By Deborah H. Petito

Effective September 2, 2016, Employers Who Have Employees Working in San Diego Can Front Load and Cap Paid Sick Leave

There are now six cities with paid sick leave laws. San Diego’s paid sick leave law was effective on July 11, 2016, however, the law as adopted by the voters in June left a lot of unanswered questions.  On August 3, 2016, the City Council approved an implementing ordinance that answers most of those questions.  The main question that employers had was whether or not accrued paid sick leave could be capped.  Under the original ordinance, there was no cap which meant that employees could accrue unlimited paid sick leave.  The implementing ordinance allows a cap of not less than 80 hours.  This means that once an employee subject to an 80 hour cap accrues 80 hours of paid sick leave, the employee cannot accrue any additional paid sick leave until the employee uses some paid sick leave.

The other question answered was whether employers could front load the 40 hours of paid sick leave required by the original ordinance. The answer is yes.  If front loaded, employers do not have to impose a cap because they may prohibit carryover of sick leave.  However, the 40 hours must be front loaded regardless of the employee’s status as full-time, part-time or temporary.  Employers who use the accrual method (not less than 1 hour for every 30 hours worked) must be permitted to carryover unused sick leave.

The original ordinance allows employees to cap sick leave usage at 40 hours of paid sick leave each year. That was left unchanged in the implementing ordinance.

Differences With Other California City Paid Sick Leave Laws

The San Diego 80 hour cap is higher than any other city in California. Four of the cities have a 72 hour cap for large employers.  Los Angeles and San Diego do not differentiate between large and small employers.  Some of the provisions are consistent, such as an employee is only entitled to paid sick leave if they work a minimum of 2 hours in the city per week and employees cannot use their paid sick leave until they have been employed for 90 days.  The challenge is for an employer who has employees working in more than one city with a paid sick leave law.  Such employers must decide whether to have separate policies or one policy that gives all employees the greatest benefits.  Each of the cities have separate posting requirements and they all have a required poster.  If employers have employees working remotely, how do they comply with the posting requirements?

Enforcement Provisions Added

The San Diego implementing ordinance also provides some teeth to ensure enforcement and compliance. The implementing ordinance establishes an Enforcement Office in the City which will eventually issue regulations.  However, employees are not required to complain to the City’s Enforcement Office and are allowed to sue their employers and to obtain attorney’s fees if they are successful.  The statute of limitations under the implementing ordinance is 2 years.

Under the implementing ordinance, any adverse action against an employee within 90 calendar days of the employee exercising their rights provided under the ordinance creates a rebuttable presumption that the employer retaliated. This puts the burden on the employer to prove that their actions were not retaliatory.

There are also penalties for employers who violate the law. Some of these penalties include:

  1. Liquidated damages up to $1,000 for a violation not resulting in termination;
  2. Liquidated damages up to $3,000 for a violation resulting in termination;
  3. Civil penalties of not more than $1,000 for each day that the employer fails to provide paid sick leave; and
  4. Penalties for failing to provide notice and posting.

If an employer ceases business operations, sells its business or transfers its interest any successor becomes liable for unpaid damages and penalties.

Steps for Employers

  1. Determine whether you have employees in any of the six California cities with paid sick leave laws.
  2. Make sure your paid sick leave policy complies with the paid sick leave laws that apply to you and make necessary revisions.
  3. Notify employees and post the appropriate notices.
  4. Monitor local ordinances.
  5. Monitor local governing boards and entities to ensure you are aware of new paid sick leave laws or changes to existing paid sick leave laws.

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 San Diego implementing ordinance or sick leave in California, please feel free to contact Deborah Petito by email at dpetito@clartktrev.com or Leonard Brazil at lbrazil@clarktrev.com or telephonically by calling the author at (213) 341-1359.

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