ALERT – Emergency legislation signed into law on July 13th amends the new paid sick leave law

A summary of the new amendment is as follows:

  • The definition of “employee” no longer includes employees of public entities who are getting a retirement allowance and are “employed without reinstatement into [their] respective retirement system[s].”
  • An employee is required to work for the “same employer” for 30 or more days within a year from the commencement of employment in order to qualify for sick leave.
  • An employer may use a different accrual method than the “one hour for every 30 hours worked” requirement, so long as the accrual is on a regular basis so that an employee accrues no less than 24 hours of sick leave or paid time off by the 120th calendar day of employment, or each calendar year, or in each 12-month period. Alternatively, an employer may satisfy the accrual requirement by providing no less than 24 hours or three days of paid sick leave that is available to the employee to use by the completion of his or her 120th calendar day of employment.
  • An employer is not required to reinstate accrued paid time off to an employee rehired by the employer within one year of separation from employment where the employee was previously paid out unused paid time off at the time of termination, resignation, or separation.
  • Employers in the broadcasting and motion picture industries are allowed to delay compliance with the new sick leave notice requirement until January 21, 2016.
  • The provision of the Paid Sick Leave Law that provides that employers who already have sick leave/PTO policies in effect need not provide any additional paid sick leave under AB 1522 if their current polices make paid sick leave available for the same purposes and conditions as AB 1522.  Section 246(e) provides two options for compliance.  AB 304 revised the second option to now include a “grandfather clause” for existing paid sick leave/PTO policies provided to a class of employees that were in effect prior to January 1, 2015.  Such grandfathered policies can continue for both current and new employees in the class covered by such policies where their accrual method is different than one hour per 30 hours worked and instead provides at least one day or eight hours of paid sick leave/PTO within three months of employment and the employee was eligible to earn at least three days or 24 hours of paid sick leave/PTO within nine months of employment.  Any changes to a grandfathered paid sick leave/PTO policy that lowers employee accruals will lose the grandfathered status.
  • If unlimited sick leave or paid time off is provided by an employer, an employer can satisfy the requirement to give notice of sick leave to employees by marking “unlimited” on the notice form or on the employee’s itemized wage statement.
  • The amendment dispenses with the 90-day look back method for calculating sick leave pay and permits an employer to calculate pay for sick leave by the following methods:
    • For nonexempt employees, in the same manner as the regular rate of pay for the workweek in which the employee uses paid sick time, whether or not the employee actually works overtime in that workweek, or by dividing a nonexempt employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment; and
    • For exempt employees, in the same manner as the employer calculates wages for other forms of paid leave time (i.e., vacation).
  • An employer no longer has an duty to inquire into the purposes of why an employee took paid time off nor any duty to record these reasons.
  • Employees no longer need to be performing “onsite” construction work to fall under the exception under section 245.5(2). Offsite construction work presumably now applies for this exception.

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

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