Employees eligible for California’s Paid Family Leave (PFL) benefits may receive up to six weeks of state-funded partial wage replacement for leaves of absence to care for a seriously ill family member or to bond with a newborn child.
All California employers are required to provide a PFL pamphlet to all new hires as well as those qualifying employees taking time out from work for baby-bonding or care-giving.

The PFL pamphlet describes the PFL program, outlines employee eligibility criteria, and explains how to apply for benefits.

In May, 2015, the California Employment Development Department (EDD) recently issued two mandatory changes to the pamphlet, including a new government mailing address where employees should submit paid family leave claims and new government phone numbers, including a new number for the hearing impaired. Employers may download the pamphlet as a pdf or purchase it from the California Chamber of Commerce.

For further information, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth, July 16, 2015

Employees eligible for California’s Paid Family Leave (PFL) benefits may receive up to six weeks of state-funded partial wage replacement for leaves of absence to care for a seriously ill family member or to bond with a newborn child.
All California employers are required to provide a PFL pamphlet to all new hires as well as those qualifying employees taking time out from work for baby-bonding or care-giving.

The PFL pamphlet describes the PFL program, outlines employee eligibility criteria, and explains how to apply for benefits.

In May, 2015, the California Employment Development Department (EDD) recently issued two mandatory changes to the pamphlet, including a new government mailing address where employees should submit paid family leave claims and new government phone numbers, including a new number for the hearing impaired. Employers may download the pamphlet as a pdf or purchase it from the California Chamber of Commerce.

For further information, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth, July 16, 2015

Effective July 1, 2015

All Covered Employers Must Update Policies, Procedures and Notices

Private-sector employers with 50 or more employees are covered by the California Family Rights Act (CFRA) and the federal Family and Medical Leave Act (FMLA). These state and federal laws enable a qualified worker to take an unpaid health-related leave of absence – for example, for his/her or a family member’s serious health condition, child birth or newborn care — with assurance of return to his/her job position.

The California Fair Employment and Housing Council has updated the CFRA regulations, effective July 1, 2015. The amended regulations align more closely with FMLA regulations. The changes include updates to the definitions of “covered employer” and “eligible employee.” The definition of “spouse” now includes same-sex marriage partners. The reinstatement provisions are now expanded along with greater clarity on an employer’s permissible justifications for declining to reinstate.

Some of the differences remaining between the state and federal acts are:

• The CFRA regulations caution against prying into the nature of the medical condition (under CFRA, employers may only contact a health care provider to authenticate a medical certification). Under FMLA, employers may contact the provider to clarify as well as authenticate the certification.

• In contrast with FMLA, the CFRA regulations only permit second medical opinions where leave is for the employee’s own serious health condition.

• Pregnancy disability is only covered as a serious health condition under FMLA, not the CFRA. California has a separate set of laws and regulations governing pregnancy disability leave.

Covered employers must post the revised CRFA Notice B from July 1, 2015 on. That updated poster can be purchased through the California Chamber of Commerce.

Leave administrators of covered employers should re-visit their leave policies and practices to ensure compliance with the new amendments, including correct handling of leave requests, extensions, and reinstatement.

For further information, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth, July 10, 2015

Effective July 1, 2015

All Covered Employers Must Update Policies, Procedures and Notices

Private-sector employers with 50 or more employees are covered by the California Family Rights Act (CFRA) and the federal Family and Medical Leave Act (FMLA). These state and federal laws enable a qualified worker to take an unpaid health-related leave of absence – for example, for his/her or a family member’s serious health condition, child birth or newborn care — with assurance of return to his/her job position.

The California Fair Employment and Housing Council has updated the CFRA regulations, effective July 1, 2015. The amended regulations align more closely with FMLA regulations. The changes include updates to the definitions of “covered employer” and “eligible employee.” The definition of “spouse” now includes same-sex marriage partners. The reinstatement provisions are now expanded along with greater clarity on an employer’s permissible justifications for declining to reinstate.

Some of the differences remaining between the state and federal acts are:

• The CFRA regulations caution against prying into the nature of the medical condition (under CFRA, employers may only contact a health care provider to authenticate a medical certification). Under FMLA, employers may contact the provider to clarify as well as authenticate the certification.

• In contrast with FMLA, the CFRA regulations only permit second medical opinions where leave is for the employee’s own serious health condition.

• Pregnancy disability is only covered as a serious health condition under FMLA, not the CFRA. California has a separate set of laws and regulations governing pregnancy disability leave.

Covered employers must post the revised CRFA Notice B from July 1, 2015 on. That updated poster can be purchased through the California Chamber of Commerce.

Leave administrators of covered employers should re-visit their leave policies and practices to ensure compliance with the new amendments, including correct handling of leave requests, extensions, and reinstatement.

For further information, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth, July 10, 2015

Proposed Amendments Aim to Modify the Healthy Workplaces, Healthy Families Act Prior to Its July 1, 2015 Effective Date

Our article “Mandatory Paid Sick Leave For California Employees” (Mandatory article) describes the California’s Healthy Workplaces, Healthy Families Act of 2014 (the Act) which on July 1, 2015 will require all California employers — regardless of size (and except for those with collective bargaining agreements and other very limited exemptions) — to provide paid sick leave to any temporary, part-time or full-time employee who meets some basic eligibility requirements.

As the Mandatory article also summarizes, such employers must, by required written policy, announce their choice of one or more of several methods to calculate the benefit for each employee, including the “advance” method and the “accrual rate” method. Under the accrual method, the Act directs that an eligible worker will earn sick pay benefit at a minimum rate of one paid hour for every 30 hours worked (starting July 1 or the date of hiring, whichever comes later). The Act also directs that an eligible employee may begin to use accrued paid sick days beginning on the 90th day of employment after July 1, or the date of hiring, whichever comes later. Among the many other details in the Act, employers may (but do not have to) cap the annual usage, provided the limit is at least three days or 24 hours paid time. Employers must also notify each employee in writing of his or her available paid sick leave benefit with each wage payment.

As we relayed in the subsequent blog Shall the Fog Be Forever Forsaken? California Labor Commissioner Again Attempts to Resolve Questions on New Paid Sick Leave Benefits Law, the language of the Act is in many places ambiguous, requiring the state’s Division of Labor Standards Enforcement (Division) to attempt clarifications by publishing and then in February, 2015 extending FAQs (Frequently Asked (answered) Questions) on the Division website.

Meanwhile, and also to clear-up persisting questions and confusions, the Act’s author, Assembly Member Lorena Gonzales of San Diego, introduced clean-up legislation on February 12, 2015 (Assembly Bill [AB] 304) which proposes

1. Clarification of Eligible Employees (Labor Code 246(a)): Currently, an employee who, on or after July 1, 2015, works in California for 30 or more days within a year from the commencement of his or her employment becomes eligible for paid sick days. AB 304 would clarify that the employee must work in California for the same employer for 30 or more days within the previous 12 months.

2. Excluded Employees (Labor Code 245.5(a)): AB 304 would exclude two additional groups of workers from the definition of “employee” under the Act: (a) a retired annuitant [a person receiving an annuity or pension] of a public entity and (b) a worker covered by the federal Railroad Unemployment Insurance Act.

3. Additional Accrual Options (Labor Code 246(e)): Currently the Act requires an employer using the accrual method to provide a minimum of one hour of paid sick leave for every 30 hours worked. AB 304 would authorize other methods of accrual provided that the accrual occurs regularly and the employee will have at least 24 hours of accrued sick leave available by the 120th calendar day of employment.

4. Tracking Unlimited Sick Leave (Labor Code 246(h)): AB 304 would clarify that an employer who provides unlimited sick leave to its employees (no maximum cap) could meet its notice requirements by indicating “unlimited” [sick leave] on the employee’s itemized wage statement.

5. Simplified Hourly Rate Calculations (Labor Code 246(k)): Currently, if the employee “in the 90 days of employment before taking accrued sick leave had different hourly pay rates, was paid by commission or piece rate, or was a nonexempt salaried employee,” then the employee’s total wages (excluding overtime premium pay) must be divided by “the total hours worked in the full pay periods of the prior 90 days of employment” to calculate the hourly rate of paid sick leave. AB 304 would amend this: “The rate of pay shall be the employee’s hourly wage. If the employee receives different hourly rates in the pay period when the accrued paid sick leave is taken, then the rate of pay shall be calculated in the same manner as the regular rate of pay for purposes of overtime.”

6. Reinstatement (Labor Code 246(f)): The Act currently requires an employer to reinstate “previously accrued and unused paid sick days” for any employee rehired within one year from the separation date. AB 304 would clarify that this requirement does not pertain to such employees who received payment at the time of separation for their accrued and unused paid sick days.

7. No Private Right of Action (Labor Code 248.5(e)): AB 304 would remove the term “any person” regarding the Act’s enforcement provisions, presumably to clarify that no private right of action exists.

Ms. Gonzalez has also introduced new legislation (AB 11) to require providers of “in-home supportive services” (as defined under the Welfare and Institutions Code) to qualify for the Act’s mandatory paid sick leave benefit. Such providers are currently exempt.

We will continue to update the progress of each of these the bills and any modifications of the Act. For additional assistance understanding and implementing the Healthy Workplaces, Healthy Families Act, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

Proposed Amendments Aim to Modify the Healthy Workplaces, Healthy Families Act Prior to Its July 1, 2015 Effective Date

Our article “Mandatory Paid Sick Leave For California Employees” (Mandatory article) describes the California’s Healthy Workplaces, Healthy Families Act of 2014 (the Act) which on July 1, 2015 will require all California employers — regardless of size (and except for those with collective bargaining agreements and other very limited exemptions) — to provide paid sick leave to any temporary, part-time or full-time employee who meets some basic eligibility requirements.

As the Mandatory article also summarizes, such employers must, by required written policy, announce their choice of one or more of several methods to calculate the benefit for each employee, including the “advance” method and the “accrual rate” method. Under the accrual method, the Act directs that an eligible worker will earn sick pay benefit at a minimum rate of one paid hour for every 30 hours worked (starting July 1 or the date of hiring, whichever comes later). The Act also directs that an eligible employee may begin to use accrued paid sick days beginning on the 90th day of employment after July 1, or the date of hiring, whichever comes later. Among the many other details in the Act, employers may (but do not have to) cap the annual usage, provided the limit is at least three days or 24 hours paid time. Employers must also notify each employee in writing of his or her available paid sick leave benefit with each wage payment.

As we relayed in the subsequent blog Shall the Fog Be Forever Forsaken? California Labor Commissioner Again Attempts to Resolve Questions on New Paid Sick Leave Benefits Law, the language of the Act is in many places ambiguous, requiring the state’s Division of Labor Standards Enforcement (Division) to attempt clarifications by publishing and then in February, 2015 extending FAQs (Frequently Asked (answered) Questions) on the Division website.

Meanwhile, and also to clear-up persisting questions and confusions, the Act’s author, Assembly Member Lorena Gonzales of San Diego, introduced clean-up legislation on February 12, 2015 (Assembly Bill [AB] 304) which proposes

1. Clarification of Eligible Employees (Labor Code 246(a)): Currently, an employee who, on or after July 1, 2015, works in California for 30 or more days within a year from the commencement of his or her employment becomes eligible for paid sick days. AB 304 would clarify that the employee must work in California for the same employer for 30 or more days within the previous 12 months.

2. Excluded Employees (Labor Code 245.5(a)): AB 304 would exclude two additional groups of workers from the definition of “employee” under the Act: (a) a retired annuitant [a person receiving an annuity or pension] of a public entity and (b) a worker covered by the federal Railroad Unemployment Insurance Act.

3. Additional Accrual Options (Labor Code 246(e)): Currently the Act requires an employer using the accrual method to provide a minimum of one hour of paid sick leave for every 30 hours worked. AB 304 would authorize other methods of accrual provided that the accrual occurs regularly and the employee will have at least 24 hours of accrued sick leave available by the 120th calendar day of employment.

4. Tracking Unlimited Sick Leave (Labor Code 246(h)): AB 304 would clarify that an employer who provides unlimited sick leave to its employees (no maximum cap) could meet its notice requirements by indicating “unlimited” [sick leave] on the employee’s itemized wage statement.

5. Simplified Hourly Rate Calculations (Labor Code 246(k)): Currently, if the employee “in the 90 days of employment before taking accrued sick leave had different hourly pay rates, was paid by commission or piece rate, or was a nonexempt salaried employee,” then the employee’s total wages (excluding overtime premium pay) must be divided by “the total hours worked in the full pay periods of the prior 90 days of employment” to calculate the hourly rate of paid sick leave. AB 304 would amend this: “The rate of pay shall be the employee’s hourly wage. If the employee receives different hourly rates in the pay period when the accrued paid sick leave is taken, then the rate of pay shall be calculated in the same manner as the regular rate of pay for purposes of overtime.”

6. Reinstatement (Labor Code 246(f)): The Act currently requires an employer to reinstate “previously accrued and unused paid sick days” for any employee rehired within one year from the separation date. AB 304 would clarify that this requirement does not pertain to such employees who received payment at the time of separation for their accrued and unused paid sick days.

7. No Private Right of Action (Labor Code 248.5(e)): AB 304 would remove the term “any person” regarding the Act’s enforcement provisions, presumably to clarify that no private right of action exists.

Ms. Gonzalez has also introduced new legislation (AB 11) to require providers of “in-home supportive services” (as defined under the Welfare and Institutions Code) to qualify for the Act’s mandatory paid sick leave benefit. Such providers are currently exempt.

We will continue to update the progress of each of these the bills and any modifications of the Act. For additional assistance understanding and implementing the Healthy Workplaces, Healthy Families Act, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

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

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

California Legislature Still Tinkering With Paid Sick Leave Law Prior to July 1, 2015 Effective Date

California’s Healthy Workplaces, Healthy Families Act of 2014 (the Act) will require almost all California employers regardless of size to provide paid sick leave to its workers starting July 1, 2015. See, “Mandatory Paid Sick Leave For California Employees” (Mandatory article).

As this new law fails to provide guidance in several important areas, even the Division of Labor Standards Enforcement (DLSE) has attempted to clarify employer requirements in a series of internet postings. See, Shall the Fog Be Forever Forsaken? California Labor Commissioner Again Attempts to Resolve Questions on New Paid Sick Leave Benefits Law.

Meanwhile, through Assembly Bill 304 (AB 304), the California Legislature has been working for several months to plug as many of the holes in the Act as possible. See, California Sick Leave “Clean-up” Legislation Introduced (Clean Up Article). Yet at this writing, less than two weeks before the July 1, 2015 activation date, Sacramento lawmakers are still changing AB 304, most recently on June 18. The bill has now been designated an “urgency” statute which allows changes to the Act up to the very last minute.

Revisions under consideration include:

● Expansion of Accrual Method Guidelines: A major feature of the Act is the set of methods an employer is permitted to calculate paid sick leave benefits, including the “advance” method and the “accrual rate” method. See, Mandatory article. In its current form, AB 304 would allow an employer which was using its own accrual method for paid sick days prior to January 1, 2015 to continue that method after July 1, provided it meets certain minimum standards. Those minimums are complex and require close study.

● Clarified Sick Pay Rate Calculations: The Act currently does not supply clear guidance on how sick pay rates are calculated when a worker has been receiving differing rates of compensation, including, for example, combinations of hourly pay, commissions and/or bonuses. AB 304 in its current form would permit the option of an averaging calculation to reach the sick pay rate.

● Delayed Application of the Law in Certain Industries: If passed into law as now drafted, AB 304 would not require employers in the broadcasting and motion picture industries (covered by Industrial Welfare Commission Wage Orders 11 and 12) to comply with the Act until January 21, 2016.

● Employee Rights to Legal Action: Our Clean Up Article reported an earlier version of AB 304 had taken away the rights of employees to sue companies directly for violations of the Act. AB 304 no longer carries that possible change to the Act. Thus, if this bill passes into law in its current form, workers will still have the right to bring legal action directly for paid sick leave violations.

Please stay tuned. We continue to monitor possible changes to the Act. For additional assistance understanding and implementing this new law, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin, June 19, 2015