Following in the footsteps of the Cities of Los Angeles and San Diego, on August 31, 2016 Berkeley’s City Council passed a paid sick leave and minimum wage Ordinance, which amends Berkeley Municipal Code Chapter 13.99 and adds Chapter 13.100. The minimum wage portion of the Ordinance takes effect October 1, 2016, and shortens by four years the time line within which an employee reaches the state $15.00 minimum wage. The paid sick leave provisions in the Ordinance do not become operative until October 1, 2017. 

The requirements of the Ordinance are explained below:

The Ordinance applies to any person who, in a calendar week, performs at least two hours of work within Berkeley’s geographic boundaries. “Employer” is defined to include “any person, including corporate officers or executives…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 under the Berkeley Municipal Code.

Minimum Wage

Under the Ordinance, the minimum wage is set to increase as follows:

Date	Minimum Hourly Wage
October 1, 2016	$12.53
October 1, 2017	$13.75
October 1, 2018	$15

Paid Sick Leave

Eligible employees accrue one paid sick leave hour for every 30 hours worked. Under the Ordinance, leave accrues in whole-hour units, not fractionally. Accrued leave may be capped at 72 hours, although small businesses may cap accrued leave at 48 hours. Accrued but unused leave carries over from year to year – whether calendar or fiscal year. Unlike state paid sick leave law, employers cannot limit the amount of leave employees may use during the year.

Covered employees can use accrued leave 90 calendar days after employment begins for the following purposes: receiving medical care, treatment, or diagnosis. Leave can be used for the employee’s own need, or to care for a family member (child, parent, legal guardian, ward, sibling, grandparent, grandchild, spouse, registered domestic partner) or a designated person if the employee does not have a spouse or registered domestic partner and designates a person for whom leave may be used. 

If the need for leave is foreseeable, employees must provide reasonable advance notice.  However, if unforeseeable, employees must provide notice as soon as practicable. The ordinance expressly allows employers to take reasonable measures to verify or document that leave was used for a permitted purpose. Employers, however, cannot require employees to incur documentation or verification expenses exceeding $15.

If an employer has a paid leave policy (e.g., paid time off policy, vacation, or other paid leave policy) that provides employees an amount of paid leave that may be used for the same purposes as the Berkeley law and meets the law’s accrual, cap, and carry-over requirements, the employer is not required to provide additional paid sick leave.

Both the paid sick leave requirements and minimum wage increases may be waived in a bona fide collective bargaining agreement.

The Ordinance also contains notice and posting requirements. Employers must conspicuously post at any workplace or job site in Berkeley where any employee works a city-published notice informing employees of their minimum wage and paid sick leave rights. The notice must be posted in any language spoken by at least five percent of employees at the workplace or job site. A fine of $500 may be assessed against any employer who fails to comply with the notice and posting requirements, fails to maintain payroll records, fails to allow the City access to payroll records, fails to provide notice of investigation to employees, or fails to post notice of violation to public.

Finally, the Ordinance prohibits retaliation for exercising any rights protected by the ordinance, including the right to accrue and use paid sick leave, the right to file a complaint or inform any person about any party’s noncompliance with the Ordinance, and the right to inform any person or assist him in asserting his rights under the Ordinance. The Ordinance establishes a “rebuttable presumption” of retaliation if any adverse action is taken against a person within 90 days of the exercise of such rights.

Employers who have employees working in Berkeley even on an episodic basis need to review their payroll and sick leave practices and implement any necessary changes for compliance purposes, such as creating separate sick leave policies for Berkeley based employees or revising policies statewide.

Two competing sick leave ballot measures remain on Berkeley’s November ballot – one proposed by sick leave advocates and another by the city. These ballot measures differ slightly from the Ordinance passed by the City Council.