An update on some of the issues California employers are facing with the new law. . .
In my last post, I wrote about some of the basic rules an employer with California employees needs to follow. Since then, I’ve been asked more questions, and wrestled with crafting plans, and attended a few conferences, and read more from California’s Division of Labor Standards Enforcement. . . Here’s some more information:
The start date really is July 1, 2015. The law says that an employee qualifies for paid sick leave if he or she works 30 days in California. Some commentators have stated that this means the rule doesn’t really “start” until those 30 days are up – July 31, 2015. The DLSE clarified that employees start to accrue on July 1, 2015 or their hire date, if later.
The law covers pretty much every employee in California (and thus every employer). If you have a collective bargaining agreement or provide home health services, you need to take a close look at the coverage rules – don’t assume you aren’t a part of this fun!
Employees can start using their paid sick leave after 90 days of employment. Depending upon what method you have elected to use, this could mean different things. If you are relying upon your PTO or sick leave program that already exists and satisfies the rule, don’t put that program on hold for 90 days, or some other “cost-saving” trickery. . .
If you have chosen the “three day grant” method, you must provide no less than 24 hours or three days of paid sick leave for an employee to use each year. The three days (or more, if the employer is more generous) must be available to the employee from the start of the grant year. For initial hires, however, the employee must still meet the 90 day employment requirement prior to taking any paid sick leave.
Another thing about the three day grant – three days must be granted as of July 1, 2015. There is no pro rata or other exception to the three days. And then, on January 1, 2016 you’ll need to grant three days again.
Temporary employees of a staffing agency are covered by the new law. Whoever is the employer or joint employer is required to provide paid sick leave to qualifying employees. Staffing companies and their clients need to address how this will be accomplished.
If you offer “no accrual” or “unlimited” time off, you still need to comply with the law. The employer must separately track sick leave accrual and use. Don’t worry, your employees won’t be confused if you explain it!
The DLSE clarified that where employees work an Alternative Workweek Schedule and the employer has elected the grant method, then the employee will have the days placed into in his or her bank. This means that an employee who works four ten-hour days must be granted three days (30 hours).
If you have an attendance policy that docks unexcused absences for counseling / discipline, etc., you need to take a close look at it and likely revise it. The new law prohibits an employer from disciplining an employee for using sick days accrued under the statute. If an employee properly used paid sick leave and is disciplined for taking an unexcused absence, he or she could raise a retaliation claim. This doesn’t mean your policy must be trashed, just revised.
Electronic paystubs that provide employees with notice of the amount of statutory paid sick leave (or PTO that can be used for statutory paid sick leave) appear to satisfy the rule that you provide the information on an itemized wage statement.
As always, if you have questions, please contact us!
California Employment Law Blog 