Executive Summary:  California employers are now facing another hurdle in their efforts to comply with state's paid leave law, the Healthy Workplaces, Healthy Families Act of 2014, in light of a recent opinion letter from the state agency that enforces the law.

The Act requires employers who elect the "no accrual or carry-over" option to provide 24 hours or three days of paid sick leave for employees, and requires the "full amount of leave" to be provided up front. On August 7, 2015, the Division of Labor Standards Enforcement (DLSE) issued an opinion letter interpreting the statutory language as a minimum labor standard, requiring "24 hours or three days" of paid sick leave, whichever is more for an employee. In other words, "24 hours or three days" must be interpreted as alternative but equally applicable so that eitherstandard would not undercut sick leave for any employee.

This means, for employees who work part-time and regularly work six-hour days, and if the employer chooses the no accrual or carry-over option, the "full amount of leave" the employer would need to provide up front for these employees would be a minimum of 24 hours (not three six-hour days). If the employer only provided three six-hour days, it would undercut the mandatory minimum standard of 24 hours for these employees.

Similarly, employees who work 10- or 12-hour days, such as some nurses in California, would get 30 or 36 hours of paid sick leave because the employee must be paid for the full three days at 10 or 12 hours a day.

This new DLSE opinion letter muddies the waters and raises more questions.

What if the employee has a fluctuating schedule?

Although the opinion gives a clear answer regarding the minimum amounts of sick leave to provide to employees whose work schedules are consistent throughout their employment, the opinion letter unfortunately raises more concerns and confusion for companies with seasonal workforces or whose employees' work hours vary from day to day. We expect to hear more from the DLSE on these issues soon.

Although courts are not required to follow DLSE opinion letters, they may consult and rely upon these letters for guidance.  Ultimately it is the judiciary's role to construe the language of California's wage and hour laws and decide how they are to be interpreted.