Ann Tran-Lien, JD
Managing Director of Legal Affairs
The Therapist
(January/February 2016)

Two major changes to California’s laws went into effect January 1, 2015 and require employers to afford employees, unpaid interns, and volunteers with certain workplace benefits and protections. This article provides general information about California’s new paid sick leave law and the new amendments to California’s law that prohibits unlawful discrimination and harassment in the workplace.

Paid Sick Leave (AB1522)
The Healthy Workplaces, Healthy Families Act of 2014 (found in California Labor Code Sections 245 to 249) imposes new paid sick leave requirements on California employers. Under this law, employers are required to provide paid sick leave to qualifying employees, which took effect July 1, 2015. Other requirements, such as posting and notice obligations, took effect January 1, 2015.

Qualifying for Sick Leave - To qualify for paid sick leave, an employee must: 1) work for the same employer, on or after January 1, 2015, for at least thirty (30) days within a year in California, and 2) satisfy a ninety (90) day employment period before using or taking any sick leave. A qualifying employee begins to accrue paid sick leave beginning on July 1, 2015. However, if the employee was hired after July 1, 2015, then the employee begins accruing sick leave on the first day of employment. Again, employees will not be able to use their accrued sick leave until the 90th calendar day of employment.

Paid sick leave accrues at the rate of one (1) hour per every thirty (30) hours worked. An employer may limit the amount of paid sick leave an employee can take in one year to twenty-four (24) hours or three (3) days and may cap the overall amount of sick leave an employee may accrue to six (6) days or forty-eight (48) hours.

Use of Sick Leave - An employee may use the paid sick leave by providing verbal or written notice to the employer. However, in a situation where the employee’s need to take sick leave is not foreseeable, the employee only needs to give notice as soon as practicable. CAMFT Code of Ethics, Section 1.3, provides Marriage and Family Therapists are aware of their professional and clinical responsibilities to provide consistent care to patients and maintain practices and procedures that assure undisrupted care. Therefore, employed therapists or therapist volunteers who must take sick leave, whether short or extended, should consider how much notice can and should be provided to current patients to ensure that the patient’s care is not disrupted. If an employed therapist or volunteer must take unforeseeable sick leave, with no or minimal notice, it is recommended that the employer or supervisor notify patients, and if necessary, transition the patients to another clinician.

Reasons for Taking Sick Leave - According to the new law, an employee may take sick leave for him/herself, or a family member, for preventive care or care of an existing health condition and/or for specified purposes if the employee is a victim of domestic violence, sexual assault, or stalking. Family members include the employee’s parent, child, spouse, registered domestic partner, grandparent, grandchild, and sibling.

When sick leave is taken, the law requires the employer to pay the employee no later than the payday for the next regular payroll period after the sick leave was taken. The employee must be paid at his or her regular hourly rate. If the rate of pay fluctuates, the employer must divide the total compensation for the previous 90 days by the number of hours worked and pay the employee at that rate. An employer is not required to pay out accrued, unused paid sick days at the time of termination, resignation or retirement. If an employee is rehired within one year, previously accrued and unused paid sick days shall be reinstated.

Employer Documentation - The employer must account for the paid leave in the wage stub or in a separate itemized wage statement. The employee’s pay stub (or a document issued the same day as the paycheck) must show how many hours/days of sick leave are available to the employee. Also, employers must keep records showing how many hours the employee has earned and used for a period of (3) three years.

Posting Notice - Employers are required to post in a conspicuous place at the workplace, a poster containing the following information: (1) that an employee is entitled to accrue, request, and use paid sick days; (2) the amount of sick days provided for and the terms of use of paid sick days; (3) that retaliation or discrimination against an employee who requests paid sick days or uses paid sick days or both is prohibited; and (4) that an employee has the right under this law to file a complaint with the Labor Commissioner against an employer who retaliates or discriminates against an employee. The poster is available on the Labor Commissioner’s website.1

Enforcement - The law prohibits an employer from denying an employee the right to use paid sick leave; discharging, threatening to discharge, demoting, or suspending an employee; and/or in any manner, discriminating against an employee. If an employer violates the new paid sick leave law, an employee may file a complaint with the Labor Commissioner. If an employer is found to have taken any of the prohibited actions, the employee may be awarded the following: reinstatement (if terminated); lost wages (if suspended or terminated); removal of any disciplinary action from personnel file; and a civil penalty of up to $10,000 per violation. An employee may also recover an administrative penalty equal to the paid sick leave multiplied by three or $250 whichever is greater, but in no case greater than an aggregate penalty of $4,000. The administrative penalty may also include a sum of $50 per day for each day the violation occurred or continued.

For more information about the new paid sick leave law, visit the Department of Industrial Relations’ website at www.dir.ca.gov/DLSE/ ab1522.html.

Unpaid Interns and Volunteers Protected From Harassment (AB1443)
Government Code Section 12940, which is a part of the California Fair Employment and Housing Act (FEHA), prohibits unlawful discrimination and harassment in the work place. The law prohibits employers from discriminating against or harassing employees on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.

Although the CAMFT Code of Ethics² has long provided that LMFT employers and supervisors do not engage in sexual or other harassment of students, supervisees, employees, or colleagues, California law did not extend the protection to unpaid interns and volunteers until AB1443 was signed by the Governor in 2014. AB1443, effective January 1, 2015, amends the law by adding “unpaid interns or volunteers” to the list of individuals protected from workplace harassment.

Application of the Law - The law’s anti-harassment provisions generally apply to all employers with only one or more employees. The law’s anti-discrimination provisions generally apply to all employers with five or more full-time or part-time employees. The law does not apply to nonprofit religious corporations that are formed primarily or exclusively for religious purposes. However, California nonprofit corporations that provide health care services to the public on behalf of a religious organization are subject to the anti-harassment provisions of the law.

Enforcement - Employees, interns, and volunteers who believe that they have been sexually harassed may file a complaint of discrimination with the Department of Fair Employment and Housing (“DFEH”) within one (1) year of the harassment. If DFEH finds sufficient evidence to establish that discrimination occurred and settlement efforts fail, DFEH may file a formal accusation. The accusation will lead to either a public hearing before the Fair Employment and Housing Commission or a lawsuit filed by DFEH on behalf of the complaining party. If the Commission finds that discrimination has occurred, it can order remedies including, but not limited to fines; damages for emotional distress; reinstatement (if terminated); back pay; and changes in the employer’s policies and practices. Employees, interns, and volunteers can also pursue the matter through a private lawsuit.

For more information about the state’s anti-harassment law, visit the DFEH’s website at http://www.dfeh.ca.gov/Publications_ FEHADescr.htm.

Conclusion
Employers are recommended to make the necessary changes as required by these new laws in their policies, procedures, practices, and/or employee handbooks immediately. Not only does the law require compliance, LMFTs who act as employers and supervisors have an ethical responsibility to follow business practices and employer policies when employing and/or supervising interns.3 Employers who need independent legal advice regarding implementing these changes should consult with an attorney who specializes in employment law.

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Ann Tran-Lien, JD, is a staff attorney and the Managing Director of Legal Affairs at CAMFT. Ann is available to answer member calls regarding legal, ethical, and licensure issues.

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Endnotes
1 http://www.dir.ca.gov/DLSE/Publications/Paid_Sick_Days_ Poster_Template_(11_2014).pdf
2 CAMFT Code of Ethics, Part I, Section 3.8
3 CAMFT Code of Ethics, Part I, Section 4.9