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California’s paid sick leave law, which only went into effect on July 1, 2015 and was recently further clarified on July 13, 2015, continues to raise questions for California employers. Most recently, California’s Division of Labor Standards Enforcement (“DLSE”) was asked by an employer to clarify what the use of the word “day” meant for employees who work ten hour shifts, i.e. more than the traditional eight-hour work day. The DLSE found that such employees would be entitled to the wage they normally earn, meaning for those employees a day would mean ten, as opposed to eight hours, entitling them to an additional two hours of leave.

California Labor Code section 246(d) allows employers 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 if the full amount of leave is received at the beginning of the time period chosen. Under the statute, “[t]he term ‘full amount of leave’ means three days or 24 hours.”

In determining that the “three days” in the statute referred to the schedule that the employee regularly worked as opposed to an eight-hour day, the DLSE reasoned that the law constitutes the minimum standards for paid sick leave in the state and that it was the Legislature’s intent in passing the law “that employees be entitled to take sick days without losing any of the compensation they would otherwise normally have earned for that day.” The law defines the term “Paid sick days” as “time that is compensated at the same wage as the employee normally earns during regular work hours[.]” Cal. Lab. Code § 245.5(e) (emphasis added). Moreover, the DLSE found that in order to give effect to the phrase “24 hours or three days” for all employees, including those that worked more or less than the regular eight-hour work day, the phrase had to be interpreted as “alternative but equally applicable standards” meaning the employee is entitled to the better of “24 hours or three days” of paid sick leave, whichever is more for that employee. Therefore, if an employer plans to proceed under the “no accrual or carry over” method for an employee who regularly works ten hours per day, a paid sick day for that person would be ten hours, and thirty hours of time would have to be front loaded at the beginning of the year to proceed under this method. Likewise, if an employer chose to allow accrual but limit an employee’s use to “24 hours or three days” in each year of employment, calendar year, or 12-month period, employees who regularly work ten-hour shifts would be entitled to bank, use, and be paid for 30, not 24, hours. Moreover, as the DLSE opined and previously noted in the FAQ portion of its website, the converse would be true for those employees who regularly work six-hour shifts—such employees would receive 24 hours under this analysis, as opposed to being limited to 18. According to the DLSE, any other result “would defeat the legislative objective of providing low wage workers with at least a minimum of 24 hours of paid sick leave per year.”

As we have noted before on this blog, opinion letters from the DLSE are treated with consideration by California courts but are not California law. That said, the DLSE does have the capability to enforce labor standards within the state. Its opinion on such issues should therefore be carefully considered by employers. Employers should continue to review their paid sick leave and other time off policies to ensure compliance with California law.