Berkeley Municipal Code Ch. 13.100 Paid Sick Leave

This Chapter shall be known as the "Paid Sick Leave Ordinance." (Ord. 7505-NS § 2 (part), 2016)

Paid sick leave provides employees protection against loss of income during absences from work due to illness or injury to themselves, a family member or another designated person that requires direct care by the employee. Sick leave is intended to be used only for the purposes set forth herein.

Paid sick leave benefits both the individuals receiving the benefit and their families, as well as community public health. Many workers without paid sick leave choose to go to work while ill to avoid a reduction in their paychecks and threat to job security. As a result, the Centers for Disease Control and Prevention and other public health researchers have linked the lack of paid sick leave with the transmission of illness. Sick workers may infect their coworkers and members of the public in the workplace, on public transit, and in between. Studies have also found that workers with paid sick leave are more likely to access preventative health care. (Ord. 7505-NS § 2 (part), 2016)

The following terms shall have the following meanings:

A. "City" shall mean the City of Berkeley.

B. "Employer" shall mean any person, including corporate officers or executives, as defined in Section 18 of the California Labor Code, who directly or indirectly through any other person, including through the services of a temporary employment agency, staffing agency, subcontractor or similar entity, employs or exercises control over the wages, hours or working conditions of any Employee, or any person receiving or holding a business license through Title 9 of the Berkeley Municipal Code.

C. "Employee" shall mean any person who:

1. In a calendar week performs at least two (2) hours of work for an Employer within the geographic boundaries of the City; and

2. Qualifies as an employee entitled to payment of a minimum wage from any employer under the California minimum wage law, as provided under Section 1197 of the California Labor Code and wage orders published by the California Industrial Welfare Commission, or is a participant in a Welfare-to-Work Program.

D. "Paid Sick Leave" shall have the meaning defined in California Labor Code §233(b)(4) as follows: "Sick leave means accrued increments of compensated leave provided by an Employer to an Employee as a benefit of the employment for use by the Employee during an absence from the employment for any of the following reasons specified in 13.100.040.B of this Chapter. "Sick leave" does not include any benefit provided under an Employee welfare benefit plan subject to the federal Employee Retirement Income Security Act of 1974 (Public Law 93-406, as amended) and does not include any insurance benefit, workers’ compensation benefit, unemployment compensation disability benefit, or benefit not payable from the Employer’s general assets", except that the definition here extends beyond the Employee’s own illness, injury, medical condition, need for medical diagnosis or treatment, or medical reason, to also encompass time taken off work by an Employee for the purpose of providing care or assistance to other persons, as specified further in 13.100.040(B)(2), with an illness, injury, medical condition, need for medical diagnosis or treatment, or other medical reason.

E. "Small Business" shall mean, for the sole purpose of interpreting this Chapter, an Employer for which fewer than twenty-five persons work for compensation during a given week. In determining the number of persons performing work for an Employer during a given week, all persons performing work for compensation on a full-time, part-time, or temporary basis shall be counted, including persons made available to work through the services of a temporary services or staffing agency or similar entity. (Ord. 7505-NS § 2 (part), 2016)

A. Accrual of Paid Sick Leave.

1. Employees who have accrued Paid Sick Leave under current California law prior to October 1, 2017 shall continue to accrue and use such Paid Sick Leave consistent with current California law. Employees who have not accrued Paid Sick Leave under current California law by October 1, 2017 shall begin to accrue Paid Sick Leave on October 1, 2017, or at the commencement of employment with the Employer, whichever is later.

2. For every 30 hours worked after Paid Sick Leave begins to accrue for an Employee, the Employee shall accrue one hour of Paid Sick Leave. Such leave shall accrue only in hour-unit increments; there shall be no accrual of a fraction of an hour of such leave.

3. For Employees of Small Businesses, there shall be a cap of 48 hours of accrued Paid Sick Leave. For Employees of other Employers, there shall be a cap of 72 hours of accrued Paid Sick Leave. Accrued Paid Sick Leave for Employees carries over from year to year (whether calendar year or fiscal year), but shall not exceed the aforementioned caps. Nothing herein precludes an Employer from establishing a higher cap or no cap on the number of accrued hours.

4. If an Employer has a paid leave policy, such as a paid time off policy, vacation, or other paid leave policy that makes available to Employees an amount of paid leave that may be used for the same purposes as Paid Sick Leave under this Chapter and that is sufficient to meet the requirements for accrued Paid Sick Leave as stated in subsections (A) and (B), the Employer is not required to provide additional Paid Sick Leave.

5. An Employer is not required to provide financial or other reimbursement to an Employee upon the Employee’s termination, resignation, retirement, or other separation from employment, for accrued Paid Sick Leave that the Employee has not used.

6. The rate of pay shall be the Employee’s hourly wage. If the Employee in the 90 days of employment before taking accrued sick leave had different hourly pay rates, was paid by commission or piece rate, or was a nonexempt salaried Employee, then the rate of pay shall be calculated by dividing the Employee’s total wages, not including overtime premium pay, by the Employee’s total hours worked in the full pay periods of the prior 90 days of employment.

B. Use of Paid Sick Leave.

1. An Employee may begin using Paid Sick Leave 90 calendar days after commencement of employment.

2. An Employee may use Paid Sick Leave not only when they are ill or injured or for the purpose of the Employee’s receiving medical care, treatment, or diagnosis, as specified more fully in California Labor Code § 233(b)(4), but also to aid or care for the following persons when they are ill or injured or receiving medical care, treatment, or diagnosis: child, parent, legal guardian or ward, sibling, grandparent, grandchild, and spouse, registered domestic partner under any state or local law, or designated person. "Child" includes a child of a domestic partner and a child of a person standing in loco parentis. The Employee may use all or any percentage of their Paid Sick Leave to aid or care for the aforementioned persons. The aforementioned child, parent, sibling, grandparent, and grandchild relationships include not only biological relationships but also relationships resulting from adoption; step-relationships; and foster care relationships.

3. If the employee has no spouse or registered domestic partner, the employee may designate one person as to whom the employee may use paid sick leave to aid or care for the person. The opportunity to make such a designation shall be extended to the employee no later than the date on which the employee has worked 30 hours after paid sick leave begins to accrue pursuant to Section 13.100.040.A.2. There shall be a window of 10 work days for the employee to make this designation. Thereafter, the opportunity to make such a designation, including the opportunity to change such a designation previously made, shall be extended to the employee on an annual basis, with a window of 10 work days for the employee to make the designation.

4. An Employer may not require, as a condition of an Employee’s taking Paid Sick Leave, that the Employee search for or find a replacement worker to cover the hours during which the Employee is on Paid Sick Leave.

5. If the need for paid sick leave is foreseeable, the Employee shall provide reasonable advance notification. If the need for paid sick leave is unforeseeable, the Employee shall provide notice of the need for the leave as soon as practicable.

6. An Employer may lend paid sick days to an Employee in advance of accrual, at the Employer’s discretion and with proper documentation of Paid Sick Leave lent and accrued.

7. An Employer may only take reasonable measures to verify or document that an Employee’s use of Paid Sick Leave is lawful, and shall not require an Employee to incur expenses in excess of $15 in order to show their eligibility for such Paid Sick Leave.

8. An Employer shall provide payment for sick leave taken by an Employee no later than the payday for the next regular payroll period after the sick leave was taken.

9. No Employer that is not a Small Business may limit the accrual or use of Paid Sick Leave except as specified in this Chapter. A Small Business may limit the use of Paid Sick Leave to 48 hours per calendar year.

10. It shall be unlawful for any Employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under or in connection with this section, including, but not limited to, by using the taking of earned sick time under this section as a negative factor in any employment action such as evaluation, promotion, disciplinary action or termination, or otherwise subjecting an Employee to discipline for the use of earned sick time under this section. (Ord. 7505-NS § 2 (part), 2016)

To the extent required or allowed by state or federal law, all or any portion of the applicable requirements of this Chapter may be waived in a bona fide collective bargaining agreement, provided that such waiver is explicitly set forth in such agreement in clear and unambiguous terms. (Ord. 7505-NS § 2 (part), 2016)

A. Every Employer shall post in a conspicuous place at any workplace or job site in the City where any Employee works, the notice published each year by the City informing Employees of their Paid Sick Leave rights under this Chapter. Every Employer shall post such notices in any language spoken by at least five percent of the Employees at the work-place or job site. In instances where an Employee does not have a regular physical location where they perform their work, the Employer shall provide a copy of the Paid Sick Leave public notice to the Employee when they are hired or assigned to complete work within the City of Berkeley. The notice shall be provided to the employee before they commence work within the City limits and must be provided in the language most easily comprehended by the Employee. Failure to post such notice shall render the Employer subject to administrative citation pursuant to Section 13.100.080.B of this Chapter.

B. Employers shall retain payroll records pertaining to Employees for a period of four years, and shall allow the City access to such records, with appropriate notice and at a mutually agreeable time, to monitor compliance with the requirements of this Chapter. Where an Employer does not maintain or retain adequate records documenting accrued paid sick leave or does not allow the City reasonable access to such records, the Employee’s account of how much they were paid shall be presumed to be accurate, absent clear and convincing evidence otherwise. Furthermore, failure to maintain such records or to allow the City reasonable access shall render the Employer subject to administrative citation, pursuant to Section 13.100.080.B of this Chapter. Such records shall include the amount of hours worked, wages paid, and Paid Sick Leave accrued.

C. If a violation of this Chapter has been finally determined, the City shall require the Employer to post public notice of the Employer’s failure to comply in a form determined by the City. Failure to post such notice shall render the Employer subject to administrative citation, pursuant to Section 13.100.080.B of this Chapter.

D. Reporting of Paid Sick Leave. Employers shall include the number of hours of Paid Sick Leave accrued to date in such records that they provide to Employees at the end of each pay period. Failure to provide such records shall render the Employer subject to administrative citation, pursuant to Section 13.100.080.B, of this Chapter. (Ord. 7505-NS § 2 (part), 2016)

A. It shall be unlawful for an Employer or any other party to discriminate in any manner or take any adverse action (including action relating to any term, condition or privilege of employment) against any person in retaliation for exercising rights protected under this Chapter. Rights protected under this Chapter include, but are not limited to: the right to accrue and use Paid Sick Leave as specified; the right to file a complaint or inform any person about any party’s alleged noncompliance with this Chapter; and the right to inform any person of their potential rights under this Chapter or otherwise educate any person about this Chapter or to assist them in asserting such rights. Protections of this Chapter shall apply to any person who mistakenly, but in good faith, alleges noncompliance with this Chapter. Taking adverse action against a person within ninety (90) days of the person’s exercise of rights protected under this Chapter shall raise a rebuttable presumption of having done so in retaliation for the exercise of such rights. Failure to comply with this provision shall render the Employer subject to administrative citation, pursuant to Section 13.100.080.B of this Chapter. (Ord. 7505-NS § 2 (part), 2016)

A. The City shall be authorized to coordinate implementation and enforcement of this Chapter and may promulgate appropriate guidelines or rules for such purposes. Any guidelines or rules promulgated by the Agency shall have the force and effect of law and may be relied on by employers, employees, and other persons to determine their rights and responsibilities under this Chapter. Any guidelines or rules may establish procedures for ensuring fair, efficient, and cost-effective implementation of this Chapter, including supplementary procedures for helping to inform employees of their rights under this Chapter, for monitoring employer compliance with this Chapter, and for providing administrative hearings to determine whether an employer or other person has violated the requirements of this Chapter.

B. Where prompt compliance is not forthcoming, the City shall take any appropriate enforcement action to secure compliance, including but not limited to the following:

1. The City may issue an Administrative Citation pursuant to Chapter 1.28 of the Berkeley Municipal Code. The amount of this fine shall vary based on the provision of this Chapter being violated, as specified below:

(a) A fine of one thousand dollars ($1,000.00) may be assessed for retaliation by an Employer against an Employee for exercising rights protected under this Chapter for each Employee retaliated against.

b. A fine of five hundred dollars ($500.00) may be assessed for any of the following violations of this Chapter:

i. Failure to post notice of the Paid Sick Leave Ordinance

ii. Failure to provide notice of investigation to Employees

iii. Failure to post notice of violation to public

iv. Failure to maintain payroll records documenting accrual of Paid Sick Leave for four years; and

v. Failure to allow the City access to payroll records

(c) A fine equal to the total amount of appropriate remedies, pursuant to subdivision B. Any and all money collected in this way that is the rightful property of an Employee, such as back wages, interest, and civil penalty payments, shall be disbursed by the City in a prompt manner.

2. The City may initiate a civil action for injunctive relief and damages and civil penalties in a court of competent jurisdiction.

C. The City or any person aggrieved by a violation of this Chapter, any entity a member of which is aggrieved by a violation of this Chapter, or any other person or entity acting on behalf of the employee and all other employees affected by the employer’s violations or on behalf of the public as provided for under applicable state law, may bring a civil action in a court of competent jurisdiction against the Employer or other person violating this Chapter and, upon prevailing, shall be awarded reasonable attorneys’ fees and costs and shall be entitled to such legal or equitable relief as may be appropriate to remedy the violation including, without limitation, the payment of any back wages unlawfully withheld, the payment of an additional sum as a civil penalty in the amount of $50 to each Employee or person whose rights under this Chapter were violated for each day that the violation occurred or continued, reinstatement in employment and/or injunctive relief. Provided, however, that any person or entity enforcing this Chapter on behalf of the public as provided for under applicable state law shall, upon prevailing, be entitled only to equitable, injunctive or restitutionary relief to Employees, and reasonable attorneys’ fees and costs.

D. This Section shall not be construed to limit an Employee’s right to bring legal action for a violation of any other laws concerning wages, hours, or other standards or rights nor shall exhaustion of remedies under this Chapter be a prerequisite to the assertion of any right.

E. Except where prohibited by state or federal law, City agencies or departments may revoke or suspend any registration certificates, permits or licenses held or requested by the Employer until such time as the violation is remedied. The City shall not renew any such license of an Employer with outstanding violations, as finally determined under this Chapter, until such time as the violation is remedied.

F. The remedies for violation of this Chapter include but are not limited to:

1. The issuance of Paid Sick Leave time unlawfully withheld.

2. Reimbursement of the City’s administrative costs of enforcement and reasonable attorney’s fees.

3. If a repeated violation of this Chapter has been finally determined, the City may require the Employer to pay an additional sum as a civil penalty in the amount of $50 to the City for each Employee or person whose rights under this Chapter were violated for each day or portion thereof that the violation occurred or continued, and fines imposed pursuant to other provisions of this Code or state law.

G. The remedies, penalties and procedures provided under this Chapter are cumulative and are not intended to be exclusive of any other available remedies, penalties and procedures established by law which may be pursued to address violations of this Chapter. Actions taken pursuant to this Chapter shall not prejudice or adversely affect any other action, civil or criminal, that may be brought to abate a violation or to seek compensation for damages suffered. (Ord. 7505-NS § 2 (part), 2016)

In undertaking the adoption and enforcement of this Chapter, the City is undertaking only to promote the general welfare. The City is not assuming, nor is it imposing on its officers and employees, an obligation for breach of which it is liable in money damages to any person who claims that such breach proximately caused injury. This Chapter does not create a legally enforceable right by any member of the public against the City. (Ord. 7505-NS § 2 (part), 2016)

If any part or provision of this Chapter, or the application of this Chapter to any person or circumstance, is held invalid, the remainder of this Chapter, including the application of such part or provision to other persons or circumstances, shall not be affected by such a holding and shall continue in full force and effect. To this end, the provisions of this Chapter are severable. (Ord. 7505-NS § 2 (part), 2016)

This Chapter provides minimum requirements pertaining to paid sick leave and shall not be construed to preempt, limit, or otherwise affect the applicability of any other law, regulation, requirement, policy, or standard that provides for greater accrual or use by employees of sick leave, whether paid or unpaid, or that extends other protections to employees. (Ord. 7505-NS § 2 (part), 2016)

This Chapter provides minimum requirements pertaining to paid sick leave and shall not be construed to prevent employers from adopting or retaining leave policies that are more generous than policies that comply with this Chapter. Employers are encouraged to provide more generous leave policies than required by this Chapter. (Ord. 7505-NS § 2 (part), 2016)