Employment Law Navigator: 09/26/14

Friday, September 26, 2014

It’s Official – Paid Sick Leave for California Employees in 2015

Over the last few months, paid sick leave laws and ordinances have been passed by city councils and state legislatures. Connecticut was the first state to enact such a measure, and now cities including Newark, Eugene, New York City, and Washington, D.C., have implemented or expanded paid sick leave requirements. We’ll keep an eye on the trend, and as always we’ll look to the trendsetter state of California:

As of July 1, 2015, virtually all California employers will be required to provide at least 3 days or 24 hours of paid sick leave annually to each of their employees. California is the second state to mandate paid sick leave for employees, following Connecticut.

Who is covered? All employers, regardless of number of employees, and all employees, whether part-time, full-time, exempt, non-exempt, or seasonal, are covered if they work at least 30 hours in a year for the employer. Some in-home support service providers are exempt, as are some employees covered by collective bargaining agreements.

What does it include? “Sick leave” includes time off work for (1) the diagnosis, care or treatment of an employee’s own health condition or preventive care, (2) an employee’s absence due to being a victim of domestic assault, sexual violence and/or stalking and (3) the diagnosis, care or treatment of a health condition or preventive care of an employee’s child (no limitations on age or dependency), spouse, parent, registered domestic partner, grandparent, grandchild or sibling.

How is it accrued? Employees accrue 1 hour of paid sick leave for every 30 hours worked. They must be allowed to use the sick leave in increments of no less than 2 hours. They cannot be required to use more than 2 hours at one time. Employers may “cap” the annual use at 3 days or 24 hours per year.

When can it be used? An employee must be allowed to use accrued sick leave beginning on the 90^th day of employment and whenever necessary thereafter. There are anti-retaliation provisions in the law. Requiring an employee to find a replacement worker is unlawful.

How is it paid? Employees must be paid sick leave in the pay period it is used. It must be paid at the employee’s normal rate of pay.

Does it carry over to the next year? Although employers may limit the annual use of sick leave to 3 days or 24 hours, they must allow employees to accrue and bank up to a maximum of 6 days or 48 hours of paid sick leave. There is an exception if the employer opts to provide 3 days of paid sick leave at the beginning of each calendar or anniversary year.

As would be expected, there are notice, record-keeping and posting requirements in the law, and regulations will be coming out. Watch this space for developments.

Posted by: Sarah Mott

SnapChat Recruiting: More Scary HR Tech Issues?

On Wednesday, during Thompson Information Services' #hrintelchat on social media in the workplace, the use of SnapChat as a recruiting tool came up. SnapChat is a social media tool where users can share photos or videos for a short period of time before the message disappears. Being self-proclaimed worry-wart management lawyers, the idea of a dissolving job announcement or resume keeps us awake at night.

Take for example, Sober Lane, an interestingly-named pub in Dublin. Sober Lane tweeted that it would only accept job applications using SnapChat, and recommended that applicants “Make an impression if you want a profession.” Sober Lane has gotten significant press over its recruiting tactics, but American employers should be careful about adopting its methods.

Why? As Eric B. Meyer so eloquently pointed out, employers have no obligation to keep recruiting records absent specific requirements (e.g. requirements for federal contractors, or knowledge of impending litigation). Nevertheless, most employers do keep such records. Recruiters’ records include job announcements, social media postings, applications, communications with candidates, interview notes, background checks, and much more. This information is kept so that if a recruitment ends up in controversy, records exist to support the employer’s decisions. Recruitment-related litigation includes issues of discrimination, breach of contract, violation of non-competition or misappropriation restrictions, or even negligent hiring (among others).

Employers and their lawyers often need recruitment records to defend against claims or charges of discrimination. Without documentation to back up the selection process, jurors may use their imaginations to fill in what happened – sometimes presuming that what the plaintiff argues happened was what actually happened. With recruiting over SnapChat, records that may be needed self-destruct after ten seconds, presumably dissolving into the ether never to be found again. Because the records existed and were seen, even for a few seconds, the failure to keep them for the moment that a judge or jury wants to see them creates credibility issues that could turn into liability issues.

SnapChat has amazing demographics and usage statistics, showing that it (and its competitors) could reach many potential applicants quickly on a trendy medium. Reaching as many applicants as possible and being social media savvy are both admirable goals, but the risk of being without essential records when faced with litigation needs to be carefully considered before jumping into the next big thing.

Posted by: Kate Bischoff