Go to navigation Go to content
Phone: 619-304-1000
The Turley Law Firm P.C.

Everything you need to know about California Paid Sick Leave Law ... Can I sue my employer for violating California Sick Leave laws?

Comments (0)

California Wage Lawyer Straight Talk - the straight talk about California Paid Sick Leave Laws

“I give you an insider’s view of California wage laws. I don’t sugar coat it for you. I give it to you straight. No lawyer talk, no double talk. Just good old fashioned, unsweetened truth. it's why I'm asked to testify before the California Legislature on wage law”
California Wage Lawyer Bill Turley
 
Ok. I know I try and make California wage law easy to understand. I try to explain things without legal mumbo-jumbo. I really do. I pride myself on my “No B.S.” approach to the law. That is, on giving it to you straight. 
 
But, when the company is keeping workers from enforcing their rights under the California Labor Code and/or California Wage Orders with legal mumbo jumbo, it’s hard not to get caught up in it all.
 
Ok I’m going to try and explain this all in easy to understand language. But, I am trying to explain legal reasoning that results in folks not being able to enforce their right to sick pay under California law. That, is in effect, based upon legal mumbo-jumbo.
 

In this article we answer the following questions and/or cover the following issues relating to California sick pay laws:

How much paid sick leave do I get per year?

Can you carry-over sick pay from one year to the next year?

What is the pay rate for sick pay?

What is the eligibility for sick pay?

Does the employer have to pay out my sick leave upon termination?

How do I know how much sick pay I’m owed?

Can I bring a lawsuit if the company violates California sick pay laws?

California sick pay law - what the potential problem is all about

The problem is centered around this part of California’s sick pay law:

The Labor Commissioner can enforce California sick pay laws

“...however...” - here is the issue with enforcing California sick pay laws

But, wait - it can be worse

These cases aren't binding (what that means)

ZB, N.A. v. Superior Court (Lawson)

What does the Lawson California Supreme Court case have to do with sick pay?

If I signed an arbitration agreement, can I enforce my rights for California sick pay?

The bottom line

The practicalities of bringing a paid sick pay case in California

How much paid sick leave do I get per year?

At a minimum, California law requires 24 hours (or 3 days) of paid sick leave per year for full-time employees. Employees earn a minimum of 1 hour of paid leave for every 30 hours worked. California Labor Code Section 246.
 

Can you carry-over sick pay from one year to the next year?

Yes. You can carry-over up to 48 hours to the following years.
 

What is the pay rate for sick pay?

The pay rate for California sick leave is your regular rate of pay.
 

What is the eligibility for sick pay?

Full-time and part-time employees who work more than 30 days in the state are eligible to use their accrued sick leave after 90 days.
 

Does the employer have to pay out my sick leave upon termination?

No, unused sick pay does not need to be paid out upon termination.
 

How do I know how much sick pay I’m owed?

Employers are required to put on your pay-stub (or a separate paper each pay period), the amount of sick pay that you have earned, that is owed to you.
 

Why is Bill Turley asked to testify concerning wage law legislation at the California State Senate and the California Assembly?

Bill Turley - testifies on PAGA laws - What are my right to seating at work?

A No B.S. straight-shooter lawyer

Believe it or not, Bill Turley is known for being a no B.S. straight-up lawyer. Besides being known as one of the leading experts on this area of the law in California, one of the reasons why Bill is asked to testify at legislature hearings is because he is known for being straight-forward and blunt. He is known for being no B.S., with no lawyer-talk, no double-talk.

Can I bring a lawsuit if the company violates California sick pay laws?

This is the legal mumbo-jumbo that I’m talking about here.  I suggest that you read on...

 
California sick pay law - what the potential problem is all about

You’re going to see a lot of flowery articles on the Internet about California’s sick pay law. Unfortunately, there is a potential glitch in California’s sick pay law and how to enforce California’s sick pay law.
 
 

The problem is centered around this part of California’s sick pay law:

The Labor Commissioner or the Attorney General may bring a civil action in a court of competent jurisdiction against the employer or other person violating this article and, upon prevailing, shall be entitled to collect legal or equitable relief on behalf of the aggrieved as may be appropriate to remedy the violation, including reinstatement, backpay, the payment of sick days unlawfully withheld, the payment of an additional sum, not to exceed an aggregate penalty of four thousand dollars ($4,000), as liquidated damages in the amount of fifty dollars ($50) to each employee or person whose rights under this article were violated for each day or portion thereof that the violation occurred or continued, plus, if the employer has unlawfully withheld paid sick days to an employee, the dollar amount of paid sick days withheld from the employee multiplied by three; or two hundred fifty dollars ($250), whichever amount is greater; and reinstatement in employment or injunctive relief; and further shall be awarded reasonable attorney’s fees and costs, provided, however, that any person or entity enforcing this article on behalf of the public as provided for under applicable state law shall, upon prevailing, be entitled only to equitable, injunctive, or restitutionary relief, and reasonable attorney’s fees and costs.
California Labor Code Section 248.5(e). (Emphasis added).
 
As I explain, the problem here is everything after the "however."  
 

The Labor Commissioner can enforce California sick pay laws

Section 248.5(e) states that the Labor Commissioner can enforce California's sick pay laws. Which is ok. But.....
 

“...however...” - here is the issue with enforcing California sick pay laws

Which is good.  However...... the issue is with everything that comes after “however...”:
 
 ...however, that any person or entity enforcing this article on behalf of the public as provided for under applicable state law shall, upon prevailing, be entitled only to equitable, injunctive, or restitutionary relief, and reasonable attorney’s fees and costs.
California Labor Code Section 248.5(e).

If you bring a claim under the California sick leave law, you’re going to be limited to “equitable, injunctive, or restitutionary relief.”
 
Meaning, no wages. No 226 pay stub violations. No waiting time penalties.
 
You’re not going to get any of the powerful rights and remedies that you get under California Labor Code. 
 

But, wait - it can be worse

You might be thinking to yourself, but that’s ok, I can still bring a PAGA claim for violation of California’s sick pay laws.
 
There are two non-binding District Court cases that basically ruled that you can’t bring a PAGA case for violation of California sick pay laws.

Titus v. McLane Foodservice, Inc. (E.D. Cal.) 2016 BL 300414 (“Titus”). Stearne v. Heartland Payment Sys. LLC (E.D. Cal.) 2018 BL 40260 (“Stearne”).
Stearne concluded PAGA did not apply to section 246, because the last clause of section 248.5(e) does not permit individuals seeking to recover on behalf of the public from collecting penalties – relief is limited to equitable and restitutionary remedies.
 
Titis and Stearne basically concluded that there is no private cause of action/ private right of action for California sick pay law, because it limits relief to equitable and restitutionary remedies.
 
I didn’t think Titus and Stearne were correct when they when they were decided in 2016 and 2018, respectfully. And I certainly don’t think they are correct now.

It seems that the additional silver lining in the Larson case (ZB,N.A.) [in addition to making PAGA - -  U.S. Supreme Court proof, so to speak]  is that the Supreme Court holding that you can have a PAGA case even though there is no private cause of action...

These cases aren't binding (what that means) 

Since Titus and Stearne are district court cases, they aren't binding on any court. Meaning, no California court or the Ninth Circuit Court of Appeals has to follow these cases and/or the reasoning of these cases. 

ZB, N.A. v. Superior Court (Lawson)

When the California Supreme Court decided the Lawson case, the lawyers for the companies all said that the decision favored companies. Which, is partly true.
 
The Supreme Court in Lawson held that aggrieved employees in PAGA cases can only recover PAGA penalties. And, employees can’t recover wages under California Labor Code Section 558.
 
The company lawyers all declared the Lawson case a big victory for the companies.
 
While I can see how they would think this, I disagree. Here is why.
 
The U.S. Supreme Court has taken great satisfaction, it seems, in overruling the California Supreme Court. The U.S. Supreme Court has, in effect, used the AAA (arbitration) to shut down class action cases. If you haven't read this New York Times article on forced arbitration, I suggest that you do so. 
 
It is my belief that the California Supreme court was trying to make PAGA - arbitration proof. The Supreme Court realized that if workers could collect anything other than penalties (read: wages) in a PAGA case, that the U.S. Supreme Court would rule that PAGA cases are subject to arbitration.
 
Thus, in my view, the Lawson decision was really a pro-worker decision.
 

What does the Lawson California Supreme Court case have to do with sick pay?

Remember, that the District Courts in Titus and Stearne ruled that since there was no private right of action (also called a “private cause of action”) for sick pay, that you can’t bring a PAGA case for sick pay.
 
The reason why the Titus and Stearne courts are wrong is because the California Supreme Court held that there was no private cause of action under 558 (just like the sick pay - Labor Code Section 248.5(e)) - but workers can still bring a PAGA case for penalties under 558:

"...section 558 has no private right of action. Nor can employees recover the unpaid wages described in section 558 in a PAGA claim—even though section 558 permits the Labor Commissioner to include that amount in a citation." ZB, N.A. v. Superior Court ( Lawson), 8 Cal. 5th 175, 197-198 (2019).
 
Thus, I think that you can bring a PAGA case for sick pay cases, even though there is no private cause of action... and LC 248.5 limiting the remedy in equitable, injunctive and restitutionary relief... doesn’t prevent workers from bringing a PAGA case under violations of the sick pay laws.   


If I signed an arbitration agreement, can I enforce my rights for California sick pay?

The short answer, it no... unless you bring a PAGA case If you signed an arbitration agreement - you aren’t going to be able to enforce your right to California sick leave pay - - unless you bring a successful PAGA case.

The bottom line

If you bring an individual case or a class action case based upon the company violating California’s sick pay law, you are going to be stuck with equitable, injunctive and restitutionary relief. 
 
In other words, no wages, no paystub violations, no waiting time penalties. Not good.
 
Your only hope in getting winning a sick pay case, sure seems to be by bringing a PAGA case.
 
There are no cases directly on point, but there are two District Courts that have held that you can’t bring a PAGA claim for violation of sick pay laws. (See above). 
 
However, these cases were decided before the Lawson California Supreme Court decision.
 

The practicalities of bringing a paid sick pay case in California

 
With most California wage claims, when you bring a PAGA claim, you usually have a whole host of PAGA violations. The penalties really start to add up when you’re talking $200 per pay period, per employee, for each separate PAGA violation.
 
Whether you can do this for violation of California sick pay laws (even if you can bring a PAGA case) remains to be seen. 
 
From my perspective, based upon the “what-if’s” - it is probably better to bring the sick pay case when you either have additional potential causes of action or a large employer with a lot of aggrieved employees that have had their sick pay laws violated.
 
Getting my wage case settlement check!

Getting my wage case settlement check!!!

 

Questions or if you need help right now?


Call us at 619-304-1000
 
Text us at 858-281-8008
 
Chat with us on this website.
 
Or leave us a message on this webpage
 
 
 
This article isn't legal advice
 
These discussions and/or examples are not legal advice. All legal situations are different. These testimonials, endorsements, photos and/or discussions do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter, your particular case/ situation. Every case is different. There are any number of reasons why class actions are not certified, not won and/or PAGA actions are not successful.
 
Just because we have gotten great results in so many other unpaid wage cases, doesn't guarantee in particular result in other cases. Including, your wage case. Every case is different. In other words, your mileage may vary.
William Turley
Connect with me
“When I seek out professional advice, I don’t want B.S., I want it straight up. I figure you do also.”
Be the first to comment!

Post a Comment

To reply to this message, enter your reply in the box labeled "Message", hit "Post Message."

Name:*

Email:* (will not be published)

Message:*

Notify me of follow-up comments via email.