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HomeMy WebLinkAboutMINUTES - 05032011 - C.36RECOMMENDATION(S): OPPOSE Assembly Bill 400 (Ma): Employment: Paid Sick Days, a bill that would establish the Healthy Workplaces, Healthy Families Act of 2011, entitling an employee in California to paid sick days if he or she works seven or more days in a calendar year, as recommended by the Director of the Employment and Human Services Department. FISCAL IMPACT: At a minimum, this bill would result in an additional cost of approximately $3.5 M in Contra Costa, with an additional $600,000 County share in the first year. Estimates of subsequent year costs are $7M (total cost per year), with an additional $1.2M to the County. BACKGROUND: This bill is substantially the same as the author's two prior efforts in this area since 2008. The prior measures passed the Assembly Judiciary Committee by a 7-3 vote but were held on suspense in the Appropriations committees. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 05/03/2011 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS AYE:John Gioia, District I Supervisor Gayle B. Uilkema, District II Supervisor Mary N. Piepho, District III Supervisor Karen Mitchoff, District IV Supervisor Federal D. Glover, District V Supervisor Contact: L. DeLaney, 925-335-1097 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: May 3, 2011 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: Carrie Del Bonta, Deputy cc: C. 36 To:Board of Supervisors From:David Twa, County Administrator Date:May 3, 2011 Contra Costa County Subject:OPPOSE AB 400 (Ma): Employment: Paid Sick Days This bill, co-sponsored by the California Labor Federation, Communications Workers of America and the Labor Project for Working Families, creates the Healthy Families, Healthy Workplaces Act of 2011 which requires employers to provide paid sick days for an employee who works for seven or more days in a calendar year. Sick days would accrue at the rate of no less than one hour for every 30 hours worked. The employee would be able to use such sick days beginning on the 90th calendar day of employment. BACKGROUND: (CONT'D) AB 400 also defines an employer to include public authorities, specifically In-Home Supportive Service Providers, and adds accrued sick leave to the list of required items an employer must provide as part of an employee’s wage statement. Existing law authorizes employers to provide their employees paid sick leave. This bill would provide that an employee who works in California for 7 or more days in a calendar year is entitled to paid sick days, as defined, which shall be accrued at a rate of no less than one hour for every 30 hours worked. An employee would be entitled to use accrued sick days beginning on the 90th calendar day of employment. The bill would require employers to provide paid sick days, upon the request of the employee, for diagnosis, care, or treatment of health conditions of the employee or an employee's family member, or for leave related to domestic violence or sexual assault. An employer would be prohibited from discriminating or retaliating against an employee who requests paid sick days. The bill would require employers to satisfy specified posting and notice and recordkeeping requirements. The bill would also make conforming changes. The bill would specify that it does not apply to employees covered by a collective bargaining agreement that provides for paid sick days, nor does it lessen any other obligations of the employer to employees. This bill would further specify that it does not apply to employees in the construction industry covered by a collective bargaining agreement if the agreement expressly waives the requirements of this article in clear and unambiguous terms. However, the bill would specify that it applies to certain public authorities, established to deliver in-home supportive services, except where a collective bargaining agreement provides for an incremental wage increase sufficient to satisfy the bill's requirements for accrual of sick days. According to the author, 40 percent of all workers in California do not have any paid sick days through their employer. The author states that this bill appropriately allows workers to earn paid sick days, which they can use for personal illness, to care for a sick family member and to recover from domestic violence or assault. The author argues that studies have found that providing sick days to workers saves money for businesses by reducing turnover, reducing the spread of illness in the workplace, and improving workers' morale and productivity. The sponsors state that the lack of paid sick days is a public health hazard. The sponsors also state that this bill will increase productivity since the productivity of workers with even minor illnesses goes down compared to the productivity of their healthy co-workers. Finally, the author states that this bill will prevent parents from choosing between caring for a sick child and work obligations. Opponents representing many large and small business associations, including the California Employment Law Council and the California Chamber of Commerce, argue that this bill would unreasonably expand employers' burdens, costs and liability. Opponents also state that many California employers provide paid sick leave and/or paid vacation time even though current law does not require it. Opponents conclude that in an already troubled economy California should be seeking ways to stimulate job growth and avoid forcing costly mandates on employers. Specifically, this bill: 1) Provides that an employee who works in California for 7 or more days in a calendar year is entitled to paid sick days, accrued at a rate of no less than one hour for every 30 hours worked. 2) Provides that an employee would be entitled to use accrued sick days beginning on the 90th calendar day of employment. 3) Requires employers to provide paid sick days, on the employee's request, for the following purposes: a) for diagnosis, care, or treatment of health conditions of either the employee or an employee's family member, or b) for leave related to domestic violence or sexual assault. 4) Prohibits an employer from denying an employee the right to use sick days, or discharging or threatening to discharge, demote, suspend, or in any manner discriminating against an employee for using sick days, attempting to exercise the right to use sick days, filing a complaint with the Department or in court alleging a violation of this article, cooperating in an investigation or prosecution of an alleged violation of this article, or opposing any policy, practice, or act that is prohibited by this article. 5) Provides that there will be a rebuttable presumption of unlawful retaliation if an employer discriminates in the above ways against an employee within 90 days of: the employee filing a complaint with the Labor Commissioner or in court; the employee cooperating in an investigation or prosecution of an alleged violation; or the employee opposing a policy, practice, or act prohibited by this article. 6) Requires employers to give written notice to each employee in English, Spanish, Chinese, and any other language spoken by at least 5% of employees, stating that an employee has the right to accrue, request, and use paid sick days; the amount of paid sick days entitled to; terms of use of paid sick days; and that retaliation/discrimination is prohibited and an employee has the right to file a complaint or bring a civil action for violations. 7) Requires employers to display a poster in a conspicuous place in each workplace, with all of the information regarding employees' rights that is required in the written notice. 8) Provides that employers who willfully violate the notice and posting requirements are subject to a civil penalty of not more than $100 per offense. 9) Requires the Labor Commissioner to administer and enforce the requirements, including promulgation of regulations, investigation, mitigation, and relief of violations. 10) Authorizes the Labor Commissioner to impose specified fines for violations. 11) Authorizes the aggrieved person, the Labor Commissioner, the Attorney General, or the aggrieved person's organization to bring an action for civil penalties against an offender, as well as attorneys' fees, costs, and interest. 12) Specifies that the requirements do not apply to employees covered by a collective bargaining agreement that provides for paid sick days, nor does the bill lessen any other obligations of the employer to employees. 13) Specifies that the requirements do not apply to employees in the construction industry covered by a collective bargaining agreement if the agreement expressly waives the requirements of this article in clear and unambiguous terms. 14) Specifies that the requirements do apply to certain public authorities, established to deliver in-home supportive services, except where a collective bargaining agreement provides for an incremental wage increase sufficient to satisfy the bill's requirements for accrual of sick days. 15) Provides that a small business employer (defined as an employer with 10 or fewer employees during 20 or more work weeks in the current or preceding calendar year) can limit an employee's use of sick days to 40 hours, or 5 days, in each calendar year. 16) Provides that all other employers (not small business) may limit an employee's use to 72 hours, or 9 days, in each calendar year. 17) Requires employers to keep records for at least 5 years documenting hours worked and paid sick days accrued and used by employees. 18) Authorizes the Labor Commissioner, if he or she determines after a hearing that the employer has violated this article, to order appropriate relief, including reinstatement, backpay, payment of sick days unlawfully withheld, and payment of an administrative penalty to the person whose rights were violated; if paid sick days were withheld unlawfully, the dollar amount of sick days withheld multiplied by three, or $250, whichever is greater, will be included in the administrative penalty; in addition, if other harm was caused to the person by the violation (such as discharge from employment), the administrative penalty shall also include $50 for each day or portion thereof that the violation occurred or continued. 19) Authorizes the Labor Commissioner to take enforcement action such as filing a civil action if prompt compliance is not forthcoming by an employer; authorizes the Labor Commissioner to order the employer to pay not more than $50 per day a violation occurs to compensate the state for the costs of remedying the violation. 20) Authorizes the Labor Commissioner, the Attorney General, a person aggrieved by a violation, or an entity a member of which is aggrieved, to bring a civil action in court against the employer or other person violating this article. Provides that upon prevailing, the party filing suit shall be entitled to appropriate legal or equitable relief to remedy the violation, including reinstatement; backpay; payment of sick days unlawfully withheld; payment of liquidated damages of $50 to each employee whose rights were violated; plus the dollar amount of paid sick days withheld from the employee multiplied by three or $250, whichever is greater; reasonable attorneys' fees and costs. 21) Provides that in an administrative or civil action, the Labor Commissioner or the court shall award interest on all amounts due and unpaid, at the rate of interest specified in Civil Code section 3289(b). 22) Provides that the remedies, penalties, and procedures provided are cumulative. REGISTERED SUPPORT/OPPOSITION: Support California Labor Federation (sponsor) 9to5 National Association of Working Women -- California California Child Care and Referral Network California Conference Board of the Amalgamated Transit Union California Conference of Machinists California Federation of Teachers California Labor Federation California Nurses Association/National Nurses Organizing Committee California Official Court Reporters Association California Pan-Ethnic Health Network California Teamsters Public Affairs Council California Women's Law Center Communication Workers of America, District Disability Rights Legal Center Employment Law Center - Legal Aid Society of San Francisco Engineers and Scientists of California Equal Rights Advocates Having Our Say! Health Access California Health Officers Association of California International Longshore & Warehouse Union International Longshore & Warehouse Union - N. Cal International Warehouse, Processing and Distribution Workers' Union Labor Project for Working Families National Lawyers Guild Labor & Employment Committee Professional & Technical Engineers, Local 21 Restaurant Opportunities Center of Los Angeles Saint John's Well Child and Family Center (Los Angeles) UAW, Local 2865 UNITE HERE! United Domestic Workers of America/AFSCME Local 3930 United Food and Commercial Workers Union, Local United Food and Commercial Workers Union, Western States Council United Steel Workers Local 675 Utility Workers Union of America, Local 132 Opposition Agricultural Council of California Associated Builders and Contractors of California Associated General Contractors of California Association of California Healthcare Districts Association of California Water Agencies California Aerospace Technology Association California Apartment Association California Association of Bed and Breakfast Inns California Association of Health Facilities California Association of Health Services at Home California Association of Public Authorities California Association of Joint Powers Authorities California Attractions and Parks Association California Automotive Wholesalers' Association California Bankers Association California Chamber of Commerce California Chapter of the American Fence Association California Employment Law Council California Farm Bureau Federation California Fence Contractors' Association California Framing Contractors Association California Grocers Association California Hospital Association California Hotel and Lodging Association California Landscape Contractors Association California Lodging Industry Association California Manufacturers & Technology Association California New Car Dealers Association California Newspaper Publishers Association California Retailers Association California Service Station and Automotive Repair Association California Special Districts Association California State Association of Counties City of Lakewood Engineering and Utility Contractors Association Engineering Contractors' Association Flasher/Barricade Association Hall Ambulance Service, Inc. League of California Cities Marin Builders' Association National Federation of Independent Business Pacific Association of Building Service Contractors Regional Council of Rural Counties Simi Valley Chamber of Commerce Western Electrical Contractors Association Western Growers Several Individuals STATUS: 02/14/2011 INTRODUCED. 03/03/2011 To ASSEMBLY Committees on LABOR AND EMPLOYMENT and JUDICIARY. 04/13/2011 From ASSEMBLY Committee on LABOR AND EMPLOYMENT: Do pass to Committee on JUDICIARY. 04/26/2011 From ASSEMBLY Committee on JUDICIARY: Do pass to Committee on APPROPRIATIONS. VOTES: 04/13/2011 Assembly Labor and Employment Committee P 5-1 04/26/2011 Assembly Judiciary Committee P 6-3 ATTACHMENTS AB 400 (Ma) Bill Text