What are the remedies for a violation of Labor Code 233?
A violation of Cal. Lab. Code § 233 exposes the employer to reinstatement, actual damages or one day’s pay, whichever is greater, equitable relief, and, in a civil action, reasonable attorney’s fees if the employee prevails.[1] California also provides administrative enforcement through the Labor Commissioner, and the remedies are cumulative and nonexclusive.[1]
What Section 233 Requires
Cal. Lab. Code § 233 requires an employer that provides sick leave to let an employee use accrued and available sick leave, up to the amount that would accrue over six months, for the kin-care reasons incorporated by reference in Cal. Lab. Code § 246.5. The employee controls the designation of kin-care leave.[1]
The statute also prohibits adverse action for use of kin-care leave:
An employer may not deny the right to use sick leave, or “discharge, threaten to discharge, demote, suspend, or in any manner discriminate against” an employee for using or attempting to use sick leave for the covered reasons.[1]
Remedies for Violation
Under Cal. Lab. Code § 233:
| Remedy | Source |
|---|---|
| Reinstatement | Cal. Lab. Code § 233 |
| Actual damages or one day’s pay, whichever is greater | Cal. Lab. Code § 233 |
| Appropriate equitable relief | Cal. Lab. Code § 233 |
| Reasonable attorney’s fees, if the employee prevails in a civil action | Cal. Lab. Code § 233 |
The statute provides for enforcement either:
- by the Labor Commissioner, or
- by civil action in a court of competent jurisdiction.[1]
Important Limitation
The California Supreme Court held that McCarther v. Pac. Telesis Grp., 48 Cal. 4th 104 (2010) does not apply to uncapped “sickness absence” policies that do not create an accrued bank of sick leave; Section 233 reaches only sick-leave policies involving “accrued increments of compensated leave.”[1]
In other words, whether there is a Section 233 violation depends first on whether the employer actually provides covered sick leave within the meaning of the statute.[1]