TWO NEW, SIGNIFICANT CALIFORNIA EMPLOYMENT LAWS: PAID SICK LEAVE AND ANTI-DISCRIMINATION BASED ON LACK OF CALIFORNIA DRIVER’S LICENSE
New Paid Sick Leave Law
On September 10, 2014, California Governor Jerry Brown signed into law the “Healthy Workplaces, Healthy Families Act of 2014.” This new law, which becomes effective on July 1, 2015, will require California employers to make significant changes to allow employees to accrue “paid” sick leave. See text of new law, AB 1522, codified at Cal. Lab. Code § 245:
Unlike other California leave of absence laws, there is no exemption for small employers. The new law also applies to part-time and temporary employees. This new law does not apply to individuals who provide in-home supportive services, certain air carrier employees such as flight deck or cabin crew members subject to the federal Railway Labor Act, or employees covered by a valid collective bargaining agreement that expressly provides for paid sick days.
Accrual of Paid Sick Leave
Beginning July 1, 2015, employees who have worked 30 or more days in California within a year of their employment will accrue paid sick leave. Paid sick days must accrue at a rate of one hour for every 30 hours worked, beginning when they start employment or on the effective date of the statute. Employers may limit employees to using 24 hours (or three 8-hour work days) of paid sick leave per year. Significantly, employers may cap total accrual of paid sick days at 48 hours (or six 8-hour work days).
Employees can begin to use their accrued sick leave on the 90th day of their employment. Employees may decide the amount of leave they need to use, although employers may set a reasonable minimum increment of two hours. Accrued, but unused, sick days must carry over into the following year, subject to the 48 hour/six-day accrual cap.
Employees are not entitled to be paid for accrued but unused sick days upon resignation or termination of employment. However, if an employer rehires an employee within one year of the employee’s separation, the employer must reinstate any unused sick leave that the re-hired employee had previously accrued.
Employers with existing sick leave or paid time off (“PTO”) policies do not have to provide additional leave, as long as their policies: (1) already comply with the law’s accrual, usage, and carry over requirements; and (2) provide no less than 24 hours of paid sick leave annually.
Leave Authorized for Employees or Their Immediate Family and/or Domestic Partners
Paid sick days may be used for the diagnosis, care, or treatment of an existing health condition for, or the preventive care of an employee, or an employee’s immediate family member. Covered family members include spouses, registered domestic partners, children (regardless of age), parents (including step-parents and parents-in-law), grandparents, and siblings. Paid sick days are also available for employees who are the victims of domestic violence, sexual assault, or stalking. Employees must provide “reasonable advance notification” of their need to use the leave as soon as practicable. The law specifically permits employees to make requests to use accrued sick leave orally or in writing.
Notice and Recordkeeping Requirements
California employers must provide employees with written notice of their available amount of paid sick leave (or PTO leave provided in lieu of sick leave). This notice must be either on the employee’s itemized wage statement or in a separate document provided on the employee’s pay date at the time wages are paid. Employers must document and retain for at least three years records of employee paid sick leave usage and accrual. These records must be made available for employee inspection within 21 days of a written or oral request. If a California employer fails to keep adequate records, it will be presumed that the affected employee is entitled to the maximum number of accruable hours under the law. In addition, employers must provide new employees, at the time of their hiring, as part of the Wage Theft Prevention Act notice, notice of their entitlement to paid sick leave and their right to file a complaint with the California Labor Commissioner (Division of Labor Standards Enforcement) in the event of any violations. Employers must also post a workplace notice from the Labor Commissioner regarding this new law.
Enforcement and Penalties
Significantly, the new law establishes a rebuttable presumption of unlawful retaliation for any adverse employment action occurring within 30 days of an employee engaging in certain protected activity. The new law defines “protected activity” broadly as: (1) filing a complaint with the Labor Commissioner for violations of this new law; (2) cooperating with an investigation or prosecution of a violation of this law; or (3) opposing an employer’s policy, practice, or act that violates this law. The Labor Commissioner is charged with the law’s enforcement and regulation. Upon finding a violation, the Labor Commissioner may order “any appropriate relief” including reinstatement, backpay, payment of unlawfully withheld sick days, administrative penalties, and enforcement fines payable to the state. The law also authorizes the Labor Commissioner or the Attorney General to institute a civil action, on behalf of aggrieved employees, to seek as penalties reinstatement, backpay, administrative penalties, liquidated damages, and reasonable attorney’s fees.
Compliance with this New Law
California employers should update their sick leave and record-retention policies to ensure compliance with this new law. California employers must also ensure that their employee wage statements for California employees comply with the new notice requirements. California employers should revise their employee handbooks to comply with this new paid sick leave law, including “caps” on accrual, as non-compliant handbook language may be used to prove a violation.
New Anti-Discrimination Based on Absence of California Driver’s License Number Law
On September 17, 2014, Governor Brown signed into law AB 1660, which prohibits employers from discriminating against applicants and employees without valid California driver’s licenses. See text of new law, AB 1660, codified at amended Cal. Gov’t Code § 12926, and amended Sections 1653.5, 12800.7, and 12801.9 of the Vehicle Code, relating to driver’s licenses:
Current law requires the Department of Motor Vehicles (“DMV”) to issue an original driver’s license to a person who is unable to submit satisfactory proof that the applicant’s presence in the United States is authorized under federal law if he or she meets all other qualifications for licensure and provides satisfactory proof to the department of his or her identity and California residency. Current law also makes it a violation of law, including the Unruh Civil Rights Act, to discriminate against an individual because he or she holds or presents a driver’s license issued under these provisions. Current law also prohibits using a driver’s license issued under these provisions as a basis for a criminal investigation, arrest, or detention in circumstances where a person whose driver’s license was not issued under these provisions would not be criminally investigated, arrested, or detained.
This new law additionally makes it a violation of the California Fair Housing and Employment Act (“FEHA”) for an employer or other covered entity to discriminate against an individual because he or she holds or presents a driver’s license issued under these provisions or to require a person to present a driver’s license, except as specified. The law amends the FEHA to specify that discrimination on the basis of national origin includes discrimination on the basis of possessing a driver’s license granted under these provisions. The new law also prohibits a governmental authority, or agent of a governmental authority, or person acting on behalf of a governmental authority, from discriminating against an individual because he or she holds or presents a license issued pursuant to those provisions. The law provides an exception for actions taken by an employer to comply with any requirement or prohibition under the federal Immigration and Nationality Act, which do not violate new law.
This new law also makes the prohibition against using a driver’s license issued under those provisions as a basis for an investigation, arrest, or detention apply to citations and also apply regardless of whether the investigation, arrest, citation, or detention is criminal. Additionally, this new law prohibits the DMV from disclosing to the public the information it obtains regarding the ineligibility of an applicant for a social security number, except as specified. The law provides that any document provided by an applicant to the DMV for purposes of proving his or her identity, true, full name, or California residency, or that the applicant’s presence in the United States is authorized under federal law, is not a public record. The law also makes driver’s license information obtained by an employer exempt from disclosure under the California Public Records Act.
Employers should take note of the new law and take proactive steps to ensure that managers and human resources personnel do not insist on valid California driver’s license, or discriminate against applicants and employees who possess the alternative California driver’s licenses approved by the DMV.