On August 7, 2015, the California Labor Commissioner issued its first opinion letter on one discrete issue under the California Health Workplaces Healthy Families Act which requires employers to provide paid sick leave to employees. The question posed to the Labor Commissioner was this:
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 … of providing paid sick leave, 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?
Here is a summary of what the Labor Commissioner said:
Under Section 246(d) of the Labor Code, “an employer that elects to proceed under the ‘no accrual or carry over’ option must provide a minimum of 24 hours or three days of paid sick leave for employees, and the ‘full amount of leave’ must be received at the beginning of the year (i.e. “front load” or provided “up front”). Note that subdivision (d) was recently amended in AB 304 to include the following sentence: ‘The term ‘full amount of leave’ means three days or 24 hours.’ … In other words, ’24 hours or three days’ must be interpreted as alternative but equally applicable standards, and an interpretation must be applied that would not undercut either standard for any employee. …
This means that if an employee’s regular work hours are 10 hours per day, a ‘paid sick day’ for that employee … would be the normal full day, which if translated into hours, would be 10 hours. The ‘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. …
Likewise, for employees who regularly work six hour days, and if the employer chooses the no accrual or carry over system, 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 the employer front loaded only three six hour ‘days’ for these employees, it would undercut the mandatory minimum standard of 24 hours for these employees. …”
So in essence, the Labor Commissioner’s opinion confirms what many legal scholars had opined previously – that the benefit is the “greater of” 24 hours or 3 days at the employee’s regular or normal daily hours of work.
The Labor Commissioner also said that the same analysis applies to the “24 hours or three days” cap that employers can place on an employee’s use of paid sick leave each year.
Take Away: Employers should review their sick leave (or PTO) policies and ensure that they comply with this “greater of” standard.