California law provides mandatory paid sick leave under the Healthy Workplaces, Healthy Families Act (the state law). You are required to comply with both the PSLO and the state law.

• Effective January 1, 2024, the state law overrides the following provisions in any local paid sick leave ordinance that is contrary to the state law:

• No requirement to pay out unused sick leave balances upon termination;
• Reinstatement of unused balances for employees rehired within a year;
• Employers’ ability to choose to advance paid sick leave prior to accrual;
• The requirement to set forth available balances on an employee’s wage statement or other writing accompanying the employee’s paycheck;
• The rate of pay at which paid sick leave must be paid;
• Requirements for notice for foreseeable and unforeseeable usage of paid sick leave;
• Timing of payment of paid sick leave when used.1

Otherwise, when the two laws differ, you must follow whichever is more generous to employees.

The PSLO establishes minimum requirements pertaining to BSL. You may provide more generous leave than the ordinance requires.

You can find more information regarding the PSLO at the city's website. You may provide more generous leave than the ordinance requires. You can also call at (510) 981-5405 or email Rules4work@cityofberkeley.info.

Employers Covered Under the Paid Sick Leave Ordinance

The PSLO applies to all employers, regardless of size. The PSLO applies to public and private employers and for-profit and not-for-profit companies.

"Employer" is defined by the PSLO as: "any person, including corporate officers or executives, as defined in Section 18 of the California Labor Code, who directly or indirectly or 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."2

If you already have a paid leave policy that makes the same amount of paid leave available and that can be used for the same purposes as BSL, you are not required to provide additional paid sick leave so long as your paid leave policy does not impose additional restrictions on use (for example, imposing additional notice or scheduling requirements).

Employees Entitled to the Benefit

A covered employee (employee) under the PSLO is any employee who works for at least two hours in one calendar week within the geographic boundaries of Berkeley and who is entitled to minimum wage under California state law.3 Part-time, full-time and temporary employees are covered. Exempt employees under California law, such as executive, administrative and professional employees and outside salespeople, are not entitled to minimum wage under California state law, and may not be covered by the definition of an “employee” in the PSLO. However, exempt employees are still covered by the state law. Employers considering not providing exempt employees with BSL are advised to consult legal counsel.

The PSLO does not apply to employees covered by a bona fide collective bargaining agreement if the PSLO requirements are expressly waived in clear and unambiguous terms.4

• The state law has different rules regarding employees covered by a collective bargaining including a requirement that employees will need to be afforded certain rights under the state law. For more information on how to treat employees with collective bargaining agreements under the state law, see the HR Library’s Employees Entitled to the Benefit page.

The PSLO does not change your obligation to comply with a contract, collective bargaining agreement, employment benefit plan, or other agreement that provides more generous sick leave to employees than required by the PSLO.

Calculating Leave — Employer Options

An employee working in Berkeley accrues one hour of BSL for every 30 hours worked, subject to any accrual cap.5 For more information, see "Cap on Accrual" on this page.

The only accrual option under the PSLO is one hour for every 30 hours worked. Employers wishing to use the "upfront allocation" method should consult with legal counsel to ensure that their sick leave policy complies with both the PSLO and the state law.

The PSLO does not include an option for you to provide all the required sick leave to employees in an annual lump sum without providing additional sick leave throughout the year.

These important conditions apply to accrual:

• New employees begin to accrue BSL immediately and may begin using it no later than their 90th day of employment.
• BSL accrues in hour-unit increments.6
• Employees accrue BSL on all hours worked in Berkeley, including overtime hours. To comply with both the ordinance and the state law, employees must accrue sick leave on every hour worked, regardless of location.
• Any unused BSL must carry over to the following year of employment.7 However, you may cap the employee's total accrued BSL. For more information, see "Cap on Accrual" on this page.

• The state law does not expressly prohibit fractional hour accrual in the manner BSL does. In order to provide the most beneficial provisions of the state law and BSL, employers using the one hour for every 30 hours worked accrual method should allow for fractional accrual.

Cap on Accrual

Unless you want to allow an employee to accrue unlimited BSL, you should consider placing a cap on the maximum amount of BSL that can be accrued. Any cap on accrual should be in writing and communicated to employees.

The PSLO states that there shall be a cap on accrued BSL as follows:8

• Small businesses (businesses with fewer than 25 employees, in any location): 48 hours.
• Businesses with 25 or more employees: 72 hours.

• Effective January 1, 2024, the state law requires employers to allow employees to accrue up to 80 hours or 10 days of paid sick leave, whichever is greater. If you are covered by BSL, you may no longer utilize the BSL accrual caps but must follow state law.

You may choose a more generous accrual cap if desired.

The accrual cap is a "floating" cap, not an annual cap. Whenever an employee's accrued BSL drops below the accrual cap due to usage, the employee begins to accrue BSL again at the rate of one hour for every 30 hours worked.

Permissible Usage

Employees must be allowed to use BSL for any of the following reasons:9

• When an employee is ill or injured, or for the purpose of receiving medical care, treatment, or diagnosis, or
• To aid or care for a covered family member, as described below, who is ill or injured or receiving medical care, treatment or diagnosis.

The state law allows employees to use sick leave for some purposes not covered by the PSLO, such as for jury duty or witness leave, and for certain purposes when an employee or a covered family member is the victim or crime or abuse. To comply with both laws, you must allow employees to use their BSL for all the purposes identified by both laws. For more information about the purposes for which an individual may use sick leave under state law, see the HR Library's Permissible Usage page.

For purposes of BSL, a covered "family member" includes:10

• A child, defined as a biological, foster or adopted child; a stepchild; or a legal ward regardless of the age or dependency status of the child. "Child" also includes a child of a domestic partner or a child to whom the employee acts as a parent, even if the child is not the employee's legal child;
• A parent, defined as a biological, foster, or adoptive parent; a stepparent; or a legal guardian;
• A sibling, including biological, adoptive, foster, and step-relationships;
• A grandparent, including biological, adoptive, foster, and step-relationships;
• A grandchild, including biological, adoptive, foster, and step-relationships;
• A spouse;
• A registered domestic partner; or
• A designated person the employee names in advance on a form provided for this purpose, if the employee does not have a spouse or registered domestic partner.
• Within 30 hours after BSL begins to accrue, employees must be given a window of 10 work days to make the designation. Employees must be provided an annual opportunity to change the designation, with a window of 10 work days to do so.

The state law allows employees to use paid sick leave to care for a “designated person,” which is more broadly defined than the BSL and can be any person identified by the employee at the time the employee requests sick leave. Additionally, the state law allows employees to use sick leave for some family members not covered by the ordinance, such as the “parent” of a spouse or registered domestic partner, or a person who acted as a parent to the employee when the employee was a child. To comply with both laws in a single policy, you must allow employees to use their sick leave for the family members identified by both laws.

For more information about a “designated person” under the state law, see Permissible Usage.

An employee may use the full amount of accrued BSL for a covered family member.

Parameters of Berkeley Sick Leave Use

There are important points regarding how employees may use BSL:11

• The PSLO allows only small businesses (businesses with fewer than 25 employees in any location) to limit an employee's use of BSL to 48 hours per year. This limitation applies even if the employee has accrued more than 48 hours of BSL. You can choose a more generous limit if desired, but it cannot be less than 48 hours.
• The state law allows employers to limit the number of hours of sick leave an employee can use each year to 40 hours or five days, whichever is greater. If you have employees who regularly work at least 10 hours per day, their limit on use may need to be higher to ensure that the limit on use is no less than the equivalent of five of the employees’ workdays.
• For businesses with 25 or more employees, the PSLO does not allow you to limit an employee's use of BSL to anything less than the amount of BSL the employee has accrued. Although state law allows employers to maintain a usage cap, this BSL is more generous to employees and employers with 25 or more employees may not impose any usage cap on any employee covered by BSL.
• BSL must be provided upon an employee's oral or written request. Employees must provide reasonable advanced notice if the paid sick leave is planned or "as soon as practicable" if the need for leave is unforeseeable.
• You cannot require an employee to find a replacement worker to cover the hours during which the employee will be using BSL.
• Under the PSLO, you may take "reasonable measures" to verify or document that an employee's use of BSL is lawful. However, you cannot require medical documentation under the state law. To comply with both laws, you should not request medical documentation.

Paying Employees for Berkeley Sick Leave

BSL is paid at the employee's hourly wage. For employees with different hourly pay rates, employees paid by commission or piece rate or nonexempt salaried employees, calculate BSL 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.12

BSL may not be paid at less than minimum wage in any circumstance.

• Effective January 1, 2024, the state law requires employers to utilize the state law calculation methods. You may no longer utilize the BSL calculation methods. For more information on how to calculate the rate of pay for paid sick leave see the HR Library’s Paying the Employee for the Sick Day page. No matter which state law method you choose, you must pay employees for BSL no later than the payday for the next regular payroll period after the BSL was taken.13

Employee Separation and Reinstatement

Unlike accrued, unused vacation or paid time off (PTO) — which is treated like wages — BSL does not need to be paid out to the employee upon separation of employment (i.e., there is no requirement to "cash-out" BSL at termination, resignation, retirement or other separation from employment).14

However, previously accrued, unused BSL that was not paid out at separation must be reinstated if an employee is rehired within one year, in accordance with the state law requirements.

Posting, Notice, and Recordkeeping Requirements

The PSLO contains posting, notice and recordkeeping requirements.15 You will need to pay close attention to these obligations.

Posting and Notice

The PSLO requires you to post a notice, developed by the city, to inform employees of their rights. The notice must be posted in a conspicuous place at any workplace or job site in the city where employees work. You must post the notice in any language spoken by at least 5 percent of the employees at the workplace or job site. For employees who do not have a regular physical location where they perform their work, you must provide a copy of the notice to the employee when they are hired or assigned to perform work in Berkeley.16

The current Berkeley Official Notice, in all applicable languages, is part of CalChamber's Berkeley Labor Laws Poster.

• Berkeley Labor Laws Poster

The state law requires you to display a Healthy Workplaces/Healthy Families Act of 2014 Paid Sick Leave Notice. This notice is part of CalChamber's California and Federal Labor Law Posters.

• California and Federal Labor Law Posters

You must display both notices.

New Employees

For employees who do not have a regular physical location where they perform their work, you must provide a copy of the notice to the employee when they are hired or assigned to perform work in Berkeley.17 state law requires you to provide the Wage and Employment Notice to Employees(Labor Code section 2810.5) at the time of hire to all nonexempt employees, and this notice contains information on sick leave. More information about the notice can be found at New Employee Orientation.

Payday Notice

Each pay period, you must also provide an employee with an itemized wage statement or other written document accompanying their wages that notifies the employee of the amount of BSL accrued to date.18

Recordkeeping

To comply with the PSLO, you must maintain records documenting hours worked by employees and BSL taken by employees for a period of four years, which is longer than the three-year minimum requirement under the state law. You must allow the city access to the records, with appropriate notice and at a mutually agreeable time, to monitor compliance with the PSLO. If you do not keep adequate records, or you do not allow the city reasonable access to the records, the employee's account of how much they were paid will be presumed to be accurate. You will have to offer evidence to rebut this presumption.19

Enforcement

The city enforces the PSLO.20 If the city determines that an employer violated the PSLO, the city may issue an administrative citation with a fine of up to $500 for failing to post any required notice, failing to maintain payroll records or failing to allow the city access to the records. The city may issue a fine of $1,000 if the Department determines that the employer retaliated against an employee. For more information, see "Retaliation" on this page. The citation may also include a fine equal to the total amount of appropriate remedies. For repeated violations, the city may require a civil penalty, payable to the city, of $50 for each employee whose rights were violated for each day the violation occurred.21 The city also may to take other enforcement actions, such as revoking or suspending permits or licenses until the violation is remedied.22

In addition, aggrieved employees, the city, an entity acting on behalf of a member who is an aggrieved employee, or an entity or person acting on behalf of employees or the public, may file a civil lawsuit for any violation of the PSLO.23

Remedies for violations of the PSLO may include reinstatement, BSL time unlawfully withheld, Civil penalties in the amount of $50 owed to each employee for each day that the violation occurred in addition to fines, interest on amounts owed; attorneys' fees and costs; and reimbursement of the city’s administrative enforcement costs.24

If a violation of the PSLO is finally determined, the city will require the employer to post a public notice of the compliance failure.25

Retaliation

The PSLO protects employees against retaliation for exercising any rights under the PSLO.26 For example, employees have the right to use BSL, file formal complaints and inform other employees of their rights. The protections also apply where the employee mistakenly, but in good faith, alleges that the employer has not complied with the PSLO.

If an employer takes adverse action against an employee within 90 days after the employee asserted rights protected by the PSLO, it will be presumed this action was unlawful retaliation. The employer will have to offer evidence to rebut this presumption. The 90-day window is significantly longer than the 30-day window permitted under the state law.

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1. Lab. Code sec 246(r)

2. Berkeley Mun. Code sec. 13.100.030(B)

3. Berkeley Mun. Code sec. 13.100.030(C)

4. Berkeley Mun. Code sec. 13.100.050

5. Berkeley Mun. Code sec. 13.100.040

6. Berkeley Mun. Code sec. 13.100.040(A)(2)

7. Berkeley Mun. Code sec. 13.100.040(A)(3)

8. Berkeley Mun. Code sec. 13.100.040(A)(3)

9. Berkeley Mun. Code sec. 13.100.040(B)

10. Berkeley Mun. Code sec. 13.100.040(B)(2),(3)

11. Berkeley Mun. Code sec. 13.100.040(B) (4–9)

12. Berkeley Mun. Code sec. 13.100.040(A)(6)

13. Berkeley Mun. Code sec. 13.100.040(A)(6), (B)(8)

14. Berkeley Mun. Code sec. 13.100.040(A)(5)

15. Berkeley Mun. Code sec. 13.100.060

16. Berkeley Mun. Code sec. 13.100.060(A)

17. Berkeley Mun. Code sec. 13.100.060(A)

18. Berkeley Mun. Code sec. 13.100.060(D)

19. Berkeley Mun. Code sec. 13.100.060(B)

20. Berkeley Mun. Code sec. 13.100.080

21. Berkeley Mun. Code sec. 13.100.080(B), (F)

22. Berkeley Mun. Code sec. 13.100.080(E)

23. Berkeley Mun. Code sec. 13.100.080C

24. Berkeley Mun. Code sec. 13.100.080 (C),(F)

25. Berkeley Mun. Code sec. 13.100.060 (C)

26. Berkeley Mun. Code sec. 13.100.070