By Leonard Brazil

We’ve entered a new year and employers are scrambling to ensure they are in compliance with another layer of employment laws.  But first make sure you’ve already properly implemented the paid sick leave law that effectively kicked in on July 1 of last year and has already been amended once!

You are probably aware of the paid sick leave law so I won’t summarize it.  (You can review a summary here).  Instead, I want to focus on some of the traps for the unwary–nuances in the law which leave employers vulnerable to unknowing violations.

Employee Handbook’s Inclusion of Introductory Period.  Check whether your employee handbook includes a policy that a new hire’s first 30, 60 or 90 days is an “Introductory Period.”  Some of those policies state new hires must complete their Introductory Period before they begin to accrue sick leave or paid time off (PTO).  Such a delay in the accrual of sick leave or PTO would violate the paid sick leave law.  New hires are to commence accrual (or sick leave front loaded) immediately when hired if the employee has already worked in California for at least 30 days for the same employer within a year of commencement of employment.

Inconsistency With Family & Medical Leave Act.  Another trap for employers arises if they are covered by the federal Family & Medical Leave Act/California Family Rights Act (collectively “FMLA”).  Under the FMLA, the minimum increment of leave you may require an employee to take cannot exceed 1 hour.  However, the paid sick leave law states the minimum increment an employer may impose for the use of sick leave cannot exceed 2 hours.  The FMLA and paid sick leave law have different minimum increments of leave an employer can require.  A problem may arise because some FMLA policies state employees are required to use available sick leave while on FMLA for their own serious medical condition.  If employees take leave of 1 hour under the FMLA for their own serious medical condition and the employer applies available sick leave to the FMLA absence of 1 hour, the employer will have violated the sick leave law which does not allow sick leave in increments of less than 2 hours.

Determining Minimum Front Load Requirement.  The poorly drafted sick leave law also exposes employers to another surprise violation.  The law states an employer may “front load” sick leave at the beginning of the year instead of having it accrue through the year so long as the leave is not less than 24 hours or 3 days.  The California Division of Labor Standards Enforcement (DLSE) interprets the “24 hours or 3 days” differently than you may have thought.  The DLSE states that if a part-time employee works, for example, 4 hours a day, the minimum amount of leave which must be front loaded is not the amount of time they worked in 3 days (12 hours) as one would think—it would be 24 hours (See August 8, 2015 DLSE Opinion Letter).  I hope the DLSE’s interpretation will be rejected by the courts because it seems absurd to give employees more sick leave pay for their absence than would have been received if they actually worked those days!  Likewise, the DLSE states an employee working a regular shift in excess of 8 hours would be entitled to receive sick leave based on the total hours worked in 3 days.  For example, employees with a regular 10-hour shift would be front loaded 30 hours, not 24 hours.

Plaintiff employment lawyers will automatically look at an employer’s sick leave policy with the hope of snaring unsuspecting employers who think they are safe because they prepared a sick leave policy to comply with the new law—but have they?

Thank you for joining us on ClarkTalk!  We look forward to seeing you again on this forum.  Please note that the views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog.  You should certainly consult legal counsel of your choice when considering this or any other employment issue.  If you wish to consult with the author of this post or another attorney at Clark & Trevithick, please contact Debbie Petito dpetito@clarktrev.com or Leonard Brazil lbrazil@clarktrev.com by email at or telephonically by calling the author at (213) 629-5700.

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