California's Labor Commissioner issued an Opinion Letter on August 7, 2015 in response to the following inquiry: "If an employee currently works a regular 10 hour shift, and if the employer elects to proceed under a "no accrual or carry over" system in the manner specified in Labor Code section 246, subdivision (d), does the employer have to "front load" that employee at the beginning of the year with 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?"
According to the Labor Commissioner's Opinion Letter, an employer must front load the employee with 30 hours of paid sick leave at the beginning of the year if the employee is regularly scheduled to work 10 hour shifts. However, this does not apply to employees that are not regularly scheduled to work 10 hour shifts. For example, not all employees working in California agriculture are regularly scheduled to work 10 hour shifts.
This opinion was based on the following:
1. The new paid sick leave law establishes minimum standards for paid sick leave and must be liberally construed with an eye to promoting employee protection.
2. The Labor Code defines "paid sick days" as "time that is compensated at the same wage as the employee normally earns during regular work hours."
3. The Legislature's intent is that employees be entitled to take sick days without losing compensation they would normally have earned for that day.
4. An employer must provide a minimum of 24 hours or three days of paid sick leave; this language must be interpreted to require 24 hours or three days of paid sick leave, whichever is more for an employee.
5. A paid sick day for an employee who regularly works 10-hour shifts is 10 hours. Thus, the full amount of leave that must be front loaded at the beginning of the year for these employees is 30 hours (3 days x 10 hours per day).
6. The same rule applies to employers who elect to proceed under an accrual system, and elect to limit an employee's use of accrued paid sick days to 24 hours or three days in each year of employment, calendar year, or 12-month period. When an employee working under the accrual and carry over method has accrued 30 hours of paid sick leave and has 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.
Similarly, the Opinion Letter advises that an employee who has regular work hours of less than eight hours per day (i.e. four or six hour workdays) may not be limited to paid sick leave of only three days. Doing so would undercut the alternate standard of 24 hours of paid sick leave, especially when the employee has accrued 24 (or more) hours of paid sick leave. Further, this would disregard the statutory reference to a minimum of 24 hours and defeat the legislative objective of providing workers with at least 24 hours of paid sick leave per year.
For any questions regarding the new paid sick leave law or any other employment or labor relations inquiries, please contact any of our attorneys at Sagaser, Watkins & Wieland PC at (559) 421-7000.