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Mandatory Paid Sick Leave Means 30 Hours for Some Employees

Posted by Eric Kingsley | Sep 09, 2015 | 0 Comments

The Labor Commissioner's office has issued an interpretation of California's new Paid Sick Leave law that 24 hours or three days is a statutory minimum that must be interpreted in favor of the employee so that an employee who regularly works a 10 hour shift must be provided with 30 hours (or “three days”) of paid sick leave, not 24 hours.

Background

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Assembly Bill 1522 (Gonzalez, Chapter 317, Statutes of 2014), enacted the Healthy Workplaces, Healthy Families Act of 2014 to provide paid sick days to specified California employees effective July 1, 2015. AB 1522 was landmark legislation that extended the right to paid sick days to an estimated 6.5 million California workers.

On Monday July 13, 2015, Governor Jerry Brown signed Assembly Bill 304, amending the Healthy Workplaces, Healthy Families Act of 2014, by providing clarification regarding which workers are covered, how the paid time off is accrued, and protections for employers that already provide paid sick leave.  Critical differences between the two bills can be found at the bottom of this post.

Labor Commissioner's Opinion

Under AB 1522, and now AB 304, an employer may elect to proceed under either an “accrual and carry over” system or under a “front load” system that involves no carry-over of sick leave from year to year.  If an employer elects to proceed under a front load system, the employer must provide employees with the “full amount of the leave” at the beginning of the year.

When the Paid Sick Leave law was amended this year, the following language was added: “The term ‘full amount of leave' means three days or 24 hours.”  The Labor Commissioner interpreted this new language as a statutory minimum, which means that in the Labor Commissioner's view an employee may never receive less than 24 hours of paid sick leave and, if the employee regularly works a 10 hour day, the employee must receive three days, interpreted as 30 hours. The Labor Commissioner's opinion letter applies this same reasoning to an employer who proceeds under the accrual system and elects to limit an employee's use of accrued paid sick days to 24 hours or three days in a year.

Companies using the front load method should ensure their policy provides the full amount of leave at the beginning of the year–24 hours if the employee is part time or regular 8 hour day full time, or 30 hours if the employee's regular day is 10 hours.  Companies using the accrual and carry over method who also limit the amount of accrued time an employee may use in a year, should ensure their policy provides employees who work a regular 10 hour shift the right to use up to 30 hours of accrued sick leave and all other employees the right to use up to 24 hours of accrued sick leave.

Questions about California's Paid Sick Leave Laws?

An experienced California employment lawyer can quickly answer your questions about AB 1522 or AB 304–California's Paid Sick Leave Laws.  To discuss paid sick leave laws, or a potential claim on your behalf, feel free to contact leading California employment lawyers at Kingsley & Kingsley. Call toll-free at (888) 500-8469 or click here to contact us via email.

Critical Differences Between AB 1522 and AB 304

AB 1522:

  1. Established the Healthy Workplaces, Healthy Families Act of 2014 to provide employees who works in California for 30 or more days within a year from the commencement of employment with paid sick days at the rate of not less than one hour per every 30 hours worked.
  2. Authorizes the use of accrued paid sick days beginning on the 90th day of employment and allows employers to limit the use of paid sick days to 24 hours or three days per year.
  3. Requires an employer to provide paid sick days for the diagnosis, care, or treatment of an existing health condition of, or preventive care for, the employee or the employee's family member (defined as a child, parent, spouse, registered domestic partner, grandparent, grandchild and sibling).
  4. Requires an employer to provide paid sick days for specified purposes, as defined, for an employee who is a victim of domestic violence, sexual assault, or stalking.
  5. Prohibits an employer from denying an employee the right to use accrued sick days, discharge, threaten to discharge, demote, suspend, or in any manner discriminate against an employee for using accrued sick days, attempting to exercise the right to use accrued sick days, filing a complaint with the department or alleging a violation of this article, cooperating in an investigation or prosecution of an alleged violation of this article, or opposing any policy or practice or act that is prohibited by this article.

AB 304:

  1. Provides that the definition of “employee” does not include specified retired annuitants.
  2. Specifies that an “employee in the construction industry” means an employee performing work – deleting the reference to “onsite work” in the current provisions of the law.
  3. Specifies that the law applies to an employee who works in California “for the same employer” for 30 or more days within a year.
  4. Provides that an employer may use a different accrual method, other than providing one hour per every 30 hours worked, provided that the accrual is on a regular basis so that an employee has no less than 24 hours of accrued sick leave or paid time off by the 120th calendar day of employment or each calendar year, or in each 12-month period.
  5. Provides that an employer may satisfy the accrual requirements of this section by providing not less than 24 hours or three days of paid sick leave that is available to the employee to use by the completion of his or her 120th calendar day of employment.
  6. Amends the law to specify that an employer is not required to provide additional paid sick days if the employer has a paid leave policy or paid time off policy, the employer makes available (beginning July 1, 2015) an amount of leave that may be used for the same purposes and under the same conditions, and the policy satisfies one of the following options:
    1. Satisfies the accrual, carry over, and use requirements of the law.
    2. Provided paid sick leave or paid time off to a class of employees before January 1, 2015, pursuant to a sick leave policy that used an accrual method different than providing one hour per every 30 hours worked, provided that the accrual is on a regular basis so that an employee, including an employee hired into that class after January 1, 2015, has no less than one day or eight hours of accrued leave within three months, and the employee was eligible to earn at least three days or 24 hours within nine months. If an employer modifies the accrual method used in the policy it had in place prior to January 1, 2015, the employer shall comply with any accrual method set forth in existing law or provide the full amount of leave at the beginning of the year. This bill shall not prohibit the employer from increasing the accrual amount or rate.
    3. Provides that specified sick leave or annual leave benefits provided to specified state employees or officers by statute or the provisions of a memorandum of understanding meet the requirements of the paid sick day's law.
  7. Provides that an employer is not required to reinstate accrued paid time off to a rehired employee that was paid out at the time of termination, resignation, or separation of employment.
  8. Provides that if an employer provides unlimited paid sick leave or unlimited paid time off, the employer may satisfy a specified written notice requirement of existing law by indicating on the notice or the employee's itemized wage statement that such leave is “unlimited.”
  9. Delays application of provisions related to the inclusion of the amount of paid sick leave available on itemized wage statements or separate writings until January 21, 2016, for employers in the broadcasting and motion picture industries.
  10. Provides that an employer shall calculate paid sick leave using any of the following calculations:
    1. Paid sick time for nonexempt employees shall be calculated in the same manner as the regular rate of pay for the workweek in which the employee uses paid sick time, whether or not the employee actually works overtime in that workweek.
    2. Paid sick time for nonexempt employees shall be calculated by dividing the employee's total wages, not including overtime premium pay, by the employee's total hours worked in the full pay periods of the prior 90 days of employment.
    3. Paid sick time for exempt employees shall be calculated in the same manner as the employer calculates wages for other forms of paid leave time.
  11. Provides that an employer is not obligated to inquire into or record the purpose for which an employee uses paid leave or paid time off.
  12. Provides that the provisions of this bill are severable, as specified.
  13. Contains an urgency clause.

About the Author

Eric Kingsley

In practice since 1996, the firm's lawyer and co-founder, Eric B. Kingsley, has litigated complex cases and written numerous appeals in state and federal courts on behalf of the California law firm Kingsley & Kingsley, including More than 150 collective actions. Mr. Kingsley focuses his practice ...

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