California Labor Commissioner Again Attempts to Resolve Questions on New Paid Sick Leave Benefits Law

As we covered in Mandatory Paid Sick Leave for California Employees, all companies with employees working in California are subject to this state’s paid sick leave law (Assembly Bill [AB] 1522), effective July 1, 2015. AB 1522 requires each employer, regardless of size (and except for those with collective bargaining agreements and other very limited exemptions), to provide paid sick leave benefits to any temporary, part-time and full-time employee once he or she has worked for that company in California for a certain period of time.

As an indicator of the confusions created by ambiguous language in this law, the state’s Division of Labor Standards Enforcement (DLSE) website now includes a second, expanded version of her agency’s frequently-asked questions (“FAQs) (and answers) on employer AB 1522 obligations. That website also now includes a new “facts and resources” AB 1522 power point presentation.

(1) UPDATED FAQS:

The updated FAQs, posted February 2015, seek to further clarify employers’ notice requirements, to explain how seasonal workers accrue paid sick leave benefits, and to specify how to provide benefits for part-time employees as well as those on alternative work schedules:

• Wage Theft Prevention Act Notice (“Notice Form”): In addition to providing this notice form to new hires, employers must also now provide it to each hourly employee hired prior to January 1, 2015 and within seven days of implementation of or changes to the company’s paid sick leave policy. In the newly revised FAQs, the DLSE directs that an employer need not issue this separate notice if that company conveys the required information by an authorized “alternative method,” e.g. a pay stub or itemized wage statement.

• Seasonal Employees: Under AB 1522, employees who work in California for at least 30 days within a year are eligible to earn/receive paid sick leave. However, newly hired employees cannot start taking paid sick leave until the 90th day of their employment. This means that a seasonal worker who works 30 days or more but less than 90 in a year will be eligible for sick pay but ineligible to actually use it. The new revised FAQs specify a situation where such workers can use the benefit. If a seasonal employee leaves and returns to the same employer within one year, the 30 and 90 day counts will pick up where that worker left off for AB 1522 eligibility purposes. Thus, if a seasonal employee worked 60 days and then came back within a year, the re-hire date is equivalent to “day 61” of employment.

However, if a seasonal worker worked 60 days and doesn’t come back within a year, the DLSE gives no guidance, stating this is a question “not addressed in the new law and will depend on the particular facts of the situation to answer.”

• Part-Time Employees: 1522 allows an employer to limit the amount of paid sick leave taken to 24 hours or three days. This leaves an ambiguity for part time workers. Is a part time employee who only works six hours daily eligible for only 18 hours (3 days x 6 hours/day = 18) or 24? The DLSE’s expanded FAQs direct that “24 hours or three days” should be read in the manner that benefits the employee more. Thus, except for workers on an properly constructed alternative workweek schedule (see below), no employee – regardless of a shortened scheduled – may receive any less that 24 hours of sick leave benefit.

• Alternative Workweek Schedules of Four 10-Hour Days: According to the updated FAQs, employees who work an authorized alternative workweek schedule of four 10-hour days are eligible for a minimum of three days or 30 hours of paid sick leave (the equivalent of three ten-hour days). Again, the Labor Commissioner interprets “24 hours or three days” as whichever benefits the employee more.

(2) FACTS AND RESOURCES POWER POINT:

The DLSE’s new 21-page “facts and resources” power point presentation covers key 2015 implementation dates, facts on AB 1522, six steps to successful compliance, paid time off policies, exemptions, separation from employment, protection from retaliation, administrative penalties, and various hypothetical scenarios.

Perhaps the most interesting aspect of these new DLSE postings is that the agency issues no assurance that these publications will be the last it will issue before (or after) the July 1, 2015 effective date for AB 1522. Stay tuned.

For additional assistance understanding and implementing California’s paid sick leave benefits law, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth, April 11, 2015