52 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com 110 Military & Veterans Code § 395.10(d), (e). 111 Family Code § 297.5. 112 Id. § 395.10(d), (e). 113 The Covid-19 pandemic drove an exponential increase in complex paid sick and personal leave mandates enacted during 2020. Nationally, 66 paid sick or personal leave mandates arose in 46 jurisdictions. California contributed most of them: about 25 paid sick leave mandates, with the total number depending on whether one counts industry-specific laws (e.g., hotel, food services) and contract-specific laws (e.g, applying to airport concessionaires and city contractors). 114 Lab. Code § 246(a). The California Paid Sick Leave Law does not apply to (1) employees whose employment is governed by a valid CBA that provides for payment of wages, hours of work, working conditions, overtime premiums, regular hourly rate of pay not less than 30 percent greater than the state minimum wage, paid sick leave or similar leave, and final and binding arbitration of disputes regarding the paid sick days provision, (2) construction employees covered by CBAs with specified provisions, (3) certain air carrier and flight personnel, and (4) certain public-sector working retirees. See Lab. Code § 245.5(a). 115 Lab. Code § 246(b)(1). 116 Lab. Code § 246(b)(3). 117 Lab. Code § 246(b)(2). 118 Lab. Code § 246(d), (j). 119 Lab. Code § 246(d), (e). 120 Lab. Code § 246(f)(2). If an employer modifies the accrual method used in the policy in place before January 1, 2015, then the employer must comply with any accrual method set forth in the California Paid Sick Leave Law or provide the full amount of leave at the beginning of each year of employment, each calendar year, or each other 12-month period. Id. 121 Lab. Code § 246(d). 122 Lab. Code § 246(k). 123 Lab. Code § 246(c). 124 Lab. Code §§ 245.5(c), 246.5(a)(1). 125 Lab. Code § 246.5(a)(2). 126 Lab. Code § 246(l)(3). 127 Lab. Code § 246(l)(2). 128 Lab. Code § 246(l)(1). 129 Lab. Code § 246(l)(1) & (2). 130 http://dir.ca.gov/dlse/opinions/2016-10-11.pdf (visited March 3, 2023). The DLSE letter opines that Labor Code § 246(l) (3) did not apply to commissioned employees under the commissioned employee exemption or outside sales exemption, but only to the “white collar” exemptions: administrative, professional and executive. For commissioned employees, employers must choose between Labor Code §§ 246(l)(1) and (2). 131 Lab. Code § 246(g)(1), (2). 132 Lab. Code § 246(g)(2). 133 Lab. Code § 247(a). 134 Lab. Code § 2810.5(a)(1)(H). 135 Lab. Code § 246(i). 136 Lab. Code § 247.5. 138 Lab. Code § 245(b). 139 Lab. Code § 248.5(b)(1) (as enacted in 2014) read: “If the Labor Commissioner, after a hearing that contains adequate safeguards to ensure the parties due process, determines that a violation of this article has occurred, he or she may order any appropriate relief, including reinstatement, backpay, the payment of sick days unlawfully withheld, and the payment of an additional sum in the form of an administrative penalty to an employee or other person whose rights under this article were violated.” Amendments enacted as urgency legislation in September 2020 dropped the reference to a hearing with adequate due process safeguards and emphasized the Labor Commissioner’s power to issue citations. See Lab. Code § 248.5(a) (as amended by AB 1867, effective Sept. 9, 2020): “The Labor Commissioner shall enforce this article, including investigating an alleged violation, and ordering appropriate temporary relief to mitigate the violation or to maintain the status quo pending the completion of a full investigation or hearing through the procedures set forth in Sections 98, 98.3, 98.7, 98.74, or 1197.1, including by issuance of a citation against an employer who violates this article, and by filing a civil action. If a citation is issued, the procedures for issuing, contesting, and enforcing judgments for citations and civil penalties issued by the Labor Commissioner shall be the same as those set out in Section 98.74 or 1197.1, as appropriate.” Although the amendment was part of urgency legislation creating supplemental paid sick leave for Covid-related reasons, the amendment deleting the due process reference from section 248.5(b)(1) now applies to California’s general paid sick leave law. 140 Lab. Code § 248.5(b)(1). 141 Lab. Code §§ 248.5(b)(1)(3) (administrative penalties for unpaid sick leave versus other violations); 248.5(c) ($50 per day penalty where no prompt compliance by employer, not to exceed $4000 aggregate).
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