Governor and stealth Presidential candidate Jerry Brown last September passed the “Healthy Workplaces, Healthy Families Act,” It declares employees in companies of all sizes must receive at least three paid sick days, which appears to be a huge expansion of the welfare state. But the law’s exemption for unions is aimed at forcing small businesses into healthy union workplaces.
Unions have failed to organize small businesses in America because the companies are generally too young and too small. Although Department of Labor defines “small business” as 500 or less employees, 90 percent of small businesses have 20 or fewer employees. With startups and young businesses growing employment much faster than established firms, 64 percent of net new jobs each year are created by very small business. This size issue explains why union membership in the U.S. has collapsed.
Jerry Brown made clear his disdain for job growth in 1995 when he remarked, “The conventional viewpoint says we need a jobs program and we need to cut welfare. Just the opposite! We need more welfare and fewer jobs.” He added, “Jobs for every American is doomed to failure because of modern automation and production.”
The “Healthy Work” law impacts in-state and out-of-state companies that employ as few as one employee. HWHFA makes no distinction between part-time, temporary, and full-time employees; all their employees are entitled to the law’s benefits if any company’s employee has worked in California for 30 days, other than an exemption for in-home care and certain air-carriers.
Just like President Barack Obama politically rewarded big unions by exempting them from Obamacare fees, presidential hopeful Brown designed HWHFA to exempt union “employees whose employment is governed by collective bargaining agreements.”
When Healthy Work goes into effect on July 1, one of the key targets is the franchises that exist in over 85 different industries. The one-size fits-all requirement of the law eliminates employer flexibility to design “leave plans” that match their unique needs. The International Franchise Association estimates the average franchise business cost per employee will be about $900 per employee per year.
The HWHFA grants employees wide latitude regarding use of accrued sick time. Employees may use paid sick leave time to tend to their own health issues or address the health issues of a “family member.” But the law radically redefines “family member” to include child, spouse, parent, domestic partner, sibling, grandparent and grandchild.
If an employee accrues sick days and wants to use them, the only “right” of an employer is to require the employee to give reasonable advance notice of any “foreseeable need for sick days.” But if the sick day need is not “foreseeable,” employees need only provide as much notice as is “practicable.” This means employers cannot require sick leave requests in writing or request employees to find a substitute.
The minimum three days of sick leave becomes an employee entitlement after just 90 days of employment and then accrues at the rate of one hour for every 30 hours worked.
Employees can break their accrued sick days into as many segments as they like, as long as each segment is at least two hours long. Although many employers currently have policies that request medical certification of the need for paid sick days or hours, the law does not require any certification of medical need.
The law not only makes it unlawful for employers to retaliate against employees for requesting or taking sick days, but it establishes a 30 day “rebuttable presumption” that puts the onus on the employer to prove the company did not engage in “unlawful retaliation” within the last 30 days. This clause will mean that any employee who thinks they are about to be fired can use their sick day hours to protect against discharge for 30 day blocks after the coming back to work.
Healthy Workplace empowers the California Labor Commissioner to impose significant fines and penalties for employers who violate the HWHFA. The law also allows civil actions may be brought against employers on behalf of the state for any violation and expressly entitles the state to an award of attorneys’ fees. The Labor Commissioner has the power to seek employee reinstatement, back pay or and/or administrative penalty.
Presidential candidate Brown and his union friends passed Healthy Work as a Trojan Horse that makes unionization the only alternative to a heavy economic burden. Employers that sign collective-bargaining agreements will save the direct employee costs to comply with the law. But they also will avoid the indirect costs of paying temporary staff, added record-keeping, burdening co-workers with extra workloads, and losses due to decreased productivity from absent employees.