AICP Spotted
Give Us Thirty Seconds, We'll Give You The Industry
June 16, 2015
In This Issue
COMMUNITY AFFAIRS
THE 2015 AICP SHOW @ MOMA
THE AICP NEXT AWARDS DAZZLE ONCE AGAIN
AICP WEEK BASE CAMP - THE HOT SPOT
AICP AWARDS TOUR KICKS OFF IN THE MOTOR CITY
TEE IT UP FOR A GOOD CAUSE - THE 2015 MADISON AVE. OPEN
THE YDA 2015 BEACH COCKTAIL PARTY
SPONSORED CONTENT
FUZE: BETTER COLLABORATION FOR CREATIVE TEAMS
ENTER TO WIN A TRIP FOR TWO TO PARADISE
LETTER OF THE LAW
CALIFORNIA PAID SICK LEAVE REQUIREMENTS FOR STAFF & FREELANCE EMPLOYEES
PRODUCTION UPDATE
DIVERSITY IN THE WORKPLACE
UPDATE ON UNMANNED AIRCRAFT SYSTEMS
AICP MEMBERS INVITED TO SAG-AFTRA OPEN HOUSE
MEMBER SERVICES
WELCOME NEW MEMBERS

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HAPPENINGS
June 16th, 2015 - Wyatt's Wake: The Wyatt Neumann Memorial Fundraiser

July 8th, 2015 - AICP Town Hall On Insurance In L.A. 

July 15th, 2015 - AICP Show in Detroit

July 20th, 2015 - Madison Ave. Open @ Trump Ferry Point

July 29th, 2015 - AICP Show in Los Angeles
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LETTER OF THE LAW
CALIFORNIA PAID SICK LEAVE REQUIREMENTS FOR STAFF & FREELANCE EMPLOYEES

On September 10, 2014, Governor Jerry Brown signed Assembly Bill 1522, also known as the Healthy Workplaces, Healthy Families Act of 2014, into law.  The law went into effect on January 1, 2015 and the vast majority of California workers shall be entitled to accrue paid sick leave on July 1, 2015.  This article serves as a general overview of the Act with special emphasis on how it applies to freelancers working in California as well as those covered by the commercial industry’s four (4) principle collective bargaining agreements.

Overview

             Coverage of Employees and Accrual of Paid Sick Time:  Unless covered by one of the limited exceptions discussed below, employees are covered if they work thirty (30) days in the State of California within one (1) year from the commencement of employment in California. This work requirement for coverage may be satisfied by work in California after January 1, 2015 and does not require continuous employment. Thus, as of July 1, 2015 employees may have already satisfied the thirty (30) days of work coverage requirement since January 1, 2015 although accrual of paid sick leave doesn’t begin until July 1, 2015 (see next section). Because there doesn’t seem to be any requirement that the thirty (30) work days in California be worked for the same employer, a freelancer working on a job by job basis for several different employers could satisfy this requirement 

            Thus, the Act applies to all part-time, temporary, seasonal, per diem and by extension, freelance employees, unless the employee is covered by an exception as discussed below.

            Employees accrue paid sick leave at a rate of one (1) hour for every thirty (30) hours worked on and after July 1, 2015 and may use accrued sick leave after the employee’s 90th calendar day of employment.  The ninety (90) day period does not have to be continuous, and employees hired on or after January 1, 2015 may have already satisfied this requirement.  Because the accrual of paid sick leave is specific to the employer (or joint employer) who is required to pay it, it appears that the ninety (90) day waiting period is employer specific as well. 

            Upon separation from employment and unless an employer’s policy states otherwise, employers are not required to payout accrued but unused sick time. However, an employee’s accrued sick leave is restored if the employee returns to the same employer within twelve (12) months from the previous separation.  The law does not address whether or not an employee must again satisfy the thirty (30) and ninety (90) day requirements if separated from employment for more than twelve (12) months.    

             Use of Paid Sick Leave: Upon oral or written request, an employer must allow the use of accrued sick leave for the diagnosis, care, or treatment of an existing health condition for the employee or the employee’s family member, and for an employee who is the victim of domestic violence, sexual assault, or stalking.  The phrase “family member” was defined by the drafters quite broadly.  It includes:

  1. A child (regardless of age), including a biological, adopted, or foster child; legal ward; or a child to whom the employee stands in loco parentis

  2. A biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child

  3.  A spouse

  4.  A registered domestic partner

  5.  A grandparent

  6.  A grandchild

      The expansive definition of “family member” goes beyond the definitions in place for family leave under the federal Family and Medical Leave Act (FMLA) or the California Family Rights Act (CFRA), creating a situation in which employees may be entitled to paid sick leave that is not chargeable to their FMLA or CFRA entitlements.

      Lastly, beginning January 1, 2015, employers were required to display a poster in each workplace of the employer, in a conspicuous place, containing the following information;

  1.  An employee is entitled to accrue, request, and use paid sick days.

  2. The amount of sick days provided for by this article.

  3. The terms of use of paid sick days.

  4. Retaliation or discrimination against an employee who requests paid sick days or uses paid sick days, or both, is prohibited and that an employee has the right under this article to file a complaint with the Labor Commissioner against an employer who retaliates or discriminates against the employee.

            The California Division of Labor and Standards Enforcement has provided a template for this poster, which can be found at the following address; https://www.dir.ca.gov/DLSE /Publications/Paid_Sick_Days_Poster_Template_%2811_2014%29.pdf.

Though this law entitles an estimated 6.5 million workers in California to paid sick leave, certain workers will remain uncovered, such as employees working under collective bargaining agreements that provide specified minimum pay and benefit levels, including paid leave equal to or in excess of that mandated by the anticipated law.

Application to employees covered by Collective Bargaining Agreements

            Employees covered by a valid collective bargaining agreement are exempt provided the following conditions are met;

  1. expressly provides for the wages, hours of work, and working conditions of employees;

  2. expressly provides for paid sick days or a paid leave or paid time off policy that permits the use of sick days for those employees,

  3. provides for final and binding arbitration of disputes concerning the application of its paid sick days provisions;

  4. premium wage rates for all overtime hours worked; AND

  5. regular hourly rate of pay of not less than 30 percent more than the state minimum wage rate

            There are four (4) principle collective bargaining agreements covering employees in California working in the commercial production industry; the Director’s Guild of America National Commercials Agreement, the International Alliance of Theatrical Stage Employees Commercial Production Agreement, and the two (2) Teamsters agreements covering Studio Transportation Drivers and Location Managers/Scouts. Based on our review of these agreements as they would apply in California under five required conditions for exemption, we believe that all fail to meet the second condition of the exemption (in bold above). Therefore, employees working under these agreements would not be exempt under the exemption based on employment under a valid collective bargaining agreement.

Recordkeeping and Tracking of Hours and Days of Employment.

Production companies should consult with their payroll services or have their in house IT personnel review the best ways to maintain accurate records in order  meet their obligations under the  new law.

If you have any questions in regards the points discussed in this Memorandum, please do not hesitate to contact Robert L. Sacks or Michael C. Lydakis of the firm’s Labor and Employment practice group. Please note that this Memorandum is a general treatment of the subject area and is not intended to be legal advice or guidance in any specific situation.  Readers are advised to consult with legal counsel for answers to specific fact situations.

This memo was prepared for AICP members by Robert L. Sacks and Michael Lydakis of the Kane Kessler, P.C. Labor and Employment Law Department

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