San Anselmo Chamber

3rd Quarter 2015 • SanAnselmoNetworkSuccess 12 re quir ed b y law , it can waiv e or shor ten the pr obation ar y period. er e' s a se cond wrinkle with ne w hir es: the emp lo ye r has a choice to pick the last day that the employee can use "this year's" banked leave days. Since the employee is entitled at minimum to three days every 12 months, the last allowable date of use is the day before the employee's anniversary with the employer. However, for convenience, the employer can simply use the same turnover date as other employees, July 1 in our example. is would make June 30 the last day of allowable use. It is allowable, again, because it is more generous than the statutory scheme. e new employee is effectively given more than three days of leave a year since the turnover date comes up in less than 12 months, but it's a lot easier to administer than different PSL turnover dates for every employee. ose of you who don't do work in San Francisco or Oakland should stop here, under pain of the severe brain cramps that result from trying to administer three similar but different statues together. But if you do work in those cities, sorry, you have to continue. Also, Emeryville has just joined the list of local PSL jurisdictions, with a provision similar to San Francisco's and Oakland's, and its explanation of its new ordinance is here: http://www.ci.emeryville. ca.us/1024/Minimum-Wage- Ordinance; I may explore it more fully as part of a future printed column. All three local PSL cities use the accrual methodology, and in these locations, frontloaded plans have few, if any, advantages over the accrual method, simply because you'll always have to do accrual calculations for work performed there. e state program does not preempt local PSL ordinances, but instead requires employers to apply whichever law provides the greatest benefits to employees, so we really have a mix and match system. Locally, PSL ordinances currently exist in San Francisco, where PSL has been the law since 2007, Oakland, where it has been effective since March 2, 2015, and Emeryville, which joined the party effective July 2, 2015. None of these local laws contain any express provision on frontloading. When accrual is used, the state PSL law provides for up to three days to accrue per year at the rate of one hour for every 30 hours worked for the employer. e San Francisco ordinance also uses the formula of one hour for every 30 hours worked (although it starts 90 days after the date of hire), but the maximum annual accrual is 40 hours for employers with fewer than 10 employees per week—that's 10 employees total, not just those working in the City—and 72 hours for those with 10 or more. Accrual is in full hour increments,e.g., one leave hour after 30 hours, two after 60, and so on, with nothing added in between; there are no fractional leave days. Unused sick leave carries over from year to year. Unlike the state statute, the ordinance does not allow an employer policy to cap usage to three days per year, so all that has been accrued or carried over, up to the full 40 or 72 hours, can be used at any time. So how does this apply to a Marin-based employer? If it has employees who perform work in the City, the employees accrue leave for hours worked in San Francisco only if they perform 56 or more hours of work there within a calendar year. Examples might include a Marin law firm that sends an associate to the City to engage in a three-week jury trial, a delivery service with stops in the City, and a construction firm performing a San Francisco contract. Employees who work outside of San Francisco and who travel through, but do not stop in the City as a purpose of their work, are not covered by the ordinance. As with other statutes, the wage rate of sick leave is the regular wage rate, but not less than the City's minimum wage of $12.25. e Oakland ordinance is much like San Francisco's, uses the same formulas and carryover rules, and is subject to the same minimum wage. Also like San Francisco, and unlike the state PSL law, it under certain circumstances allows a covered employee without a spouse or registered domestic partner to designate one person for whom the employee may use paid sick leave to provide aid or care. Unlike San Francisco, employees are eligible to accrue paid sick leave if they work at least two hours per week in the City of Oakland and are not exempt from state minimum wage requirements; there is no 56-hour safe harbor. Oakland requires pertinent payroll and leave records to be retained for four years, while the state and SF require only three. Both Oakland and San Francisco (and Emeryville) have a required poster available on their websites to advise employees of their rights, so if you do work in all places, you'll have four postings: one for the state, and one for each city. Where this all gets very complicated is when you have to do the arithmetic combining the benefits for a given employee who works both in Marin and in one, two or all of the cities with a local PSL law. I think that leave that is frontloaded into employee banks under state law is credited against accruals under the three cities' laws. In other words, my best guess is that leave accruing in Oakland does not have to be added to an employee's bank until more than three days have accrued. But the courts could decide otherwise, and it thus might be safer to forego frontloading and use the accrual method instead, with accruals continuing for employees working in the local PSL law cities after the state cap is met. In any event, your written policies should expressly note that local ordinances will be applied instead of the state rules when they are more generous. ere's another accounting issue, too. Neither the San Francisco nor the Oakland measures have a requirement that employees be advised of the status of their PSL bank on their paystub or equivalent document. But the state law does, and its language appears broad enough to cover not only leave generated under the state statue, but the local laws as well. Given that, if you have employees who have previously accrued leave in either city that should appear on their paystubs from July 1 on, along with any leave accruing later under state or local law. As you'd expect, there are a lot of penalties under this devil's stew of laws. Looking just at the state law, there's a civil penalty of up to $10,000 for each violation of the Labor Code, and this will surely be invoked in retaliation cases in which the employee is punished for exercising PSL rights. ere are specific penalties available for failure to give required notices. All of these will be discussed in my next printed column, so in the meantime, get your policies and notices out NOW! is article corrects an error in a previous column in which the sick leave accrual rate was misstated as one day for every 30 hours, rather than one hour for every 30 hours. PaidSickLeave Continued from page 11 "As you'd expect, there are a lot of penalties under this devil's stew of laws. "

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