When clients ask me what the law says, I can sometimes give them a definitive answer. I know, for example, that the California Family Rights Act applies to employers with 50 or more employees within 75 miles of the affected employee’s worksite. I know that employers of any size in California must provide up to four months off for employees disabled because of pregnancy, childbirth, or related medical conditions.
But some of the time, definitive answers are impossible. This is especially true when the answer depends on an interpretation provided by the Division of Labor Standards Enforcement.
Last month, the DLSE issued an opinion letter saying employers could reduce exempt employee’s work schedules and salaries as a temporary cost-cutting measure. I applaud that interpretation for recognizing the economic realities employers in California face. But until the DLSE issued that opinion letter on August 19, 2009, no one I know would have advised an employer that that was the law. In fact, there was a 2002 DLSE Opinion Letter that went the opposite way on this issue.
Other examples abound. Like when the DLSE said that exempt employees must be paid for a month in which they performed any work, which resulted in an uproar, which led to the DLSE retracting that opinion. Or a 2002 Opinion Letter, where the DLSE said employers could not require employees to use their vacation time unless it gave them 9 months advance notice. Then it revisited the issue in 2005 and in a memo from the Labor Commissioner to DLSE staff, said that there was no basis for the 9-month requirement. Instead, the DLSE said that employers must only provide reasonable notice, which it defined as “as far in advance as possible but generally no less than one full fiscal quarter or 90 days, whichever is greater.”
One could ask: if there was no basis for the 9-month requirement, what’s the basis for the 90-day requirement? Or one could ask: how are employers supposed to comply with the law when the agency charged with enforcing it can’t make up its mind as to what the law requires? But I choose to ask: will clients pay for me to consult a Ouija board?