By Deborah Petito

Just when employers thought they had finalized their paid sick leave policies to conform to state law, a number of local communities (e.g., San Francisco, San Jose and Santa Monica) have passed their own sick leave laws which require more than three days of sick leave. The City of Los Angeles joined ranks and passed their own ordinance on June 1, 2016 (“City Ordinance”).  The effective date of the new sick leave (and minimum wage) ordinance is July 1, 2016, so the City of Los Angeles did not give employers much time to revise their policies to comply with the new sick leave requirements.  However, the City is allowing employers with less than 25 employees until July 1, 2017 to come into compliance.  The size of the employer’s workforce is determined by the average number of employees employed in the previous calendar year.  In addition, certain non-profit employers will be able to qualify for a deferral rate if they meet certain conditions.  The difficulty with complying with this City Ordinance, as detailed below, is that the City Ordinance can reach employers outside the City.

Sick Leave Frontloading and Carryover is Higher than State Law.

The City Ordinance requires that employers provide employees who work in the City of Los Angeles (even if the employer is not located in the City of Los Angeles) sick leave either by (1) providing at least forty-eight (48) hours of sick leave at the beginning of each calendar year, each year of employment, or selected twelve month period (frontload method); OR, by (2) allowing employees to accrue sick leave at the rate of one hour for every thirty hours worked with a cap of not less than 72 hours (accrual method).  This is an enhanced benefit when compared with the California sick leave law which requires only 24 hours to be frontloaded and allows an employer who uses the accrual method to cap the accrual at 6 days or 48 hours.

The Family Circle Has Widened.

The City Ordinance widens the family circle allowing employees to use sick leave for those individuals specified in the California sick leave law and to take care of “any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.”  The employer will be hard pressed not to accept the employee’s representation of individuals falling into these categories.

Employers Can Ask for Written Documentation

The City Ordinance also differs from the California sick leave law because it specifies that an employer may ask for reasonable documentation of an absence from work while the California sick leave law is silent on whether documentation can be requested, leading some to advise employers not to ask for documentation.

Employees Who Work For Employers Not Located Within The City Can Be Covered.

The most far reaching aspect of this City Ordinance is that it applies to any employee who performs at least two hours of work for any employer within the geographic boundaries of the City.  The definition of employer is not limited to an entity doing business in the City so all employers in Southern California can be affected, particularly those who employ sales or delivery employees who spend at least two hours a week in the City of Los Angeles.  In addition, the City Ordinance provides for individual liability because it defines “employer” to include “a corporate officer or executive, who directly or indirectly or through an agent or any other person, including through the services of a temporary service or staffing agency or similar entity, employs or exercises control over the wages, hours or working conditions” of employees.

Enforcement and Rule-Making Will Be Local.

The Office of Wage Standards of the Bureau of Contract Administration is the City agency designated to enforce and administer the City Ordinance. This agency is charged with promulgating guidelines and rules employers can rely upon and which will have the “force and effect” of law.  Hopefully, these new guidelines and rules will be promulgated in the near future to provide specific guidance to employers.  This is especially important because the City Ordinance is not clear on whether or not employees can carryover sick leave that has been frontloaded.

Action Needed

At this point, employers who have employees who work in the City of Los Angeles should revise their sick leave policies to provide the enhanced sick leave benefits.

Thank you for joining us on CIarkTalk! We look forward to seeing you again on this forum.  Please note that views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog.  If you have any questions about the new Los Angeles City Ordinance or sick leave in California, please feel free to contact Deborah Petito at mailto:dpetito@clarktrev.com or Leonard Brazil at lbrazil@clarktrev.com by email at or telephonically by calling the author at (213)629-5700.

 

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