California law provides that employees can be cashed out for their accrued sick leave at their regular rate of pay. Under Labor Code Section 246 (l)(1)(2) the employer or HR department has the option of calculating the rate of pay as either: 1) the regular rate of pay in the workweek in which the employee uses the paid sick leave or 2) the regular rate of pay for the last 90 days. In both instances, overtime is not to be considered.
But that has to do with being cashed out. What about the accrual of sick leave to HR consultants? We know it is 1 hour for every 30 hours worked. Does that include overtime? The Labor Code Section above does not address this issue. It only talks about hours of work. On that basis, it appears the employer can have a uniform policy that the accrual only applies to regular hours and not overtime.
Note also that the University of California also takes that position for its employees: “An eligible employee shall earn sick leave credit at the rate of .046154 hours per hour on a pay status, including paid holiday hours but excluding all paid overtime hours.” (https://ucnet.universityofcalifornia.edu/labor/bargaining-units/cx/docs/cx_2017-2022_36_sick-leave.pdf).
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