UPDATED WAGE THEFT PROTECTION ACT NOTICE PUBLISHED
Since 2011, California employers have been required to provide their employees with the Wage Theft Protection Act Notice, which provides specific information about the employees’ wages and paid sick leave entitlements. (Cal. Labor Code section 2810.5).
The notice must be provided to nonexempt employees at the time of hire and within seven days of any change to the information contained on the form. In addition, the notice must be provided to employees in the language the employer normally uses to communicate employment-related information to the employee.
The Labor Commissioner’s office had published a form for use by California employers. The form has recently been revised to address two recently passed pieces of legislation which expand and modify the information to be contained on the notice.
New Requirements for Employers Effective Jan. 1, 2024
Specifically, as we have previously reported, SB 616 increases the amount of paid sick leave employers are required to provide. AB 636 requires an employer to include in the notice information regarding the existence of a federal or state disaster declaration applicable to the county or counties in which the employee will be employed and that was issued within 30 days before the employee’s first day of employment. These revisions to California law take effect January 1, 2024.
The Labor Commissioner has published an updated Notice to Employee template that specifies the new required amount of paid sick leave as well as a section for employers to provide notice of disaster declarations, as needed.
Currently, only an English-language version of the notice is available. Employers can go to the Labor Commissioner’s Wage Theft Protection Act page to check for updates to other versions of the template which should be available soon.
LABOR COMMISSIONER PUBLISHES NEW PSL FAQ’S
As we have reported previously, as of January 1, 2024, California’s paid sick leave law has been amended requiring employers generally provide 5 days or 40 hours of paid sick leave to their employees.
The Labor Commissioner has updated the paid sick leave poster. All employers should display the new poster in their offices in a conspicuous place easily available to employees, and also should provide an electronic copy to any employee that is working remotely.
This Labor Commissioner has updated its FAQ which contains answers to questions that are frequently asked about California’s Paid Sick Leave law.
Below are excerpts of some of the Q&A’s that have caused confusion for employers in preparation of implementing the new law. Employers should review the FAQs to assist in implementing the changes to the paid sick leave laws and coordinating the California PSL with any local PSL ordinances such as Los Angeles.
2. What does 40 hours or five days mean?
Starting on January 1, 2024, an employer must allow an employee to use at least five days or 40 hours, whichever is more (refer to DLSE Opinion Letter 2015.08.07).
Therefore, for example, if an employee works 10‑hour days, the employee will be entitled to use at a minimum 50 hours of paid sick leave.
Alternatively, if an employee works only 6 hours a day and takes five days of paid sick leave, for a total of 30 hours, the employee will still have 10 hours remaining.
These examples assume the employee has earned or received upfront their full amount of leave.
3. What if a local ordinance requires an employer to provide more paid sick leave than state law?
The employer must provide the paid sick leave required by the local ordinance if it is higher than the requirements of state law. (E.g., Los Angeles requires 6 days or 48 hours).
In general, if employees are subject to local sick leave ordinances, the employer must comply with both the local and California laws, which may differ in some respects. The employer must provide the provision or benefit that is most generous to the employee. (E.g. Los Angeles requires a carry-over of 72 hours; California now requires a carry-over of 80 hours)
The only exception to this general rule is that as of January 1, 2024, local ordinances cannot contradict the state paid sick leave law requirements regarding the lending of paid sick leave, paystub statements, calculation of paid sick leave, providing notice if the leave is foreseeable, timing of payment of paid sick leave, and whether payment of sick leave is required upon termination. If a local ordinance contradicts the state law on these specific topics, the state law prevails over (preempts) the local law.
15. If an employer uses an accrual method and capped an employee’s yearly use of leave at 3 days or 24 hours, what must an employer do to comply with the law on January 1, 2024?
If an employer uses an annual start date other than January 1 and implements a 12‑month use cap, that cap must change to 40 hours or 5 days on January 1, 2024. For example, if an employer uses the 12-month period of May 1 – April 30 and implements a cap and an employee used 24 hours or three days before January 1, 2024, the employer must allow the employee to use an additional 2 days or 16 hours before April 30 if the employee has accrued that additional leave.
16. If an employer utilized the “up-front” method prior to January 1, 2024 and provided an employee with 3 days or 24 hours of leave on the employee’s anniversary date during the year, what must an employer do to comply with the law on January 1, 2024?
The employer has the choice to frontload the two additional days on January 1, 2024 or move the measurement of the yearly period to January 1, 2024 and frontload five days. For example, if an employee started on May 1, 2021 and the employer used that anniversary date to frontload 3 days or 24 hours on May 1, 2023, the employer may either provide 2 days or 16 hours on January 1, 2024 and keep the May 1 date to frontload or can “reset” the frontload date to January 1, 2024 and provide the employee 5 days or 40 hours then.
17. Under the accrual method, can I carry over unused sick leave from one year to the next?
Yes, but an employer may limit or cap the overall amount of sick leave an employee may accrue to 10 days or 80 hours, whichever is more.
24. Do I have to notify my employer before taking sick leave?
The employee must notify the employer in advance if the sick leave is planned, as may be the case with scheduled doctors’ visits. If the need is unforeseeable, the employee need only give notice as soon as practical, as may occur in the case of unanticipated illness or a medical emergency.
25. Can an employer require certification from a health care provider before allowing an employee to take paid sick leave when the request is for a qualifying reason?
Generally, no. An employer may not deny an employee paid sick leave based solely on a lack of certification from a health care provider. An employee is entitled to take paid sick leave immediately upon the covered employee’s oral or written request. The leave is not conditioned on medical certification.
Although an employer cannot deny paid sick leave solely for lack of a medical certification, it may be reasonable in certain circumstances to ask for documentation before paying the sick leave when the employer has information indicating that the employee is not requesting paid sick leave for a valid purpose. In any such instance, the reasonableness of the parties’ actions will inform the outcome of the claim.
26. If an employee has a three‑hour medical appointment, can the employer require the employee to take an entire day of paid sick leave?
No. An employee may determine how much paid sick leave they need to use.
An employer can set a reasonable minimum amount of hours for each time an employee takes paid sick leave, not to exceed two hours.
27. Can my employer discipline me for taking a paid sick day or for using paid sick leave for part of a day to go to a doctor’s appointment?
In general, no, an employer may not discipline an employee for using accrued paid sick leave. Depending on the circumstances, however, the issue may be more complex and may require more analysis.
This means, in general terms, that if an employee has accrued sick days available, an employer may not deny the employee the right to use those accrued paid sick days, including the right to use paid sick leave for a partial day (e.g., to attend a doctor’s appointment), and may not discipline the employee for doing so.
Many employers have attendance policies under which employees may be given an “occurrence” or similar adverse personnel action (which is a form of discipline with potentially negative repercussions) if the employee has an unscheduled absence or provides insufficient notice of an absence. Under the terms of the paid sick leave law (and Labor Code sections 233 and 234), if an employee has accrued and available sick leave, and is using his or her accrued paid sick leave for a purpose as specified in the law, it is not permissible for an employer to give the employee an “occurrence” for the absence under such an attendance policy because this would constitute a form of discipline against an employee for using his or her paid sick leave as allowed under the paid sick leave law.
If an employee does not have any accrued or available paid sick leave, however, (e.g., if the employee has already used all of his or her accrued and available paid sick leave under the employer’s policy, including as consistent with Labor Code section 233), and if the employee has an unscheduled absence that would otherwise violate the employer’s attendance policy, the paid sick leave law does not prohibit the employer from giving the employee an “occurrence” for such absence, even if the employee was actually sick and/or could have used paid sick leave for the absence if he or she had any such leave accrued.
The paid sick leave law does not “protect” all time off taken by an employee for illness or related purposes; it “protects” only an employee’s accrued and available paid sick leave as specified in the statute.
Similarly, if an employee has an absence that would otherwise violate the employer’s attendance policy, and if the absence was for a reason not covered under the paid sick leave law, the employer is not required to allow the employee to use paid sick leave for that absence, and it is not a violation of the law for the employer to give an “occurrence” for such absence. The paid sick leave law provides that an employer shall provide paid sick days for the following purposes:
(1) Diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member.
(2) For an employee who is a victim of domestic violence, sexual assault, or stalking, the purposes described in subdivision (c) of Section 230 and subdivision (a) of Section 230.1.
(Lab. Code § 246.5, subd. (a).) An employer is not required to allow an employee to use accrued paid sick days for reasons other than those listed in the statute (as quoted above).
In addition, if an employee has an unscheduled absence that would otherwise result in an “occurrence” under an employer’s attendance policy, and if the employee chooses to use accrued paid sick leave for only part of the unscheduled absence (for example, if the employee is absent for a full eight-hour day of work, but elects to use only four hours of his or her accrued paid sick leave for the absence [which the employee is allowed to do], the employer would be allowed to give an “occurrence” (or 1/2 of an “occurrence”) for the one-half day of unscheduled absence for which no paid sick leave was used.
Only time that is properly taken as accrued paid sick leave is protected from disciplinary action. The same would be true if the employee had a full eight-hour unscheduled absence, but only had available four hours of accrued paid sick leave. The portion of the unscheduled absence not covered by accrued paid sick leave could be subject to disciplinary action under the employer’s attendance policy.
This Newsletter is intended as a brief summary of employment law. While every effort has been made to ensure the accuracy of the information contained herein, it is not intended to serve as “legal advice,” or to establish an attorney-client relationship. If additional information is needed on any of the topics contained herein, please contact our office. All rights reserved. ©2023.