Tag Archives: paid sick leave

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.

Paid Sick Leave: Cook County FAQs and Final Rules for Chicago

Contributed by Sara Zorich and Steven Jados, July 11, 2017

sick leave

Man sick in bed thinking about the work piling up on his desk

As part of what is certain to be an evolving area of the law, the Staff of the Cook County Commission on Human Rights has issued a set of Frequently Asked Questions (FAQs) related to the new Cook County Earned Sick Leave Ordinance (effective 7/1/17).  These FAQs (which may be updated from time to time), as well as the Cook County Earned Sick Leave Rules (“Rules”), are available for download from the Cook County Website.

In reviewing the Cook County FAQs, it is important to note their opening disclaimer, which essentially states that the FAQs are not legal advice, do not have the force of law, and do not supersede the text of the Cook County Earned Sick Leave Ordinance or its Rules. As such, discrepancies between the Rules and the FAQs should generally be resolved in favor of the Rules—and discrepancies between the text of the Ordinance, the Rules, and the FAQs should, of course, be resolved in favor of the Ordinance.

Additionally, per the FAQs, Cook County has said it will not enforce its ordinance in the City of Chicago against an employer that has complied with the Chicago Ordinance—but again, the FAQs do not carry the force of law, and will not necessarily prevent a plaintiff’s attorney from seeking to enforce the Cook County Ordinance in situations where both ordinances might apply, and an alleged failure to comply with the Cook County Ordinance has occurred since there are separate remedies under each ordinance.

In addition to the Rules implemented for the Cook County Ordinance, final rules under the Chicago Paid Sick Leave Ordinance are now available.

Because of the confusing and sometimes contradictory nature of these two ordinances, their rules, and the FAQs, we recommend consulting with experienced labor and employment counsel to work through any questions and complications that may arise in implementing workplace policies under these paid sick leave ordinances.

Federal Contractors: Paid Sick Leave Is Now A Reality

Contributed by Heather Bailey, October 21, 2016

On September 7, 2015, President Obama signed Executive Order 13706 requiring federal contractors to provide paid sick leave to their employees – up to 7 days annually. The leave is related to an employee’s own illness or injury, including, domestic violence, sexual assault and stalking absences, and for family care for same. The Department of Labor published its Final Rule just over a year later on September 30, 2016.

pay-overtimeHere are the key components:

  • The Final Rule applies to any new federal contracts solicited on or after January 1, 2017, replacement contracts (for those that are expiring) that are solicited on or after January 1, 2017, and contracts awarded outside of any solicitations on or after January 1, 2017.
  • The Final Rule covers procurement contracts for construction under the Davis-Bacon Act (contracts subject only to DB Related Acts — for example where a federal agency provides financial assistance or insurance but does not directly procure construction services — are excluded); service contracts covered by McNamara-O’Hara Service Contract Act; concessions contracts; and federal property or lands contracts, including contracts related to offering services to federal employees or the general public.
  • Good news for banks and financial institutions: unless you are otherwise covered by the above contracts, this Final Rule does not apply to you since “money” alone is not considered federal property.
  • Accrual = 1 hour of paid sick leave for every 30 hours the employee works on or related to a covered contract up to a maximum of 56 hours each year.
  • Employers who do not want to track accrual hours may give employees a bank of at least 56 hours of sick leave to use throughout the accrual year.
  • Employees must be notified in writing at the end of each pay period or month (whichever is shorter) of the amount of paid sick leave available to them.
  • Any accrued but unused leave must carry over year to year, but the Final Rule imposes no obligation to pay out the sick leave bank upon termination of employment (although state law may, so be sure to check state laws on this topic of payout of earned vacation, sick, PTO, etc. to ensure compliance).
  • Employees can take the leave in increments as low as 1 hour.
  • All rejections of sick leave requests must be in writing and state the reason for the denial. That reason cannot be no replacement worker was found or the operational needs of the company.
  • Certification can only be required for absences of 3 or more days and with prior notice if the employee needs to certify his/her return to work.
  • Here is your new poster.

The good news is the Family Medical Leave Act leave runs concurrently with this new paid sick leave and you can use your existing paid time off policies so long as the rights and benefits meet or exceed the requirements of the Final Rule.

The DOL’s Final Rule can be found here and Fact Sheet, here.

With the new and ever changing paid sick leave laws in various states, cities and locales, it is a good idea to reconcile them all (including CBAs) with these new requirements to ensure compliance so you don’t get hit with a penalty to pay damages or worse, debarment.

City of Chicago Is Teeing Up For Mandated Paid Sick Leave

Contributed by Heather Bailey, June 21, 2016

Paid time offOn June 17, 2016, the City of Chicago took one step closer into joining the ranks of requiring employers to give paid sick leave to their employees when the City Council’s Committee on Workforce Development and Audit unanimously voted on the Ordinance to do just that. If passed, Chicago will join 26 other cities (such as New York City, NY, Newark, NJ, and Philadelphia, PA), along with Washington, DC and five states (California, Connecticut, Massachusetts, Oregon and Vermont), who have also passed similar mandated paid sick leave for workers.

The Ordinance as currently proposed will be applicable to an employer of any size – this means all companies with employees in Chicago will be required to comply. Any employee who works at least 80 hours in a four month time span will qualify. Thus, this new Ordinance applies to part-time employees as well. Employees will accrue 1 hour of sick leave for every 40 hours they work – with a cap of 5 days paid leave per 12 month period.

The proposed Ordinance offers the following struggles for business owners:

  • Up to 20 hours (half of the allotted time can be carried over to the next year, with 40 hours of carry over to be used towards FMLA leave).
  • Employers could not require that employees must find their replacement to cover their shift while they use the paid sick leave.
  • Employees could use the time off for more than just being sick (i.e., closure of a school or business due to a public health emergency, domestic violence).
  • Companies without Human Resources Departments will have a harder time administering the leave and curbing use-abuse by employees.

Some of the Pros for business owners:

  • Any earned but unused sick leave would not need to be paid to employees leaving the company for any reason.
  • Employers could require a seven day notice for any foreseen absences such as a pre-planned doctor’s appointment.
  • Temporary and seasonal workers will be excluded since they won’t be able to meet the 6-month waiting period to use the time once it starts accruing.
  • Employers would get one year to implement due to the effective date of July 1, 2017, if passed.
  • Current collective bargaining agreements do not need to be modified to include paid sick leave or amend existing provisions, as well as, negotiations for future contracts could waive the paid sick leave requirement.
  • If an employee is absent 3 consecutive days, the employer could require a doctor’s note or other legitimate proof for the time off.

Stay tuned as the full City Council votes on the mandatory paid sick leave Ordinance tomorrow, Wednesday, June 22nd.

Doing Business in Los Angeles Just Got More Expensive for Employers

Contributed by Heather Bailey

WageOn April 4, 2016, the Los Angeles City Council just voted on their support of increasing California’s allotment of paid sick days for employees to twice the amount given under California’s Paid Sick Leave Law. This means employees would be allowed to earn six paid sick days during the course of the year (as opposed to only 3 under California’s current law). The law still needs to be drafted, but if it is passed, larger employers will need to be in compliance by July of this year, smaller employers (25 or less) would have a year to get fully compliant.

This comes on the heels of LA’s minimum wage increase to $10.50 per hour starting July 1, 2016 with a graduated increase to $15 by 2020. California is looking to increase state minimum wage to $15 per hour by 2023.

Employers should start assessing their current sick leave policies to confirm or adjust accruals accordingly and to determine the toll this will take on operations. Note that whenever federal and state or city law are in conflict, you always follow the law that gives the employee more.

5, 4, 3, 2, 1… Happy New Year! A Look Ahead to 2016 and Employment Laws

Contributed by Heather Bailey

2016 New YearEveryone rings in the New Year differently – some with a party with friends and family, sparkling grape juice with their kids, traveling to a new destination or watching the ball drop in Times Square. Whatever tradition you choose to bring in the new year, the one thing we can all count on is that there will be new employment laws waiting for you on your desk come January 2nd (if not already).

Paid sick leave laws in many states are requiring that you pay your employees to take time off when ill, to care for an ill family member, or to go to the doctor. The federal Department of Labor is even helping states fund such initiatives, so you know they are important. The good news is that many of your paid sick time policies or vacation accruals already cover the sick time now required by these new laws. The main issue is that the paid sick leave law might accrue at a faster rate than the company. If that happens, you will need to allow the employee to take the paid leave sooner and “borrow” the sick time off before it’s actually earned under your existing policy. If you don’t already have such a policy in place, you may need to implement one in your area.

Gender equal pay is highlighting many agendas these days, including the federal and state Departments of Labor, since women continue to get paid less than their male counterparts. This includes hefty fines and penalties. We recommend you look at your compensation rates annually to ensure there are no gender gaps in pay for doing the same job. As President Obama said in his 2014 State of the Union speech, “A woman deserves equal pay for equal work… It’s time to do away with workplace policies that belong in a ‘Mad Men’ episode.”

DOL white collar exemption salary increase should not be news to you. If it is, then please see our recent blogs Urgent Alert: U.S. DOL Proposes Major Changes to Exempt Salary Status and Use Independent Contractors? DOL Says Almost Everyone Is An Employee Under FSLA.

Do not forget to check your state and city regulations for increased minimum wage hikes.

New Year’s Resolutions:

Information and knowledge are key here. Sticking your head in the sand and the “dealing with this later” attitude will only cause you headaches – and more importantly, money – down the line. Meet with your employment counsel and find out how new laws affect your business. Then, you can modify and adopt new policies and practices with your eyes wide open to ensure you ring in 2016 right.

FMLA: Employer’s Leave of Absence Form Defeats Former Employee’s FMLA Claim

Contributed by Michael Wong

Under the Family Medical Leave Act (“FMLA”) employees do not have to expressly say they need “FMLA” or otherwise invoke any of its provisions when requesting leave that would qualify under the FMLA. As such, employers have to be vigilant and question whether an employee’s request or need for leave qualifies for FMLA leave.

Absent employeeHowever, employers should know that an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection. Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1244 (9th Cir. 2014), citing Ridings v. Riverside Med. Ctr., 537 F.3d 755, 769 n. 3 (7th Cir.2008) states that, “If an employee does not wish to take FMLA leave but continues to be absent from work, then the employee must have a reason for the absence that is acceptable under the employer’s policies, otherwise termination is justified.”

In the recent case Amstutz v. Liberty Ctr. Bd. of Educ., No. 3:13CV2385, 2015 WL 5254988, (N.D. Ohio Sept. 9, 2015), the District Court for the Northern District of Ohio held that the employee affirmatively declined FMLA leave and thus was not able to pursue any of her FMLA claims against the employer. In Amstutz, the employee requested a week of sick leave for her grandson’s birth. The employee was advised that under the CBA she could only use one sick day and would have to use personal days for the rest of the week. When the week arrived the employee called in sick and said she would be bedridden for the rest of the week. When the employee returned to work she filled out a leave of absence form and provided a doctor’s note. The employer’s leave of absence form included a section that explained FMLA leave and included a checkbox where the employee could request FMLA leave. Instead of selecting unpaid FMLA leave, the employee requested regular paid sick leave.

The Court in Amstutz held that the employee understood FMLA leave as she had taken it before and thus when filling out the leave of absence form she expressly declined FMLA leave by choosing paid sick leave and not checking the box for FMLA leave. The Court further held that since the employee declined FMLA leave, the employer could not have known that she wanted FMLA leave. Therefore, the employer was not obligated to provide her FMLA leave and could not have interfered with or retaliated against her in violation of the FMLA.

The takeaway for employers from these cases is that there are actions that you can take to limit your exposure to FMLA claims through your policies and forms. First and foremost, it is important to have an FMLA leave policy that is understandable and that identifies who employees should talk to in the event of an absence. Next, as demonstrated by these cases, leave of absence forms and other reporting techniques can be used to help in defending against FMLA claims by showing that the employee affirmatively declined FMLA leave.