her rights, or otherwise asserting his or her rights under the Within 120 days of the employer learning of such activity, it is unlawful for the employer to discharge any employee who engaged in such activity unless the employer has clear and convincing evidence of just cause for such discharge. Employers may not exercising their rights under the ordinance, such as filing a complaint with the City, or informing any person of his or her potential rights or about a potential violation. Taking an adverse action against an employee within 90 days of the employee's exercise of rights protected by the ordinance raises a rebuttable presumption of having done so in retaliation for the exercise of such rights. Employers may not exercising rights under the ordinance, such as by requesting or using PSL, reporting a violation to the City, informing any person of his or her potential rights or about a potential violation, or participating in an administrative or judicial action. Taking an adverse action against an employee within 90 calendar days of the employee s exercise of rights under the ordinance raises a rebuttable presumption of having done so in retaliation for the exercise of such rights. Employers may not exercising rights under the ordinance, such as by opposing a practice prohibited by the law, participating in proceedings related to the law, or seeking to enforce his or her rights under the law by lawful means. Taking an adverse action against a person within 90 days of the person's exercising rights protected under the ordinance raises a rebuttable presumption of having done so in retaliation for the exercise of such rights. California State and City Laws September 2016 Page 10 of 12

11 26. Enforcement The law does not directly permit a private right of action by an aggrieved employee. It remains unclear, however, if an aggrieved employee can file suit under the California Private Attorney General Act of 2004 (PAGA). The City is authorized to investigate potential violations, settle complaints, and impose fines and penalties. The City or an aggrieved employee can bring a civil action in court to enforce the local The City is authorized to investigate potential violations, and to award the same relief in its proceedings as a court of law could. The City or an aggrieved employee can bring a civil action in court to enforce the The City is authorized to investigate potential violations, and to award the same relief in its proceedings as a court of law could. The City or an aggrieved employee can bring a civil action in court to enforce the The City is authorized to investigate potential violations, settle complaints, and impose fines and penalties. The City or an aggrieved employee can bring a civil action in court to enforce the The City is authorized to investigate potential violations, settle complaints, and impose fines and penalties. The City or an aggrieved employee can bring a civil action in court to enforce the The City will contract with Los Angeles County to process and investigate claims. A violation can result in fines, penalties and criminal liability. An aggrieved employee can bring a civil action in court to enforce the 1 See the California Department of Industrial Relations Healthy Workplace Healthy Family Act of 2014 (AB 1522) website, and Frequently Asked Questions at See also CalChamber s 10 Things You Might Not Know About California s Law white paper: 2 See s Ordinance website: Information on s geographical boundaries can be found here: and See s Minimum Wage and Paid Sick website: Information on s geographical boundaries can be found here: 4 See s Minimum Wage and Ordinance website: Information on s geographical boundaries can be found here: 5 See the s Minimum Wage and website: Information on geographical boundaries can be found here: and 6 See the s and Minimum Wage website: Information on the s geographical boundaries can be found here: and 7 See the City of s and Minimum Wage website: California State and City Laws September 2016 Page 11 of 12

12 8 Effective Date: The effective date of the ordinance depends on the size of the employer. Employers with 26 or more employees must comply by July 1, Employers with 25 or fewer employees ( small businesses ) have until July 1, 2017 to comply. A small business should complete MW-2 Small Business Deferral Eligibility Worksheet, which is available at and published by the City to assist employers in determining eligibility. 9 See San Diego Sick Leave and Minimum Wage Ordinance Frequently Asked Questions (FAQ), p. 2, revised August 8, 2015, For more information contact: Tyreen G. Torner ttorner@foxrothschild.com 2016 Fox Rothschild LLP. All rights reserved. This publication was prepared as an educational resource and should not be relied on or construed as legal advice. Use of this table alone will not ensure compliance with applicable The reader should consult with knowledgeable legal counsel to determine how applicable laws apply to specific facts and situations. This publication is based on the most current information at the time it was written. Since it is possible that the laws or other circumstances may have changed since publication, please call us to discuss any action you may be considering as a result of reading this publication. Attorney Advertising California State and City Laws September 2016 Page 12 of 12