Name That Section - Frequently Used Education Code and Title 5 Sections for Community College Districts

under an employee welfare benefit plan subject to the federal Employee Retirement Income Security Act of 1974, insurance benefits, workers’ compensation benefits, unemployment compensation disability benefits, or benefits not payable from the employer’s general assets. 105 Employers are prohibited from denying an employee the right to use family sick leave, and may not discharge, threaten to discharge, demote, suspend, or in any manner discriminate against an employee for using, or attempting to exercise the right to use, family sick leave. 106 An employee whose rights under this section are violated shall be entitled to reinstatement and actual damages or one day’s pay, whichever is greater, and to appropriate equitable relief. 107 However, the Paid Sick Leave Law, puts a different spin on the Kin Care law as there is a broader definition of “family member” under the Paid Sick Leave Law, including grandparent, grandchild, sibling, and parent-in-law. The end result of reading the Paid Sick Leave Law and Kin Care obligations together is that an employee's use of paid sick leave to care for a family member pursuant to the Paid Sick Leave Law will not necessarily count towards the employee's Kin Care law entitlement; it will depend on which family member the employee is caring for.

3. D IFFERENTIAL P AY

Classified employees who exhaust their sick leave are entitled to “differential pay” leave for up to five months. The Education Code provides:

When a classified employee . . . is absent from his or her duties on account of illness or accident for a period of five months or less, whether or not the absence arises out of or in the course of employment of the employee, the amount deducted from the salary due to the employee for any month in which the absence occurs shall not exceed the sum which is actually paid a substitute employee employed to fill the employee’s position during the employee’s absence. 108

Further, unless a governing board has adopted a salary schedule for substitute employees of the district, the Education Code mandates that the amount paid the substitute employee during any month must be less than the salary due to the absent employee. 109 A District must actually hire a “substitute” in order to deduct the differential payment from an employee on leave. 110 If a District simply fills the position with a current regular employee, the District may not deduct the wages paid to the current employee when paying the employee on leave. 111 Note, however, that this section does not apply to any community college district that adopts and maintains in effect a rule that provides that a regular classified employee shall be credited once a year with a total of not less than 100 working days of paid sick leave, including days to which such employee is entitled under Section 88191. These days of sick leave must be compensated at not less than 50% of the employee’s regular salary and be exclusive of any other paid leave, holidays, vacation, or compensating time to which the employee may be entitled. 112

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