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Employees eligible forCalifornia’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.
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
Private-sector employers with 50 or more employees are covered by theCalifornia Family Rights Act(CFRA) and the federalFamily 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.
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:
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
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).
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:
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.
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 --...
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:
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.
Our article “Mandatory Paid Sick Leave For California Employees” (Mandatory article) describes theCalifornia’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.
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.
A strict set of new laws, effective January 1, 2016 , requires the registration and licensing of home health care providers through a newly created agency -- the Home Care Services Bureau (Bureau) – and the qualification and registration...
A strict set of new laws, effective January 1, 2016, requires the registration and licensing of home health care providers through a newly created agency -- the Home Care Services Bureau (Bureau) – and the qualification and registration of all of their in-home caregivers. The state is also directing providers that their caregivers (“home care aides”) must all be employees and not independent contractors.
While the required initiation of the licensing process on or before December 31, 2015 is fairly simple – and actual licensing will not be mandatory until July 1, 2016 -- the applicable operating standards will require many home care providers to profoundly change the way they do business.
Licensing Now Required to Promote and Operate as a Home Care Business: The 2013 Home Care Services Consumer Protection Act (HCSCPA) , AB 1217, created sections 1796.10- 1796.63 of the Health and Safety Code. The HCSCPA requires all California home care organizations (HCOs) to be licensed and also to have all of their caregivers – referred to in the law as “home care aides” (HCAs) – undergo successful background checks and register with the state.
The California Department of Social Services (CDSS) has created a new agency, the Home Care Services Bureau (Bureau), which will work with the Caregiver Background Check Bureau (CBCB) to implement and enforce the law.
The HCSPA defines “home care services” to include the typical services provided by caregivers, referred to as “personal attendants” under California’s Wage Order 15, in assisting persons who require companionship and help with functions of every-day life because of advanced age or physical or mental disability.
Section 1796.35 provides that any person or organization that fails to register and gain licensing as an HCO may not represent himself, herself or itself to be a home care organization by name, advertising, soliciting, or any “other” presentation to the public or in connection with providing home care services and also may not use “home care organization,” “home care,” or “in-home care” or any combination of such terms in its name.
New Statewide Registry of Qualified Caregivers (“Home Care Aides”): The Bureau will establish a registry that lists all applicants who have met the requirements to be registered. Registration requires: background examination , including submission of fingerprints, a declaration regarding prior criminal convictions, evidence that the home care aide can comply with the requirements of the law and is of “reputable and responsible character,” disclosure of any prior revocation or disciplinary action against the home care aide applicant, and a signed statement that the applicant has read and understood both the HCSCPA and other rules and regulations enacted under that statute.
The California Department of Justice will use fingerprints supplied by the applicant to conduct a background check. A person is ineligible to be listed on the registry if the person “has been convicted of a crime, other than a minor traffic infraction” without an exemption issued by the Director of the state Department of Social Services. If a person is notified that he/she is ineligible, the person may submit an exemption request to the Bureau so long as none of the crimes are ineligible for exemption.
All home care aides employed by HCOs are required to register. Individuals who are hired directly by patients to provide such services independently and not through an HCO have the option of applying personally for listing on the registry. However, they are not required to do so and may be hired directly by one or more private persons without registering.
Specific Registration and Licensing Requirements for Home Care Organizations: To receive a license, an HCO must provide proof of general and professional liability insurance at a minimum of $1 million per occurrence and $3 million in the aggregate, a valid workers’ compensation policy, and a complete list of its home care aides, along with proof that they have registered with the Bureau. In addition, individual owners of HCOs, and any person who owns more than 10 percent of an entity such as a corporation or LLC that runs an HCO will have to submit the same information as home care aides and consent to a background check.
Registration of HCOs and HCAs will expire every two years, requiring a new application for registration be made. The cost to put in an application for HCA registration is $25.00. For an HCO, the application fee is $5,165.00.
The statute also establishes operating requirements for an HCO once it is licensed: (1) posting its license so that it is visible to clients and home care aides; (2) maintaining its workers’ compensation policy; (3) maintaining an employee dishonesty bond, including third-party coverage, with minimum limits of $10,000; and (4) reporting any suspected or known adult abuser. The HCO must also have on file valid TB tests showing an absence of active TB for all HCAs taken within the time period of 90 days before to seven days after employment and fingerprints. It must notify the Bureau if the person is no longer employed by that HCO. The HCAs are required to have at least five hours of entry-level training prior to being with clients and five hours of annual training thereafter.
The HCSCPA provides for a fine of $900/day for any HCO that is in violation of the statute from the date the violation is verified to the date it is corrected or the license is suspended or revoked. It also makes it a misdemeanor to falsely represent oneself as a registered home care aide or applicant for such status. Violating this statute or willfully or repeatedly violating any of the rules or regulations under the statute is also a misdemeanor, subject to 180 days in the county jail and a $1,000 fine.
The state has issued an FAQ with answers to many questions concerning the HCSCPA. One of the FAQs states that HCAs hired by HCOs may not be independent contractors as “the statute requires the Home Care Organization to direct the actions of an Affiliated Home Care Aide with requirements such as TB testing, training, background check and registration.” This indicates that the Bureau will require all such HCAs hired by HCOs to be employees. This of course will require an HCO’s compliance with all wage laws, including such things as minimum wage and overtime.
Care Registration Procedure is Relatively Simple: By now, the reader is probably asking whether there is any good news for HCOs. The answer is yes. The only action required by December 31, 2015 is submission with the Bureau of a form HCS 200A, “Intent to Apply for a Home Care Organization License.” An HCO will then have until March 1, 2016 to file its formal (and simple) application (form HCS 200) and pay the fee. See Home Care Services website. An HCO can then continue operating even before its license is issued until July 1, 2015. If an HCO does not submit its Intent to Apply for a license by December 31, 2015, it may not continue operations. This would trigger the possibility of the $900/day fine and misdemeanor charges.
Thus, a caregiver business must promptly determine its course of action. If it intends to apply and meet all standards to obtain the required license by July 1, 2016, it must file the above-required notice of intention by December 31, 2015.
Our office can help company owners and managers better understand these fast-approaching changes in the law and a business’s options to deal with them. Contact Tim Bowles, Cindy Bamforth, or Helena Kobrin for more information.
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.
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.
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).
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’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.
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:
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.