Attorney Jean-Claude Lapuyade

What is the correct rate of pay for sick pay?

Workers in California have a lot of protections provided to them by state and federal law. You might think that would deter employers from mistreating their employees, but that simply isn’t the case. Far too often employers take advantage of their employees simply because they think that their workers aren’t going to recognized that they’ve been wronged. Don’t let that be you.

Don’t overlook the importance of sick pay

One area where workers are often cheated is in their sick pay. In California, if you’re a non-exempt employee, meaning that you’re paid hourly and qualify for overtime rather than yearly salary, then your sick pay is calculated based on your regular rate of pay during the workweek, regardless of whether you work overtime. The way this rate is calculated is by dividing your wages regardless of overtime pay by the number of hours worked in full pay periods over the last 90 days. That will give an average rate that will then apply as your sick pay rate.

Complications can arise

While calculating your sick pay rate might seem pretty straightforward, it can be more complicated than expected. To see how challenging the issue can be you need only turn to a recently filed lawsuit against retail giant Wal-Mart. There, workers claim that Wal-Mart knowingly failed to pay them appropriately for their sick leave because the employer failed to take into consideration incentive pay that workers had earned and was added to their weekly wages.

Wal-Mart subsequently filed a motion to dismiss the case, but that motion was denied with the court specifically referring to the sick pay calculation formula discussed above. This will be an interesting case to watch to see how, if at all, the court expands or contracts considerations when determining a rate of sick pay.

Is your case worth it?

A lot people think that pursuing a legal claim based on inadequate sick pay isn’t worth it. After all, the difference that was paid and what was expected might be relatively small. However, you might be entitled to damages in excess of your lost sick pay. You might be able to recoup any damages linked to retaliation for filing a claim against your employer, and you might be able to recover attorney fees.  Additionally, California law allows for employers to be penalized when they willfully violate provisions of the applicable law which can deter them from taking advantage of other workers moving forward.

Building your case

Building your employment law case may seem easy on its face, but it can be complicated by legal nuances and challenges. But there are steps that you can do to help position yourself for successful legal action. To start, keep detailed records. Your pay stubs, communications with your employer, and interactions with other wronged employees should be maintained with as much detail as possible. These can help establish not only the rate of pay that you should be receiving for your sick leave, but also the egregiousness of your employer’s actions. You also need to know the law and how to craft compelling legal arguments based on statute and case law.

Have the zealous advocacy that you need

Employers often aggressively challenge these cases because they typically have taken advantage of a number of workers and could see large judgments if a court rules against them. But the legal resources these businesses are able to utilize shouldn’t intimate you. Instead, you should do what you can to ensure that you have a zealous advocate on your side who knows the law and how to use it to your advantage. If you’re looking for legal help, then we encourage you to continue to browse our website to see what we have to offer.