By Deborah H. Petito

On July 1, 2015, California’s new paid sick leave law became effective.  It applies to almost all employers and requires that employers provide at least three (3) days OR twenty-four (24) hours of paid sick leave.  In August of 2015, the Division of Labor Standards Enforcement (the California Labor Commissioner) issued an opinion stating that employers must offer 24 hours or 3 days of paid sick leave, whichever is greater, meaning an employee who normally works 10 hours in a day would be entitled to 30 hours of paid sick leave at a minimum.  Employers who implemented a policy frontloading twenty-four hours are now at risk of not being in compliance.

The trend to localize minimum wages has extended to paid sick leave benefits.  Six California cities – San Francisco, Oakland, Emeryville, Los Angeles, San Diego and Santa Monica – have implemented their own sick leave laws and they provide greater benefits than California law.  This article does not discuss all of the differences and employers are encouraged to contact their employment counsel to make sure that, in their specific circumstances, their policy(ies) are in compliance.

This fragmentation of paid sick leave rules and regulations  at the local level has made compliance more difficult for employers, particularly those with employees who work in multiple cities.  In Oakland, employers were required to comply by March 2, 2015.  In Emeryville the effective date was July 2, 2015; in Los Angeles and San Diego the effective dates were in July of 2016; and San Francisco and Santa Monica are effective in 2017.  It does not matter that the employer does not have a facility in the city.  The standard is whether the employer has employees who work in the city.  With the exception of San Francisco, employers must comply with the local paid sick leave laws if any employees work in those cities at least two hours in a week.  Employees who drive and deliver product, make sales calls or even those who work from home and live in one of these cities must receive the required paid sick leave benefits.

This creates several issues for employers beyond making sure that employees working in those cities are receiving the required sick leave benefits because the amounts of sick leave required and the rules surrounding how the employer provides the sick leave benefits are different.  It may be possible to give a certain class of employees, e.g. drivers, greater paid sick leave benefits because they work in these cities, but in some cases defining the group of employees who might be entitled to greater benefits may be difficult  and employers face a decision of having various policies or giving all employees greater paid sick leave benefits to avoid an administrative nightmare.

The major difference between the state and local laws is how an employer provides paid sick leave benefits.  Under California law, an employer may use the frontload method by providing all of the sick leave at the beginning of each year or use the accrual method, allowing employees to accrue sick leave at the rate of not less than one hour for every thirty hours worked.  If the employer uses the accrual method, they can cap sick leave at six day or 48 hours each year, which means an employee does not earn any additional sick leave until he or she has taken some sick leave.  Not all cities allow frontloading.  Each of the cities are consistent in allowing employers to use the accrual method and provide one hour of sick leave for each thirty hours that the employee works.  Two of the cities – San Diego and Oakland, do not provide a frontload method.  Logically, one would think that if an employer frontloaded the required sick leave, an employer would be in compliance, however, the Oakland City Attorney has opined that use of the frontload method “may risk” a violation of Oakland’s law.  Most employers chose the frontload method for administrative efficiency.  However, those employers will have to revise their policies if they have employees in cities that do not allow employers to use that frontload method.

There are also several other major differences between the requirements of these cities.  The use increments vary.  California law states an employer cannot require an employee to use sick leave in increments larger than 2 hours and two of the cities, while Oakland and San Francisco have reduced the increment to one hour.  Sick leave under California law and these local laws allows sick leave to be used for family members but the definition of family member differs and Oakland allows employees to use sick leave to care for a service dog.  Certain of the cities have different sick leave caps depending on the employer’s size.  The cities also each have their own posters/bulletins that must be posted.  While the California law does not have a provision allowing an employee to sue their employer for violation of the sick leave law, each of the cities allows an employee to do so and certain cities have penalties for violations.

As varying regulations are imposed by more and more local governmental entities, employers are severely challenged to stay abreast of the new laws, how they differ from state law and how to comply with them.

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 dpetito@clartktrev.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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