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
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
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.
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
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:
child (regardless of age), including a biological, adopted, or foster child;
legal ward; or a child to whom the employee stands in loco parentis
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
registered domestic partner
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
January 1, 2015, employers were required to display a poster in each workplace
of the employer, in a conspicuous place, containing the following information;
employee is entitled to accrue, request, and use paid sick days.
amount of sick days provided for by this article.
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.
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
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
to employees covered by Collective Bargaining Agreements
covered by a valid collective bargaining agreement are exempt provided the following
conditions are met;
provides for the wages, hours of work, and working conditions of employees;
provides for paid sick days or a paid leave or paid time off policy that
permits the use of sick days for those employees,
for final and binding arbitration of disputes concerning the application of its
paid sick days provisions;
wage rates for all overtime hours worked; AND
hourly rate of pay of not less than 30 percent more than the state minimum wage
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.
and Tracking of Hours and Days of Employment.
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