2015 Cal-Peculiarities

Quintessential early adapters and always on the go, we Californians love change, and we start trends. That’s good. There has been plenty of change this past year in the world of California labor and employment law. As Father Time prepares to tender his timekeeping duties to Baby New Year, let’s take a moment off the clock to look back at the old year’s most significant legal developments.

2015 saw changes in wage and hour law (notably how to compensate piece rate workers), the continued battle over enforceability of arbitration agreements, and expanded kin care leave rights. But the biggest news was an increase in fundamental employee workplace rights and protections, such as equality in pay and entitlement to paid time away from work. The State Legislature also gave us a new definition of what it means to be a “joint employer” (as opposed to a contractor or other user of task or project-based services), which will likely have long-term ramifications.

What is not new is that California remains the most challenging jurisdiction in which to employ workers. Read on for a brief round-up of what we see as the most trend-making changes of the past year.

California Fair Pay Act

Effective January 1, 2016, the California Fair Pay Act, which commentators have called the nation’s most aggressive equal pay law, will require employers with California-based employees to increase their vigilance to avoid discriminating in pay and benefits based on sex. Discussed previously in more detail here, the Fair Pay Act expands upon existing state and federal laws that prohibit gender-based pay discrimination, and essentially blows the discriminatory intent and disparate impact tests out of the water.

The Fair Pay Act permits the direct comparison of pay of employees of different genders who work in different locations, even if they do not hold the same or substantially equal jobs. As long as workers are engaged in “substantially similar work, when viewed as a composite of skill, effort and responsibility, and performed under similar working conditions,” their pay and benefits must be the same. Unless, that is, the employer can demonstrate that any pay differences are based on seniority, merit, quality or quantity of production, or on a bona fide factor other than sex (such as education, experience, or training, so long as the other factor is job-related and consistent with business necessity).

Note: The phrases “job-related” and “consistent with business necessity” are familiar to most employers from the state and federal protections for disabled employees. That is, an employer can inquire about a disabled employee’s medical condition or require a medical examination to determine ability to perform a job only if it is “job related and consistent with business necessity.” We could conclude that the California Legislature intended the fair pay analysis to use the same meanings of these terms when considering whether a “bona fide factor” other than sex is sufficient to avoid a finding of illegal discrimination.

In any event, if you have not already done so, now may be the time to conduct a fair pay audit to ensure appropriate distribution of your company payroll among the workforce.

Paid Sick Leave Implementation and Amendments

Beginning on July 1, 2015, California employees began using the new mandatory paid sick time and many employers began experiencing nausea over it. They discovered, as many had feared, that if you give employees a right, they will use it. Whether the paid time sick is conferred in an annual grant or per the accrual method, employees are tending to use it as soon as it becomes available, wreaking havoc on work schedules, especially in occupations or industries that rely heavily on shift workers.

California is hardly alone in implementing mandatory paid sick time (now required in several other states and cities), but it was still one of the first. Eventually, we will forget that there was ever a time when employees did not get paid sick time. But until then, it is one more item to consider in the already heavy cost of doing business in the Golden State.

Joint Liability with Labor Contractors

2015 also brought us a statutory change in the manner in which companies that either are, or who do business with, temporary staffing agencies relate to one another and their employees. As of January 1, 2015, Labor Code section 2810.3 requires “client employers” to share liability with “labor contractors” (e.g., payroll, temporary staffing, or employee leasing agencies) for payment of wages of non-exempt workers, and for providing them with workers’ compensation insurance. The California Legislature was concerned that workers supplied by shady or underfunded agencies would end up getting stiffed for work they performed. But the new law has left some “client employers” wondering exactly what benefits or protections they get from using contingent workers rather than direct hires. Contractual indemnification clauses are on the rise.

What about 2016 and beyond?

Time will tell what else the California lawmakers and courts will dream up for 2016. We predict renewed efforts to increase the minimum wage, grant additional leave rights to all employees, and improve the lot of the unemployed. We can also always count on the plaintiffs’ employment bar to be cooking up some new theories of liability for workplace class actions. Until then, we wish you each a very happy and successful New Year, and look forward to sharing next year’s California peculiarities with you.

This time of year gives us a chance to look back on what we’ve accomplished in the last twelve months. Our legislators and judges have kept us busy reporting on the ever-changing landscape that comes with employing folks in California. We saw our readership continue to grow and, with your support, won the very exciting Best Legal Blog – Labor & Employment for 2015 from The Expert Institute.

We know we couldn’t have happy holidays if no one bothered to read our blog. (Our mothers keep telling us we’re funny, but their support isn’t enough to keep us afloat.) So to our loyal readers, we wish you a lovely holiday season and want to sincerely thank you for your support during 2015. Here’s wishing you the very best in 2016! We promise to keep tossing our stories about the peculiarities of California your way if you promise to keep reading. Lots of holiday-sprinkled good wishes to you all!

Your Cal Pecs Team

iStock_000048342610_LargeEmployers navigating the treacherous waters of California’s new Paid Sick Leave Law and its recent amendments recently received some welcome guidance from the Labor Commissioner. On the heels of an August 7, 2015 opinion letter, in October, the LC issued updated FAQs to assist employers comply with the new law.

While much of the information in the updated FAQs remains unchanged from the original FAQs issued in December 2014, the updated FAQs incorporate the changes from the recent statutory amendments, provide answers to some burning questions, and add more detailed information about the law. Here are highlights from the updated FAQs and the August 7, 2015 opinion letter:

Qualified Employees. The initial FAQs identified three categories of individuals who are exempt from the law. The updated FAQs identify one more—retired annuitants working for governmental entities.

Compliant Sick Pay Policies. While the initial FAQs addressed how much paid sick leave employees are entitled to under the new law, the updated FAQs expand on this point to discuss employers’ different policy options (incorporating information from the recent amendments of course!).

Accrual Policy. As we all know by now, under an accrual policy, employees accrue sick leave at the rate of at least one hour for every 30 hours worked, up to a cap of 48 hours or six days. But employers can limit the amount of sick pay an employee can use each year. The updated FAQs and the August 7, 2015 opinion letter clarify that employers can limit the use of paid sick pay to 24 hours or three days, whichever is more for the employee. So if an employee regularly works 10-hour days and has accrued 30 hours of sick pay, the employee would be entitled to use all 30 hours; the employer could not limit the accrued sick pay to only 24 hours. Similarly, if an employer regularly works six-hour days and has accrued 24 hours, then the employee would be entitled to use all 24 hours.

The amendments allow employers to deviate from the original accrual method (one hour for every 30 hours worked) so long as employees accrue at least 24 hours of paid sick time by the 120th calendar day of employment.

No Accrual/Up Front Policy. Under a no accrual/up-front policy, the employer front loads the full amount of paid sick leave each year. The FAQs and the August 7, 2015 opinion letter answer the burning question of what constitutes the “full amount of paid sick leave”: Twenty-four hours or three days, whichever is more for the employee. So if an employee regularly works 10-hour days, the employer must front-load 30 hours of paid sick leave at the beginning of the year (not 24). Similarly, if an employee regularly works six-hour days, then the employer must front-load 24 hours (not three days).

The amendments regarding the no-accrual method clarified that employers who use this front-loading method can grant the full amount of leave at the beginning of each calendar year, each year of employment, or any other 12-month period. The full amount of leave must be available for employees to use immediately. Paid sick leave need not be available to new hires until the 120th day of employment.

Grandfathered Policies. The amendments provide that certain policies can be “grandfathered” if the policy existed before January 1, 2015 and (1) the accrual provides no fewer than one day or 8 hours of accrued paid sick leave or paid time off within three months of employment per year and (2) the employee was eligible to earn at least three days or 24 hours of paid sick leave or paid time off within nine months of employment. But beware! An employer that modifies a grandfathered policy nullifies the grandfathered qualification, and the employer must then comply with either the accrual or no-accrual policies described above.

Of course, employers may also provide paid sick leave through existing PTO or sick pay policies, so long as the policy satisfies the accrual, carryover and use requirements of the new law and applies to all qualified employees.

Seasonal And Returning Employees. The updated FAQs discuss paid sick leave for seasonal/returning employees. The law requires that an employee’s accrued and unused sick leave be restored if that employee returns to the same employer within 12 months from the previous separation. Employers need not restore sick leave to employees who return to work for the same employer after more than one year. The amendments have clarified that employers need not restore previously accrued paid sick leave provided under a PTO policy where the employee’s PTO was cashed out at the end of employment.

Unlimited Time Off. The updated FAQs address the amendments regarding unlimited time off policies. The law requires that employers, on each payday, provide written notice to employees regarding the amount of paid sick leave they have available. The amendments have clarified that employers with unlimited paid time off plans can meet this requirement by indicating, on itemized pay stubs or on separate written statements. that the paid sick leave is “unlimited.”

Pay for Sick Leave. The updated FAQs address both the original method for calculating sick pay and the new method added by the amendments. Initially, the only method for calculating sick pay was by dividing the total compensation for the previous 90 days (excluding overtime) by the total number of non-overtime hours worked in the full pay periods of the prior 90 days of employment. The amendments provided a new method for this calculation: the employee’s regular, non-overtime rate of pay for the workweek in which the employee used sick leave. Exempt employees’ rate of pay for sick leave is calculated in the same manner the employer calculates wages for other forms of paid leave time (e.g., vacation or PTO).

30-Day Eligibility Requirement. Before the updated FAQs, it was unclear whether employees were required to work in California for the same employer for at least 30 calendar days or work days to be eligible for paid sick leave. The updated FAQs clarify that this 30-day requirement is calendar days.

While the FAQs and the opinion letter do not address every potential question regarding the new law and amendments, they provide more guidance and clarification on the law. Stay tuned as we’ll continue to keep you posted on any new paid sick leave developments.

HiResYou’re reading a blog post, and thus need no primer on the prevalence of social media. But you may not be aware of the pitfalls facing employers that use, monitor, or implement policies regarding social media.

Employers can face liability for a wide variety of social media-related practices. For example, if you thought employers generally could prohibit employees from picking fights online or that there isn’t anything wrong with an employer friending an applicant before extending a job offer … well, think again.

Big Brother The NLRB Is Watching

In recent years, the National Labor Relations Board has increasingly scrutinized social media employment policies to see if they would deter the rights of employees to engage in concerted activities, including the rights to discuss their terms and conditions of their employment.

We previously lamented the lack of clarity regarding what constitutes an acceptable social media policy in the jaundiced eyes of the NLRB. The good news is that the NLRB’s General Counsel has issued guidelines regarding social media policies.  The bad news is that the guidelines sometimes offer insufficient guidance, or guidance that the courts may not accept. Further, the views expressed in the guidelines are those of the General Counsel, and may or may not be accepted by the NLRB.

For example, the NLRB guidelines advise that the following seemingly innocuous rules are likely unlawful:

  • prohibiting employees from engaging in disrespectful, negative, inappropriate or rude conduct towards employers or management;
  • generally prohibiting employees from sending unwanted, offensive or inappropriate emails;
  • banning, across the board, picking fights online; and
  • requiring employees to get approval before creating a blog or discussion group.

The NLRB guidelines disapprove of such generally stated policies because they could have the effect of curbing protected activity.

In contrast, the NLRB explained that the following, more specific, rules would likely be lawful:

  • prohibiting employees from being disrespectful, negative or rude to customers;
  • prohibiting conduct that threatens, intimidates, coerces, or otherwise interferes with the job performance of fellow employees or visitors; and
  • requiring employees to get approval before creating an online forum that does not relate to wages, terms, and conditions of employment or other protected activity.

The NLRB guidelines suggest that these rules likely would be permissible because they are drafted with sufficient specificity to demonstrate that they won’t impede the right of employees to discuss the terms and conditions of their employment.

The main takeaway from the NLRB guidelines is that context is key. A rule that might come across as ambiguous (and unlawful) in isolation may take on a whole new meaning with carve outs or examples that demonstrate how the rule won’t prevent an employee from engaging in a protected activity.

Pandora’s Box of Potential Pitfalls

The NLRB is not the only policer of social media employment policies. California and a growing number of other states prohibit employers from (1) requiring job applicants to provide social media passwords, (2) requiring job applicants to “friend” employees, or (3) requiring applicants’ friends to disclose what the applicants posted online. [Keep an eye out for Part 2 of our Social Media article, with its link to Seyfarth’s Social Media Privacy Legislation Desktop Reference Guide.]

It remains true, of course, that California employers are not explicitly prohibited from viewing publicly available information. But just because it’s not unlawful doesn’t mean it’s advisable.

In addition to social media revealing trivial information like what someone just listened to on Spotify, social media can also reveal a host of personal information that employers cannot ask for during the hiring process (and may be better off not knowing). By viewing this information and then deciding not to hire an applicant, employers can inadvertently expose themselves to litigation risk. For example, if a rejected applicant’s Instagram or Facebook postings contain pregnancy-related pictures, or photographs of church-related functions, or show that the applicant has a disabled child or spouse, a potential employer might later find itself embroiled in a discrimination claim.

So while California has not (yet) forbidden you to check out your potential employee pool online, the potential problems caused by doing so may mean you might want to skip the Facebook stalking and stick with Candy Crush. (The uninitiated who find this reference obscure may wish to consult https://apps.facebook.com/candycrush.)

Workplace Solutions

Given the trove of personal information available online, the best practice is to avoid using social media during the hiring process. And it might seem harmless to prevent an employee from being rude to a supervisor on Twitter, or to look up a potential employee on your Facebook app, in this case what you inadvertently know might hurt you. So steer clear if you can—knowing how many Grumpy Cat memes an applicant or employee posted is not worth it!

If you have any questions regarding your workplace’s social media policies or practices, please contact the author, or another Seyfarth attorney.

iStock_000000642401_LargeYesterday, Governor Jerry Brown signed into law AB 897, a “clean up” bill he requested to address an omission in AB 359, which Governor Brown had signed into law on August 17, 2015. This legislation, effective January 1, 2016, will require a successor grocery employer to retain eligible workers for a 90-day transitional period and, upon completion of that period, will require the successor grocery employer to consider offering continued employment to those workers. The new law will apply to retail stores in California that are over 15,000 square feet in size (your typical supermarket is 45,000 square feet) and that sell primarily household foodstuffs for offsite consumption.

To be “eligible,” the employee must

  • have worked for the predecessor employer for at least six months and
  • not be a manager, supervisor, or confidential employee (someone with access to confidential or discretionary information such as legal, budgeting, or development of policies and procedures pertaining to labor/employee relations).
  • The law will prohibit the new owner from discharging inherited employees without cause during a 90-day transitional period. As “successor grocery employers,” the new owners will also likely inherit the store employees’ union and any collective bargaining agreement, as well as problem employees and senior employees earning high wages.

But all is not restrictive: AB 359 permits successor employers to establish new terms and conditions for the inherited employees, which may allow for an opportunity to renegotiate any existing union contracts. In addition, the law expressly states that “parties may, by collective bargaining agreement, provide the agreement supersedes the requirements” of AB 359. This will presumably require a new employer to either become involved in the predecessor’s bargaining session prior to the purchase, or to engage in immediate bargaining with the current union to avoid having to offer employment to inherited employees after the 90-day transitional period.

What is the Impact on California Employers?

Grocery employers’ abilities to hire their own workforces will be substantially curtailed. No longer will a new employer be able to refuse to hire inherited employees based on results of background checks or other typical pre-employment screens. Instead, a new employer that does not wish to employ an inherited employee must have a valid reason to terminate the employee “for cause.” Further, a new employer that wants to build a culture from the ground up, with its own fresh crew, should think twice about triggering WARN and Cal-WARN Act obligations related a large scale reduction in force before releasing inherited employees.

Will the substance of AB 359 survive judicial challenge? In 2011, the California Supreme Court rejected a challenge to a similar Grocery Worker Retention Ordinance enacted by Los Angeles, which requires new grocery store owners to keep existing employees for months after taking over ownership.

Not the End of the Story…

Governor Brown also noted in his signing message some ambiguity in the law: “as drafted, the bill is not clear on how the provisions apply if an incumbent grocery employer has ceased operations.” He noted the author and sponsor have committed to clarify that the law would not apply to a grocery store that has ceased operations for six months or more, and that he expected to see legislation to that effect before the end of this legislative session. On August 20, Assembly Member Gonzalez, followed the Governor’s directive, gutting and amending AB 897, which previously related to court records. Now, AB 897 amends provisions that will be put in place by AB 359 on January 1, 2016 to exclude from the definition of “grocery establishment” a retail store that has ceased operations for six months or more. The Governor signed AB 897 on September 21, 2015.

Workplace Solutions

If you are thinking about purchasing an existing grocery establishment, you may want to wrap up the transaction and hire your new workers before this new law becomes effective on January 1, 2016. Companies that cannot close a deal before January 1, 2016, may consider the following:

  • Make sure you have a clear picture of the existing workforce, with whom you will be living for at least the first 90 days.
  • Set new terms and conditions of employment (i.e., position offered, wages, amount of vacation, etc.) before offering positions to inherited workers.
  • Condition the purchase of the grocery establishment on the negotiation of clear and unambiguous waiver language within its collective bargaining agreement (if any) giving successor grocery owners greater flexibility to screen and terminate inherited employees.
  • Hire effective managers and ensure human resources policies are solid, to hold inherited workers accountable for poor performance and ensure any disciplinary decisions comply with the new law’s “for cause” standard.

If you have any questions or would like further information, your favorite Seyfarth attorney is standing by to help.

 We are excited to announce that from a field of more than 2,000 potential nominees, our Cal-Peculiarities blog has received enough nominations (thank you!) to join the 250 legal blogs participating in The Expert Institute’s Best Legal Blog Competition!

Now that the blogs have been nominated and placed into their respective categories, it is up to you, our cherished readers, to select the very best. With an open voting format that allows participants one vote per blog, the competition will be a true test of the dedication of our readers, while also giving up-and-coming players in the legal blogging space exposure to a wider audience. Each blog will compete for rank within its category, while the three blogs that receive the most votes in any category will be crowned overall winners.

We work tirelessly to keep abreast of trends and issues in California employment law so that our readers are too…Please help us spread the word and capture votes. The competition will run from NOW until the close of voting on OCTOBER 9th. Thank you in advance for your support of our beloved California Peculiarities Blog, and a big thank you to our dedicated bloggers.

Please vote by clicking here!

Responsive Web Design Concept. VectorSince New Jersey led the way in 1994, many states have enacted so-called Megan’s Laws, which establish public online registries of individuals who have been convicted of a sex-based offense. California’s version of Megan’s Law is codified as California Penal Code § 290.46.

Section 290.46 requires all convicted sex offenders to register with the state’s sex-offender Registry. California then publishes online the names, identifying features, and, in some cases, addresses of the 83,000 registrants—all for the world to see with just a few mouse-clicks.

Why Does Megan’s Law Concern California Employers?

A curious reader might now feel the urge to visit the Megan’s Law website to test a suspicion that some acquaintances appear on the list (indeed, your Cal Pecs blog author succumbed to that very temptation while preparing this article). But employers, in particular, should exercise caution when pursuing such a curiosity.

California employers usually may not use information from the Registry to refuse to hire, fire, or demote an employee or potential employee.

  • Section 290.46 expressly prohibits employers from using Registry information for employment purposes, except as otherwise provided by statute or to “protect a person at risk.”
  • Misuse of Registry information exposes employers to potential litigation and damages, fines, and attorneys’ fees.

Are There Any Exceptions?

The statute permits employers to use Registry information “to protect a person at risk.” Cal. Pen. Code § 290.46. But this vague term generally means someone who “is or may be exposed to a risk of becoming a victim of sex offense committed by the offender.”  Cal. Pen. Code § 290.45(a)(8). The “person at risk” exception could protect some employers (e.g., day care centers, hospitals, senior centers, etc.) from liability if they use the Registry to evaluate the fitness of their employees or prospective employees. But most people—employees as well as patrons—are not obvious “person[s] at risk.” Employers, therefore, should not assume that this exception covers Registry-based adverse employment actions. It likely does not.

In addition, some employers are subject to laws that prohibit them from hiring convicted sex offenders altogether. Section 45122.1 of the Education Code, for example, forbids schools from hiring persons convicted of sex offenses (and other serious crimes). Thus, some employers have statutory protection from liability if they use the Registry as a basis for an adverse employment action.

Why Can’t I Use Megan’s Law To Keep Offenders Out Of My Workplace?

Section 290.46 expresses California’s public policy that seeks to protect offenders from “additional punishment” or “retribution” once they have paid their debt to society and have resumed their place among their fellow citizens. California is “peculiar” on this front—most other states’ Megan’s Laws do not include similar restrictions on the use of the Registry in employment contexts.

This should not come as a surprise. Preventing someone from working based solely on their criminal history is coming under increased scrutiny in California, as in many other jurisdictions. Indeed, “ban the box” movements, which demand that employers not ask prospective employees about past criminal convictions, are gaining momentum throughout California and nationally. State and local government employers in California may no longer ask for criminal record information on job applications, and as of August 2015, San Francisco private employers of 20 or more employees cannot inquire about criminal history either. (See our earlier post here.)

So, the moral of the story is . . . unless you fall under an exception to Section 290.46, or your workplace contains obvious “persons at risk,” you need to treat any person found on the Megan’s Law Registry just as you would any other employee or applicant.

Workplace Solution: Employers must balance concerns about workplace safety with the twin public policy goals of (i) not punishing someone twice for the same crime and (ii) ensuring that everyone has a chance to earn a living, regardless of past convictions.

If you have Megan’s Law-driven concerns about a current or prospective employee, refrain from making a hasty decision. As always, don’t hesitate to contact your Seyfarth lawyer if you are facing this predicament and need advice on how to proceed.

(Photo) SF StreetBy Laura Maechtlen and Jason Allen

As our loyal CalPecs blog readers know, in November 2014, San Francisco passed two ordinances—“Hours and Retention Protections for Formula Retail Employees” and “Fair Scheduling and Treatment of Formula Retail Employees”—colloquially known, together, as the “San Francisco Retail Workers’ Bill of Rights.”  (Our most recent update and a recent Management Alert can be found here and here, respectively.)  On July 7, 2015, the S.F. Board of Supes proved that the Bill of Rights is a living document by passing an amendment to the SF Workers’ Bill of Rights on the final reading.

Most significantly, the amendment changes the definition of employers covered by the ordinances.  The amendment also modifies some of the requirements imposed on employers and clarifies some open enforcement issues.  The Office of Labor Standards Enforcement (“OLSE”) has posted information about the amendment here and here, and the text of the amendment here. In short: Continue Reading Changes to the S.F. Formula Retail Employee Rights Ordinances

(Illustration)CompetitionDear Friends and Loyal Readers,

We need your help!  The Cal-Peculiarities Employment Law Blog has been invited to participate in a “best legal blog competition” sponsored by The Expert Institute.   If you appreciate our weekly posts, we would very much appreciate your nominating us in the Labor & Employment category.

If our blog is selected for one of the top three prizes, any prize money will be donated to a worthy charity.

To nominate our blog, please CLICK on the below link, SCROLL down to the bottom of the page, and FILL IN the information on the RIGHT-HAND SIDE of the page.


Enter YOUR name and email
Blog address is: https://www.calpeculiarities.com/
From the drop-down list, choose “Labor & Employment”
State why you think our blog is the best: (e.g.,  we deliver prompt and insightful information that all CA employers need to know; we provide practical solutions to vexing CA employment law issues;  we are funny and have amusing graphics)

Thank you for your consideration and support!

Man signs document stamped handleBy Dana Peterson and Christopher Im

California’s Paid Sick Leave Law, AB 304, or the Healthy Workplaces, Healthy Families Act of 2014 as it is officially known, is a hot topic that we have blogged about a number of times. Eligible employees began accruing paid sick time under the new law on July 1st. However, proposed amendments to the Paid Sick Leave Law were still meandering through the Legislature until finally passed by the Senate on July 13th and signed into law by Governor Brown today.

Assembly Bill 304 was first introduced in February 2015, and underwent seven dizzying amendments. In our last blog, we discussed the June 2, 2015 version, which included for the first time an urgency clause. The urgency clause makes the amendments effective today, the day that Governor Brown signed the bill. To see the full text of the newly passed amendments, click here.

So what do the latest amendments do? The key changes relate to how employers are to calculate the payment of sick time accrued under the new law.

When the law was originally passed, the rate of pay was to be calculated based upon an employee’s hourly rate. For employees who earn different hourly rates of pay, are paid by commission or piece rate, or are nonexempt salaried employees, the rate of pay was calculated based upon the wages paid, not including overtime premium pay, and the hours worked in the full pay periods that the employee worked during the prior 90-days.

A different method of calculation was proposed in the original text of AB 304. However, to keep things interesting, subsequent amendments proposed different methods of calculation, including the final June 22nd amendment. While this left many employers scratching their heads over how to update their policies (“Should we incorporate the original method of calculation for  now?”  “Should we incorporate this version or wait and see if it’s going to be amended again?”  “What?  Another amendment?  It’s been only 3-days since the last one!  I give up!”) the good news is that the amended version signed by the Governor today contains a greatly simplified method of calculation.


a) For nonexempt employees, employers may choose one of two options: (1) calculate paid sick leave in the same manner as the regular rate of pay for the workweek in which the employee uses the paid sick time; or, (2) calculate paid sick leave by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked during the full pay periods that the employee worked during the prior 90 days.

b) For exempt employees, paid sick leave is calculated in the same manner as the employer calculates wages for other forms of paid leave time.

If you have any questions about the newly adopted amendments, you can always reach out to our California Counseling and Workplace Solutions team.

Edited by Jeffrey Berman and Colleen Regan