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August 21, 2015

Labor Commissioner — 10-Hour Work Day Equals 30 Hours Paid Sick Leave

The Labor Commissioner’s office recently issued an opinion letter regarding California’s new paid sick leave (PSL) law. The opinion letter addresses questions regarding how employers should provide PSL to employees who don’t work a traditional 8-hour/day schedule. The letter has special significance for agricultural employers and their employees who regularly work 10 or more hours in a day.

According to the opinion letter, companies using the lump-sum approach should provide employees who regularly work 10-hour shifts with 30 hours of leave (i.e., three days at 10 hours per day) up front instead of 24 hours of leave. For these employees, a “day” is not limited to a maximum of eight hours. This is consistent with the counsel that most ag employment practitioners have been giving out of an abundance of caution.

The letter also addresses employees who work less than a regular eight hour day (e.g. a six-hour day). The labor commissioner interprets the PSL law to require 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).” The letter goes on to say that if the employer were to only front load three six hour days (i.e. 18 hours), it would “undercut the mandatory minimum standard of 24 hours for these employees.”

The commissioner also addresses the accrual method for employees working such shifts. For an employee that has accrued 30 hours or more of PSL in his or her leave bank, and regularly works 10 hours per day, “the employee must be able to use and be paid for the full three days at 10 hours per day.” The employer cannot limit the employee’s use to 24 hours. The letter says that 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.”

Moreover, for part-time employees working regular six-hour shifts, the employer cannot “limit the employee’s use of accrued PSL to only three days.” In other words, the employer cannot limit the use of PSL to three six-hour days or 18 hours, but must allow the employee to use 24 hours. “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,” the Labor Commissioner’s office said.

The letter concludes noting “that the specifications as to the amount of paid sick leave that must be provided by an employer, and which the employee must be allowed to use in a year, are, by express definition in the statute, minimums. An employer is always free to elect to provide sick leave in greater amounts, and the legislative and public policy intent underlying the statute reflects that it is often in the best interests of both the employer and the employee to do so.”

For more information, contact Jason Resnick at (949) 885-2253.