Yes, you can now be sued for sick pay violations (makes us sick too). In Wood v. Kaiser Foundation Hospitals, the Court analyzed the statutory framework and legislative history of the sick pay statutes and ruled that employers may now be sued to enforce California’s sick pay statute under the Healthy Workplaces Families Act of 2014 through the infamous Private Attorneys General Act of 2004 (“PAGA”).
Previously, plaintiffs could not bring sick pay claims as a private right of action (which is why you haven’t been sued for them yet). That changed following the court’s recent ruling in Wood. Look for plaintiffs to add these to their laundry list of ticky-tack wage-and-hour claims and an uptick in PAGA complaints alleging failure to provide paid sick leave (namely, failure to pay paid sick leave at the regular rate and associated derivative claims).
Here are some quick reminders to make sure you are not victim of what will surely be a regular claim moving forward:
- All California employers, regardless of their size, must provide Paid Sick Leave;
- Option 1: The Accrual Method – At the rate of one hour for every 30 hours worked; or
- Option 2: The Frontload Method – Provide your eligible employees with 24 hours or three days of paid sick leave at the beginning of each fiscal year.
- Paid Sick Leave MUST be paid at the “regular rate of pay” (which is different that the employee’s hourly rate);
- This will be a heavily litigated issue for anyone paying non-discretionary bonuses, commissions, shift premium, etc.
- This requirement applies to all employees working in California—whether part-time or full-time, temporary or permanent, exempt or non-exempt—with limited exceptions;
- Paid Sick Leave can be used for the employee’s medical needs, the medical needs of specified family members, or to obtain legal relief, medical attention or other services if the employee is a victim of domestic violence, sexual assault or stalking;
- Employers may cap the amount of Paid Sick Leave hours an employee can accrue to 48 hours or 6 days per year, and can limit the amount of Paid Sick Leave that can be used to 24 hours or 3 days per year; and
- Many localities have their own Paid Sick Leave rules (e.g., Los Angeles, Santa Monica, San Francisco, San Diego, Berkeley, Emeryville, Oakland, etc.), and employers must comply with both state and local laws.
Employers that may already face claims for failing to pay meal period and rest break premiums or overtime at the regular rate of pay are especially vulnerable to sick pay claims, since it is an easy add-on argument. Check now to ensure that the company’s payroll is set up to pay sick hours at the regular rate of pay; otherwise, you will pay for it later. An ounce of prevention beats a pound of cure.
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