Written By: Abe G. Salen
Beginning on July 1, 2015, California employers will be required to provide paid sick leave to most employees – including part-time and seasonal workers. AB 1522 (codified in California Labor Code sections 245-249 and 2810.5) was enacted to provide the following, as explained in the summary for the statute:
An employee who, on or after July 1, 2015, works in California for 30 or more days within a year from the commencement of employment is entitled to paid sick days for prescribed purposes, to be accrued at a rate of no less than one hour for every 30 hours worked. An employee would be entitled to use accrued sick days beginning on the 90th day of employment. The bill would authorize an employer to limit an employee’s use of paid sick days to 24 hours or 3 days in each year of employment. The bill would prohibit an employer from discriminating or retaliating against an employee who requests paid sick days.
Importantly, and unlike the Affordable Care Act, this California law will affect all employers including government entities, both state and municipalities.
An “employee,” as described above, includes any person who works for another in California for 30 or more days within a year from the commencement of employment.
There are certain exceptions as to who shall be considered as an “employee.” For instance, an “employee” does not include an employee covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of that employee and was entered into prior to January 1, 2015 or otherwise expressly waives the requirements of this article in clear and unambiguous terms. Also, a provider of in-home supportive services is not an employee.
Most employers – especially those in retail, fast-food, and other service-industry jobs – will be affected. The Labor Commissioner will be in charge of enforcing the terms of this new law. Penalties, including liquidated damages, could be assessed against an employer found in violation of the law. In addition, the prevailing party would be entitled to his/her legal fees and costs.
Interestingly, an employer will not be required to provide compensation to an employee for accrued, unused paid sick days upon termination, resignation, retirement, or other separation from employment. However, should the employer rehire an employee within one year from date of separation, any accrued unused sick leave would be reinstated.
What does this mean to California employers of seasonal and/or part-time employees?
Retail and fast-food entities commonly employ seasonal and part-time personnel to adequately compensate for longer daily work schedules. Both types of business tend to be open 7 days per week and up to 12 hours per day (or longer during the holiday season). These employers often utilize 4-10 shifts of employees, each working 8-10 hours/week over a period of 8-12 weeks or longer.
As a result, it will be interesting to see how holiday retail is affected in 2015. In particular, holiday hours usually begin in late September /early October and continue until just after New Year’s Day. In addition, seasonal employees often are rehired by the same employer each year, which can keep training costs to a minimum. As a result of this new law, it is unclear whether, and to what extent, these employers may be forced to consider alternatives in their hiring practices.
Employers of all types should keep this new law in sight as we enter 2015, as it includes various requirements that may cause inadvertent violations if not carefully reviewed and understood.