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Q&A About Sick Leave Policies

LD presented the following scenario:

My husband works the following:

Monday 8hrs, Tues 10 hrs, Wed. 10hrs, Thurs 9 hrs.

Friday he has surgery and puts 8 hrs of sick leave on his time sheet.

In his mind he would be getting 5 hours of overtime. His employer pays him the over time but changes his time sheet to read 5 hrs of overtime and 3o hours of regular pay and 3 hours of sick leave. saying he cannot use the sick leave to make up the 40 hours. Does this make sense? Is this legal? So basically he gets the overtime but gets shorted 5 hours.

Your husband worked 32 regular hours and 5 hours of overtime (2 hours of overtime on Tuesday and Wednesday each and 1 hour of overtime on Thursday). This is a total of 37 hours. California law requires the employer to pay your husband 32 hours at the regular rate of pay and 5 hours at time and one-half (this assumes, of course, that your husband is not exempt from the overtime laws).

Your husband also chose to use sick leave for the missing day/time (Friday). There are very few laws that apply to sick leave. Some cities, like San Francisco, have enacted mandatory sick leave requirements, but most employers are free to adopt whatever sick leave policies they choose to adopt. There are no laws prohibiting an employer from adopting a rule that prohibits employees from using sick leave to increase the total hours to more than 40 hours worked in a given week.

Sick leave is different than vacation pay. Vacation pay is considered “wages.” Labor Code Section 227.3 specifically states that vested vacation time must be paid out as wages upon termination. An employee earns vacation pay as the employee works. Sick leave, on the other hand, is not considered wages. The main reason is that the employee is not entitled to sick leave unless and until the employee is sick.

It is possible that a court or the Labor Commission could conclude that an employee with accrued sick leave who wants to use that sick leave for its intended purpose is entitled to receive the full sick leave requested. However, I am not aware of any court decisions or Labor Commissioner opinions requiring such a result.

The Law Office of Phillip J. Griego
95 South Market Street, Suite 520
San Jose, CA 95113
Tel. 408-293-6341
Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.

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Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.