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S P R I N G 2 0 1 5
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full sick leave rights for both the instant
year and the beginning of the next year.
Finally, employers have the option of
avoiding calculating accrual and carry
over by frontloading the amount of sick
leave that can be used at the beginning
of each year to 24 hours or three days.
How Is Sick Leave
Compensated?
Sick leave is paid at the employee's
hourly wage. For situations involving
varying pay rates, such as different
hourly pay, commission or piece rate
compensation or for non-exempt salaried
employees, the employer must divide
the employee's total wages (excluding
overtime) by the employee's total
hours worked in the full pay periods
for the prior 90 days of employment to
determine the appropriate "hourly wage"
for the employee's paid sick leave. Sick
leave must be paid by the payday for the
next regular payroll period after the sick
leave was taken.
When Can Sick Leave Be
Utilized?
Employees are entitled to use accrued
paid sick days beginning on the 90th
day of employment, after which they may
use paid sick days as they are accrued.
Employers have discretion to lend
paid sick days in advance of accrual.
Employers may not require employees to
locate a replacement worker to cover the
dates on which the employee uses paid
sick days.
Employees are entitled to use paid
sick time for preventative care for
themselves or a family member, as well
as for the diagnosis, care or treatment of
their or their family member's existing
health condition. Employers must also
permit employees to use paid sick days
if they are victims of domestic violence,
sexual assault or stalking.
What Notice to Employers
by Employees Does the Law
Require?
Employees are expected to provide
employers with "reasonable" advance
notice if the need for paid sick leave is
foreseeable. Where it is unforeseeable,
employees must provide notice as soon
as practicable.
What Posting and Record
Retention Obligations Does
the Employer Have?
On or before January 1, 2015, or at
the time of hire, whichever is later,
employers are required to provide written
information to the employee about the
right to accrue and use paid sick leave,
the right to be free from retaliation, and
the right to file a complaint with the
Labor Commissioner.
Employers are also required to
display in a conspicuous space in each
workplace a poster notifying employees
of their paid sick leave rights.
Employers are required to provide
employees with written information
identifying the amount of paid sick
leave they currently have available,
or paid time off they currently have
available if an employer provides paid
time off in lieu of sick leave, on either
the employee's itemized wage statement
pursuant to requirements of Labor Code
Section 226, or in a separate writing
provided on each designated pay date
to accompany the employee's payment
of wages.
Finally, employers are required to
retain, for at least three years, records
documenting hours worked, paid sick
days accrued, and paid sick days used
by each employee.
What Are the Consequences
of Retaliatory Actions by the
Employer?
Employees may file discrimination or
retaliation claims against their employers
for any sick leave violation either with
the Labor Commissioner or in a court of
law.
The Labor Commissioner may enforce
violations of this new law by awarding
reinstatement, back pay, and payment
of sick days unlawfully withheld, plus
the payment of an additional sum in the
form of an administrative penalty, to an
employee whose rights were violated.
In order to encourage reporting of
violations, employees or other persons
may report specific violations to the
Labor Commissioner and the Labor
Commissioner may keep the reporting
employee's identifying information
confidential.
Finally, employers are advised that
this new law establishes "minimum"
requirements for sick days and does
not preempt, limit or otherwise affect
the applicability of any other law or
ordinance that provides greater accrual
of use of paid sick days. California
employers must already consider slightly
different variations in San Francisco, San
Diego and Long Beach.
What Are Our Recommendations
to Employers?
·
Review and revise all paid sick leave
and/or PTO policies and procedures
to ensure they are compliant with the
new law.
·
Review and revise all offer letters and
contracts with employees to ensure
they are compliant with the new law.
·
Establish sick leave policies in
compliance with this new law if this
benefit hasn't been offered previously.
·
Monitor the Labor Commissioner's
website for updated template notices
to employees and workplace posters.
·
Ensure that timekeeping, payroll and
benefits systems properly calculate,
track and detail accrued and used
sick time.
·
Ensure that itemized wage statements
include the amount of paid sick leave
available to the employee.
·
If a third party payroll processor is
used, ensure that they are complying
with the new law's requirements.
·
Train HR and managerial employees
on requirements of the new law.
·
Ensure compliance with local laws
which may be applicable to your
places of business to ensure that
the greatest benefits are afforded to
affected workers.