Legal Question in Employment Law in California

I'm employed in California by a California based company. In the five years we've been in business they've changed our sick policy, working on a third time. At first, it was unlimited sick calls. If you were sick, call out. You were paid for missed time. That became too costly and a year and a half later they changed it so you could call in sick Three times with no penalty (paid), fourth was a verbal warning, and five through seven were written warnings. When they instituted this new policy however, they went BACK and retroactively applied it to your past sick calls for the previous 12 months and placed you whereever you fell on the new scale.

Now, we're changing it again. Now it's said to be 60 PAID hours a year (accrued at 5 hours per month). However, they're once again going back, this time the whole length of your employment, and calculating how many hours in the "bank" you should have (i.e. a year 5 employee would have 300 hours by now had this policy been in place all 5 years) and DEDUCTING all of the hours you've called in sick for the previous 5 years.

Can they change policy and hold employees retroactively responsible for things they did under a previous policy? This will be the THIRD time those of us employed five years will be held responsible for the same sick calls.


Asked on 7/29/12, 12:45 pm

2 Answers from Attorneys
Terry A. Nelson Nelson & Lawless

Companies can change policy, but not retroactively, and certainly not impose penalties or losses now for what was 'legal' before. They should 'apportion' sick time leaves among the different rules by treating each rule period independently. They can't recompute for prior periods if it costs you leave you had accrued. You may have a claim for violation of the wage and hours rules, unpaid compensation, interest, penalties and attorney fees, that you can bring either directly at the Labor Commissioner, or by filing a lawsuit. If serious about pursuing this, feel free to contact me for the legal help you'll need.

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Answered on 7/30/12, 1:04 pm

I disagree with Mr. Nelson. I think your employer has gotten some pretty savy legal advice and has come up with a plan that is legal. Since your employer paid you for all your sick days in the past, and they are not taking back any pay for those days, I don't see how it is illegal. Employers can discriminate in pay and benefits on any basis they want as long as it is not something like race or gender discrimination or penalizing for a protected activity such as union organizing. They are free to give bigger raises to good employees and even pay cuts to bad ones. They are also free to give or take away benefits, such as sick days, so long as it is not retroactive. Sick days are not considered earned compensation when banked (unlike vacation). So unused sick days can be wiped out going forward even if they could have been used before the change in policy. So I see nothing illegal when going from an unlimited bank of paid sick days, to unlimited sick days with warnings. And I see nothing illegal in going from unlimited sick days with warnings to a limited number of sick days. Since that is legal, it is also legal to determine how many of the now-limited sick days each employee gets by looking at their past history of using sick days. It actually sounds generous that they are giving "bank" days under the new policy to employees who have not used them in the past. They could just start everyone at zero and let them start building them from scratch. Bottom line: as long as they do not dock past or future pay for sick days taken before the change in policy, I see nothing illegal in allocating sick days going forward based on past use of paid sick days.

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Answered on 7/31/12, 5:27 pm


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