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Coast Employment Law
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Retaliation Claims Under California’s New Paid Sick Leave Law

SIgn sick leave

California introduced a number of new laws in 2015 governing the treatment of employees. One of these laws, which went into effect in July of last year, requires nearly all California employers to provide every employee with one hour of paid sick leave for every 30 hours worked. The new law, codified in California Labor Code § 245-249, notes that the employer does not need to inquire into or track the reasons that an employee is using sick days. Additionally, the law notes that employers are barred from denying use of accrued leave or retaliating against an employee who attempts to use accrued paid sick leave. Under the new law, an employee has a right to file a complaint for retaliation with the California Labor Commissioner if the employee requests to use paid sick leave and is denied unjustly. In fact, if an employee is denied the right to take sick leave, or is otherwise demoted, discriminated against, or retaliated against within 30 days of filing a complaint with the Labor Commissioner or engaging in another protected activity, there will be a “rebuttable presumption of unlawful retaliation” by the employer. This means that the employer will be required to prove that it did not retaliate against the employee, rather than the employee having to prove the unlawful conduct.

Certain California employers had questions about whether or not requiring a doctor’s note would be deemed permissible under the new law, or would subject them to complaints of retaliation. The Department of Industrial Relations has indicated in clarifying opinions that, since the law does not specifically allow for verification of illness in order to use paid sick leave, it would in fact constitute interference with an employee’s use of sick time to require employees to provide a note, and could result in an employee filing a retaliation claim. However, once an employee has used all their accrued paid leave, employers may once again have a right to require verification.

If you are an employer and have concerns as to whether your paid sick leave policy or accrual method is in compliance with the law, speak with a labor and employment attorney right away. While it may be that your company’s method of accounting for accrued sick leave is compliant under the law’s grandfather clause, the complex nature of that clause is such that obtaining a professional opinion on whether it is compliant is recommended.

If you are an employee facing discrimination or retaliation in the workplace, or an employer seeking to ensure that your policies are compliant with California’s host of new Labor Code sections, contact the experienced Tustin labor and employment attorneys at Coast Employment Law for a consultation, at 714-551-9930.

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