Tag Archives: Paid Sick Leave Ordinance

The Impact of Local Minimum Wage and Paid Sick Leave Ordinances on the Transportation Industry

Contributed by Michael Wong, January 5, 2018

Over the past few years, cities, counties and local municipalities have been enacting laws and ordinances increasing the minimum wage and requiring paid sick leave for employees. While there have been growing pains with how these apply to normal hourly non-exempt employees and tipped servers, do these apply to motor carriers and employees who are truck drivers?  This can be the most frustrating legal response of all, “it depends.”

In most cases, minimum wage laws enacted by states follow the Fair Labor Standard Act (“FLSA”) and provide exemptions for motor carriers.  Indeed, under Section 12(b)(1) of the FLSA, employees whose duties, wholly or in part, affect the safety of operation of a motor vehicle and are involved in interstate commerce are exempt from being paid overtime. Whether a municipality’s minimum wage ordinance applies, depends on the language and rules of the ordinance. For example, the rules of the Cook County, Illinois minimum wage specifically state that a regulated motor carrier subject to subsection 3(d)(7) of the Illinois Minimum Wage Law is not a “Covered Employer” that would be required to pay covered employees the Chicago or Cook County minimum wage. Similarly, the rules of the City of Chicago minimum wage states that individuals employed for a motor carrier who are subject to the Department of Transportation regulation are not subject to the Chicago minimum wage.

However, paid sick leave laws and ordinances are different.  Neither the Cook County, Illinois earned sick leave ordinance or City of Chicago earned sick leave ordinance have the same exclusion for motor carriers or truck drivers.  While neither expressly states that motor carriers are required to provide paid sick leave to employees who are truck drivers, they also do not state that motor carriers or truck drivers are exempt.  Due to the plain language exempting motor carriers and truck drivers from the minimum wage ordinances, there is a very strong argument that motor carriers are required to provide their employees who are truck drivers with paid sick leave.

Indeed, this interpretation is not unusual within the growing trend of states, cities and local municipalities expanding employee rights – including those of truck drivers. Currently there are 8 states and 30 cities and municipalities that have paid sick leave laws which include:  Illinois (local), Washington (state and local), California (state and local), Arizona (state and local), Oregon (state and local), Minnesota (local), Vermont (state), Massachusetts (state and local), Pennsylvania (local), New Jersey (local), New York (local), Connecticut (state) and Washington, D.C. (local).

Bottom line, the different paid sick leave laws do not address or expressly exempt motor carriers or truck drivers from being subject to the law or ordinance. By not addressing or expressly exempting motor carriers and their employees, these laws are creating significant exposure for motor carriers that fail to make changes by providing employees who are truck drivers with the ability to earn paid sick leave or considering how those employees are being compensated. Certainly, with the patchwork of laws and nuances in each jurisdiction, it can be extremely frustrating and difficult to try and implement a globally compliant policy.  Thus, special attention must be taken when crafting such policies and review by experienced counsel should be part of the process.  Moreover, motor carriers utilizing truck drivers who are independent contractors or owner/operators should take particular pause to consider the increased liability from misclassification claims and the potential damages under the paid sick leave laws, in addition to any applicable minimum wage law or ordinance.

House Republicans Try to Remedy Patchwork of Paid Sick Leave

Contributed by Beverly Alfon, November 10, 2017

Eight states, the District of Columbia, and more than 30 municipalities have enacted laws mandating differing paid leave requirements. Localities such as New York and San Francisco, have enacted some of the most aggressive sick leave requirements in the country. Employers doing business within the City of Chicago have also been left to deal with a trifecta of sick leave laws in 2017:  the IL Employee Sick Leave Act, the Cook County Paid Sick Leave ordinance, and the City of Chicago paid sick leave ordinance. All of this has resulted in an administrative nightmare for employers dealing with more than one set of sick leave requirements.

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On November 2, 2017, three Republicans in the U.S. House of Representatives, Reps. Mimi Walters (R-CA), Elise Stefanik (R-NY) and Cathy McMorris Rodgers (R-WA), introduced a bill, The Workflex in the 21st Century Act (H.R. 4219). Supporters of the bill tout that the legislation gives employees job flexibility, while also giving employers more certainty and predictability over their leave practices. The bill provides for a voluntary program that is comprised of a combination of guaranteed paid leave and increased workplace flexibility options to employees. The amount of paid leave required (ranging from 12 days up to 20 days) would depend on an employee’s tenure and the employer’s size.  At least one type of workflex option would also be made available to employees, which may include a compressed work schedule, biweekly work program, telecommuting program, job-sharing program, flexible scheduling or a predictable schedule.  The incentive for an employer is that participation in the program would shield it from the mish-mosh of paid leave obligations stemming from state and local laws currently in effect.

The bill would not require employees to use the workflex option in order to take advantage of the paid days off. Also, to be eligible for a workflex arrangement, an employee would have to be employed for at least 12 months by the employer and would have to have worked at least 1,000 hours during the previous 12 months. More details regarding the bill can be found here.

Bottom line: Where this bill will end up obviously remains to be seen, but it has strong support from the Society for Human Resource Management (SHRM), the U.S. Chamber of Commerce, National Association of Manufacturers, National Association of Women Business Owners and other employer groups. Until there is a solution to the administrative hopscotch required of employers whose employees work in different cities, counties and states, employers must do their best to stay on top of the applicable paid sick leave requirements and related rules and regulations, and adjust their policies and procedures accordingly.

Cook County Final Earned Sick Leave Rules

Contributed by Noah A. Frank and Sara Zorich, June 8, 2017

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Stamp with the words sick leave next to a thermometer and medicine

With the Cook County Earned Sick Leave Ordinance’s July 1, 2017 effective date around the corner, the Cook County Commission on Human Relations (“CCCHR”) approved its administrative rules on May 25, 2017.

While we previously discussed the Ordinance, one of the most significant aspects of the rules is the new requirement that employers provide covered employees with a notice of their rights under the ordinance at least once per calendar year.

The CCCHR also published a model poster, which must be posted in each place of business where any covered employee works within the geographic boundaries of Cook County.

While the CCCHR has not yet published its rules on the city’s similar Ordinance, we expect the CCCHR’s rules to be instructive and may even be adopted in whole by the Chicago Commission.

Issues to Consider:

While the Ordinance is not yet in effect, the CCCHR already has posted on its website instructions to file a complaint, a complaint intake worksheet, and complaint form!

As such, employers that have not already tackled the Earned Sick Leave Ordinance should implement written policies describing accrual/fronting of leave, carryover, and interaction with other types of leave (e.g., FMLA, PTO / vacation), notice, and business locations subject to the Ordinance. Supervisors should be trained on what notice they may (and may not) require from employees, and identifying trends for abuse of leave.

Employers should also carefully consider whether their timekeeping systems and methods are equipped to appropriately and accurately account for time worked, and the total benefits that have accrued.

Cook County Board Passes Minimum Wage Ordinance

Contributed by Noah A. Frank, Sara S. Zorich, and Michael D. Wong, November 1, 2016

On October 25, 2016, the Cook County Minimum Wage Ordinance (CCMWO) became immediately effective, on the heels of the county’s Paid Sick Leave Ordinance. The CCMWO provides the following significant requirements:

  1. minimum-wage-changesCovered Employees are those who work at least two (2) hours in any particular two (2) week period physically within the county’s geographic boundaries, including compensated travel time for business activities.
  2. Covered Employers include individuals who employ at least one Covered Employee AND (1) maintain a business facility within the county’s geographic boundaries and/or (2) are subject to one (or more) county business license. Home-rule municipalities may choose to opt-out of the Ordinance within their geographic boundaries. Municipalities and other federal, state, and local governmental employers (other than Cook County) are excluded from the Ordinance.
  3. The Cook County Minimum Wage increases on 7/1/2017 to $10.00, and then: $11.00 on 7/1/2018; $12.00 on 7/1/2019; and $13.00 on 7/1/2020. It increases annually thereafter by the CPI, up to 2.5%.
  4. Tipped Employees wages increase by the CPI (up to 2.5%) as of 7/1/2018, and annually thereafter. Employers must submit reports to the Director evidencing that no part of the tips were returned to the employer – establishing another, independent cause of action against employers who fail to properly maintain tips and tip pooling arrangements.
  5. There is no grandfathering, exemption, or safe harbor for currently “in force” CBAs! They will be subject to these new provisions upon their effective date. We anticipate that there will be substantial controversy over this in heavily unionized Cook County.
  6. Posting & Notice. Employers with a physical location in Cook County must post a notice (poster to be prepared by the Director) at each facility within the county, and must provide a notice to each covered employee with the first paycheck subject to the CCMWO and any newly hired employee.
  7. Retaliation and discrimination are prohibited, specifically including punitive schedule or work assignment changes to covered employees and harassment.
  8. Penalties include (i) fines of $500-$1000 per violation per day, enforced by the Cook County Commission on Human Rights; (ii) government contractor disqualification for five (5) years; and (iii) loss of property tax incentives for five (5) years.
  9. Private causes of action exist, with the ability to recover three (3) times the amount of any underpayment, costs, and reasonable attorney fees.

The Bottom Line:

Local minimum wage ordinances are popping up across the United States. As a result, employers must now, more than ever, pay attention to local laws which might also dictate where the company operates and conducts business.

For example, in addition to the CCMWO, employers must also comply with the Chicago Minimum Wage Ordinance for work performed within the City’s geographic boundaries (see our prior blog posts for more information). Note: the minimum wage increases under the Cook County and Chicago ordinances are NOT on the same schedule and thus employers must be aware of which law applies to the work being performed.

Today, in addition to planning for the impending US Department of Labor increase to the salary level for exempt employees (effective 12/1/16), employers with employees working in or traveling through Cook County should start planning for wage increases now, and review CBAs as well. Experienced labor and employment counsel are able to provide advice on best practices.