Employers Must Not Act Against Workers Seeking Benefits From California’s New Paid Sick Leave Law

Starting July 1, 2015, California’s Healthy Workplaces, Healthy Families Act of 2014 (the Act) will require nearly all of this state’s employers to provide paid sick leave to their workers. The Act carries strict prohibitions on retaliation against workers who attempt to use the sick pay to which they are entitled or who report an employer’s claimed violations of the Act to the state Labor Commissioner or Division of Labor Standards Enforcement (the Division).

Retaliation is a hot topic, seemingly a part of nearly every lawsuit brought in the California courts against employers over alleged unfair or improper treatment. As in our article Discrimination and Retaliation Claims, illegal retaliation is an employment decision – for example, lowering pay, demotion, termination – made in response to a worker’s sincere complaint over an allegedly improper workplace practice, including, for example, a safety, health, or discrimination issue.

New Labor Code 246.5, part of the Act, provides that employers may not stop any employee from using sick days nor “discharge, threaten to discharge, demote, suspend, or in any manner discriminate against an employee” because the employee used or attempted to use paid sick leave, opposed any policies that violate the Act, or reported the employer to the Labor Commissioner or Division for violations of the sick leave law.

Section 246.5 places an unusual burden on employers, directing that retaliation is presumed if a business takes disciplinary action against an employee within 30 days of that person: (a) making such a complaint to the Labor Commissioner or Division; (b) cooperating with an investigation of the employer for alleged violation of the Act; or (c) opposing any policy prohibited by the Act. While the employer may then show other, legitimate reasons for the discipline that would absolve the company from penalties, this 30 day provision requires the employer to start on the wrong foot. Unless it steps up and proves otherwise, the company is in essence guilty of retaliation by time proximity alone.

Prevention of such retaliation claims begins with educating management and workers alike of the Act’s provisions through written policy and other required notices informing employees of their paid sick leave rights. See, our article July 1, 2015 Deadline Is Approaching. If you have any questions about the Act, please contact one of our attorneys Tim Bowles, Cindy Bamforth, and Helena Kobrin.

Helena Kobrin, June 24, 2015