The First Legal Opinion on Paid Sick Leave

On August 7, 2015, the DLSE issued its first legal opinion on the new PSL law.  The question asked was whether an employee who works a “regular 10 hour shift” is entitled to 24 hours of PSL or 30 hours of PSL.  Read the legal opinion here:   


The answer:  30 hours.  No big surprise.  Not earth-shattering.  Not unexpected in California.  This is what the Division of Labor Standards Enforcement was saying all along.  Read the DLSE FAQ page here:  


But I still have questions about PSL accrual.  The DLSE writes, “if an employee’s regular work hours are 10 hours per day” the employee is entitled to 10 hours as one day of PSL, 30 hours for three days of PSL. 


But what about the employee who works different hours each day depending on the workload.  Perhaps the employee is in a seasonal business.  The busy season may require 9-12 hour days.  Let’s assume this is not an alternative work schedule and overtime is paid after 8 hours.  Then when it slows down, the employee works 7-8 hours each day.  I know how to calculate the accrual of PSL – one PSL hour for every 30 hours worked.  But is the employee entitled to 24 hours of PSL or something more?  What are “regular work hours”? 


The DLSE also opined that a part-time worker is entitled to at least 24 hours of PSL.  That is what the DLSE claims is “fair.”  But let’s assume this part-time employee works only 20 hours per week.  She receives the same amount of PSL as the worker who works 40 hours per week.  It may take the part-time worker longer to accrue the PSL, but she gets everything the full-time worker receives.  Is this fair? 


I’m sure the DLSE would tell me that fair is not the comparison between full-time and part-time workers.  The comparison is between the employee and the employer.  It is only fair if the employer provides 24 hours of PSL to the employee.  And of course, so says the DLSE, the legislation was drafted with the intent to provide every worker with at least 24 hours of PSL, regardless of the amount of time they work. 


The DLSE ends its opinion with the comment that it is often in the best interests of the employer and employee to provide sick leave in greater amounts than provided by PSL.  Perhaps.  But shouldn’t that be a decision made by the employer.  Moreover, what I have seen, after drafting many PSL policies, is that employers have reduced vacation, PTO or company-provided sick-time now that the state has imposed PSL.  What this does is means that employees who don’t typically take sick time now have less time to vacation.  Or, they could lie about their absence and just claim they are sick rather than vacationing. 


PSL, regardless of the good intentions of some lawmakers, was an ill-conceived law.  It hurts businesses.  It hurts employees.  And it will result in more litigation, just like the paycheck stub law has resulted in unnecessary and costly litigation.