The July 1 deadline for employers to begin providing paid sick leave benefits under California’s new mandatory paid sick leave law (the Healthy Workplaces, Healthy Families Act of 2014) is fast approaching. Employers need to familiarize themselves with the posting, notice and record-keeping requirements contained in the paid sick leave mandate to prepare themselves to meet the obligations created by the new law.
Employers must post a required paid sick leave poster, created by the Labor Commissioner:
- The poster advises employees of sick leave rights.
- The poster needs to be posted in a conspicuous location.
- Willful failure to post can result in a penalty of one hundred dollars ($100) for each offense.
- The requirement to put up the poster took effect on January 1, 2015.
The California Chamber of Commerce 2015 California and Federal Employment Notices Posterand 2015 Required Notices Kit (with all-in-one poster) contain the new paid sick leave poster prepared by the California Labor Commissioner.
Notice to Employees
Employers also need to provide written notice of paid sick leave information to all new hires and existing employees. The Wage and Employment Notice to Employees (Labor Code section 2810.5), which employers have been required to provide to nonexempt employees since 2012, was updated by the Labor Commissioner to contain information about an employee’s right to accrue and use paid sick leave and about employee protections under the mandate. This form, often referred to as the “wage theft notice,” is available on the Labor Commissioner’s website and is also available in both English and Spanish on HRCalifornia. This notice requirement went into effect on January 1.
For any new employees hired after January 1, 2015, you should provide them with the updated version of the Wage and Employment Notice to Employees (Labor Code section 2810.5) at the time of hire.
You also have to provide information about the new paid sick leave law to employees hired before January 1, 2015. We know. It’s confusing. But you have to do this because under state law, when information in the wage theft notice changes, existing employees must receive a new notice within seven days of any change. Therefore, you must individually notify employees hired prior to January 1, 2015, of the changes that relate to paid sick leave. When and how you actually provide that information to existing employees may vary. The Labor Commissioner addresses these issues in this Frequently Asked Questions webpage.
- Employees hired before January 1, 2015, must be notified of any change relating to the new paid sick leave law between the period from January 1, 2015, to July 8, 2015. Since the law’s operative date for providing the benefit is July 1, July 8 is the “final date” for “providing notice of changes relating to paid sick leave to an employee hired before January 1, 2015” (July 1 operative date + 7 days = July 8).
- If you have an existing paid sick leave policy in place and you modify it prior to the July 1 operative date to comply with the new paid sick leave law, you will need to provide notice of actual changes within seven days of the effective date of your policy. For example, let’s say that you change your company policy relating to sick leave to comply with the new law and make that revised policy effective on June 1, 2015. You would need to provide notice of the changes to existing employees by June 8, 2015.
You can use a couple of methods to meet the requirement to provide notice of changes relating to paid sick leave to existing employees:
- You can use the notice provided by the Labor Commissioner and available on HRCalifornia.
- You can use a separate written document that contains all of the required information about paid sick leave.
- You can reflect all changes on an itemized wage statement that’s issued in a timely manner.
If you use a written document other than the notice created by the Labor Commissioner, you must make certain that the document summarizes your existing policy and demonstrates how you intend to meet the requirements of the paid sick leave law for the particular employee. The document must contain the following points of information about paid sick leave specified in Labor Code section 2810.5. The document must state that an employee:
- May accrue and use sick leave;
- Has a right to request and use accrued paid sick leave;
- May not be terminated or retaliated against for using or requesting the use of paid sick leave; and
- Has the right to file a complaint against an employer who retaliates.
Once the paid sick leave benefit kicks in on July 1, you must provide employees with information relating to paid sick leave each pay period. When you pay an employee, you must provide him/her with a written notice setting forth the amount of paid sick leave (or paid time off that you provide instead of sick leave) available to the employee. You can provide this notice to the employee either:
- On the already required itemized wage statement (the wage statement is most often provided on employee pay stubs)
- In a separate written document provided to the employee with the payment of wages.
Employers will want to take a look at their itemized wage statements and make the necessary updates. If you instead choose to develop and provide a separate written document with the payment of wages, you may want to consult an attorney to make sure it meets the legal requirements.
Under the new paid sick leave law, you will need to keep records for at least three years that document the:
- Number of hours that the employee worked;
- Paid sick days accrued by an employee; and
- Paid sick days used by an employee.
If an employer does not keep adequate records, it’s presumed that the employee is entitled to the maximum number of hours accruable – unless the employer can show otherwise by clear and convincing evidence. The records must be available for inspection by the Labor Commissioner. The records must also be available for inspection by the employee upon reasonable request, as with other payroll records.
- Display the required paid sick leave posting where employees can easily read it.
- Update your payroll and recordkeeping systems to ensure that you properly calculate, track and record the paid sick time.
- Show how many days of paid sick leave an employee has available, either on a pay stub or another written document issued the same day as the paycheck.
Make sure that you meet all requirements to provide written notice of paid sick leave information to new and existing employees.
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