Labor Commissioner Issues Opinion Letter on California Paid Sick Leave Question

Aug 14 2015 - Benefits - Brad Sterling


Paid sick leave questions answered.

The Labor Commissioner’s office recently issued an opinion letter regarding California’s new paid sick leave (PSL) law.  The opinion letter answers questions relating to how employers provide “24 hours or three days” of PSL when you have employees that don’t work a traditional 8 hour day schedule.  How does the law work, for instance, if you have workers with an alternative workweek schedule of four 10 hour days or part-time employees who work six hour shifts?

The essence of the opinion: whichever application of the law provides the most benefit to the employee is the one which should be applied.

Here are some specific examples which are addressed:

Q.1.  Company A uses the lump-sum approach under Labor Code section 246(d) (full amount of leave front-loaded at the beginning of each year; no accrual or carry-over).  Company A has employees that work regular 10 hour shifts.  Does Company A provide these employees with a lump-sum of 30 hours of leave (three days at 10 hours per day) or only with 24 hours of leave on the theory that a “day” is limited to a maximum of eight hours?

A.1.  If an employee’s regular work hours are 10 hours per day, a paid sick day for that employee would be his/her normal full day of work – which in this instance is 10 hours.  According to the Labor Commissioner, “[t]he ‘full amount’ of leave for this employee would need to be front loaded at the beginning of the year, meaning that three 10 hour days (which, if translated into hours would be 30 hours) must be front loaded at the beginning of the year.”  Any other interpretation would mean that Company A’s employees with 10 hour workdays would receive less than the minimum of three days of PSL required by law, said the Labor Commissioner.

Q.2.  Company B uses the lump-sum approach. Company B has employees that work regular six hour days.  What is the amount of time that must be provided as a lump-sum for these employees at the beginning of the year?

A.2.  The Labor Commissioner states that “the ‘full amount of leave’ the employer would need to front load for these employees would be a minimum of 24 hours (not three six-hour days).”  If Company B only front-loaded three six hour days (i.e., 18 hours) it would “undercut the mandatory minimum standard of 24 hours for these employees.”

Q.3.  Company C uses the accrual method.  However, Company C limits the amount of PSL an employee can actually use in any given year to 24 hours or three days a year (under Labor Code section 246(d)). How does that limitation apply to employees working regular 10 hour shifts?

A.3.  If Company C’s employee has accrued 30 hours or more of PSL in his/her leave bank and has a regular work hours of 10 hours per day, “the employee must be able to use and be paid for the full three days at 10 hours per day.” Company C cannot limit the employee’s use to 24 hours. Doing so would “undercut the Legislature’s intent that employees be entitled to take a minimum of three days of paid sick leave, without losing any compensation they would normally earn during their regular working hours.”

Q.4.  Company D also uses the accrual method and limits use of PSL to 24 hours or 3 days per year.  How does Company D’s limitation apply to part-time employees working regular 6 hour shifts?

A.4.  If Company D’s part-time employee has accrued 24 or more hours of PSL in his/her leave bank and has a regular work schedule of six hours a day, Company D cannot “limit the employee’s use of accrued PSL to only three days.” In other words, Company D cannot limit the use of PSL to three six hour days or 18 hours, but must allow the employee to use 24 hours.

In the opinion letter, the Labor Commissioner emphasized the Legislature’s intent that each class of employees should be treated fairly.  “To limit a part-time worker who works four hour days to only 12 hours of paid sick leave, based on a ‘three day’ standard, disregards the statutory reference to a minimum of 24 hours and would defeat the legislative objective of providing low wage workers with at least a minimum of 24 hours of paid sick leave per year,” said the Labor Commissioner’s office.

While the Labor Commissioner’s opinions are not legally binding, they provide valuable guidance as to how the Labor Commissioner will enforce the law.  Failure to follow the guidance can result in administrative citations.  If you have any questions on these issues, consult legal counsel.

Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content

Need paid sick leave resources?  CalChamber members can download our white paper, The Who, What, When and How of Mandatory Paid Sick Leave in California: New Amendments Effective July 13, 2015 — it’s updated to reflect the recent amendments. Not a CalChamber member? Visit this page to download the updated white paper.  CalChamber members can also find more resources on paid sick leave in the HR Library.

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