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On Aug. 31, the city of Berkeley, Calif., joined the long list of local jurisdictions to create a local sick-leave law when it enacted the "Paid Sick Leave Ordinance." Berkeley also amended its minimum wage law and codified a new law concerning hospitality service charges.
The ordinance appears to be an effort by the Berkeley City Council to control the paid-sick-leave debate because two competing ballot measures—one proposed by advocates and another by the city—will appear on the upcoming November ballot.
Whether this move is a coup de grace or merely the first strike in a prolonged legal battle over which law controls remains to be seen. Until voters weigh in, the ordinance will be the applicable law employers are required to comply with when it becomes operative on Oct. 1, 2017.
The ordinance applies to all employers employing or exercising control over an employee's wages, hours or working conditions, or that receive or hold a Berkeley business license. However, different standards apply to a "small business" with fewer than 25 persons working for compensation during a given week, including full-time, part-time, or temporary employees, and individuals made available to work through the services of a temporary services or staffing agency or similar entity.
Additionally, the law covers any person who, in a calendar week, performs at least two hours of work within Berkeley's geographic boundaries and qualifies as an employee entitled to payment of a minimum wage under state law or is a Welfare-to-Work Program participant.
Similar to many other local sick-leave laws, Berkeley's ordinance's requirements may be waived in a bona fide collective bargaining agreement if the waiver is explicitly set forth in clear and unambiguous terms.
Accrual, Caps and Carryover
If an employer has a paid leave policy (e.g., paid time off policy, vacation or other paid leave policy) that provides employees paid leave that may be used for the same purposes as the Berkeley law and meets the law's accrual, cap, carry-over, cash-out and use requirements, it is not required to provide additional paid sick leave.
Otherwise, the ordinance requires that employees who have not accrued state-required paid sick leave before Oct. 1, 2017, must begin to accrue city-required paid sick leave on Oct. 1, 2017 or when employment begins, whichever is later.
The ordinance further provides that employees who have accrued state-required paid sick leave before Oct. 1, 2017 continue to and use such leave in a manner consistent with state law. Covered employees accrue one paid-sick-leave hour for every 30 hours worked, which accrues in whole-hour units not fractionally (e.g., employees working 40 hours in a week will accrue one hour, not one-and-one-third hours as required under state law). For small businesses, there is a cap of 48 hours per year; for all other businesses the cap is 72 hours, though employers can set a higher cap or no cap. Accrued but unused leave carries over from year to year—whether calendar or fiscal year—but cannot exceed the cap.
Use, Notice, Verification, Documentation and Payment
Covered employees can use accrued leave 90 calendar days after employment begins for the following purposes: physical or mental illness, injury, or a medical condition; obtaining professional diagnosis or treatment for a medical condition; other medical reasons, such as pregnancy or obtaining a physical examination.
Leave can be used for the employee's own need or to care for a family member (child, parent, legal guardian, ward, sibling, grandparent, grandchild, spouse, registered domestic partner) or a designated person if the employee does not have a spouse or registered domestic partner and designates a person for whom leave may be used.
Notably, leave cannot be used for reasons related to domestic violence, sexual assault or stalking, as permitted by state law. However, as employers must comply with all applicable laws, employees will be able to use state-accrued leave for such purposes.
Small businesses can limit leave use to 48 hours per calendar year, but other employers cannot limit leave use. Accordingly, for "large" businesses it appears Berkeley will mimic its Bay Area neighbors Emeryville, Oakland and San Francisco and use a rolling cap system instead of a hard cap system.
If the need for leave is foreseeable, employees must provide reasonable advance notice. However, if unforeseeable, employees must provide notice as soon as practicable.
Employers cannot condition leave use on employees searching for or finding a replacement worker to cover their leave hours. Interestingly, Berkeley breaks with the position taken by state enforcement officials and expressly allows employers to take reasonable measures to verify or document that leave was used for a permitted purpose. Employers, however, cannot require employees to incur documentation or verification expenses exceeding $15.
Sick leave is paid at an employee's hourly wage. If an employee in the 90 days of employment before taking accrued sick leave had different hourly rates, was paid by commission or piece rate, or was a nonexempt salaried employee, an employer is required to calculate the sick-leave pay by dividing the employee's total wages—excluding overtime premium pay—by total hours worked in the full pay periods of the prior 90 days of employment.
Employers must pay employees for sick leave taken no later than the payday for the next regular payroll period after leave was taken. Wage statements or required writings that must be provided when wages are paid must include the number of accrued paid sick-leave hours. Employers are not required to payout accrued but unused paid sick leave when employees are terminated, resign, retire or otherwise separate from employment.
Notice, Posting and Record-Keeping
Employers must conspicuously post at any workplace or job site in Berkeley where any employee works the city-created notice informing employees of their paid-sick-leave rights. The notice must be posted in any language spoken by at least five percent of employees at the workplace or job site. If employees do not have a regular physical location where they perform work, employers must provide a copy of the notice to the employees when they are hired or assigned to complete work in Berkeley, which must be provided before employees commences work in Berkeley and in the language the employees most easily comprehend.
Employers must keep employee payroll records for a period of 4 years that identify hours worked, wages paid and paid sick leave accrued. However, unlike state law, the Berkeley ordinance does not require records to identify paid sick leave used. If an employer does not maintain or retain adequate records documenting accrued paid sick leave or does not allow the city reasonable access to records, an employee's account of how much he or she was paid is presumed accurate absent clear and convincing evidence otherwise.
Prohibitions, Penalties and Enforcement
Employers cannot interfere with, restrain or deny the attempted or actual exercise of a protected right, including but not limited to using accrued leave taken as a negative factor in any employment action such as evaluation, promotion, disciplinary action or termination, or otherwise subjecting an employee to discipline for using accrued leave. An employer or any other party cannot discriminate in any manner or take any adverse action—including action relating to any term, condition or privilege of employment—against any person in retaliation for exercising protected rights, which include but are not limited to the right to: accrue and use paid sick leave; file a complaint or inform any person about any party's alleged noncompliance with the law; inform any person of his or her potential rights under the law, otherwise educate any person about the law, or assist him or her in asserting such rights. Protections apply to any person who mistakenly, but in good faith, alleges noncompliance with the law.
Taking adverse action against a person within 90 days of the individual exercising protected rights raises a rebuttable presumption the act was done in retaliation for exercising those rights. Additionally, outside the union context, any request that an individual employee waive his or her rights is unlawful.
$500 fines can be imposed for failing to post the notice, failing to maintain payroll records or allowing the city access to them, or failing to provide a wage statement with accrued leave hours. A $1,000 fine can be imposed for each employee against whom retaliatory action was taken. Additionally, a fine equal to the total amount of remedies can be imposed, and repeat offenders can face an additional $50 civil penalty for each individual whose rights were violated for each day or portion thereof a violation occurred or continued.
Although the ordinance does not currently address administrative complaints—it is implied—it does provide a private right of action. Any aggrieved person, any entity whose member is aggrieved by a violation, or any other person or entity acting on behalf of the employee and all other employees affected by the employer's violations or on the public's behalf (per state law) can file a civil action against an employer or other person violating the law and, if successful, must be awarded reasonable attorneys' fees and costs, as well as appropriate legal or equitable relief, including, without limitation: back wages unlawfully withheld; $50 civil penalty to each employee or person whose rights were violated for each day the violation occurred or continued; reinstatement in employment; and injunctive relief. Additionally, available remedies include issuing leave unlawfully withheld.
The city can also file a civil action against an employer. Additionally, the ordinance allows the city to require an employer to publicly post notice of its failure to comply if the city determines a violation occurs. City agencies or departments can also revoke or suspend any registration certificates, permits or licenses held or requested by an employer until a violation is remedied, and the city cannot renew a license of an employer with outstanding violations until the violation is remedied.
Next Steps for Employers
As with many paid-sick-leave laws, the enacted ordinance leaves many unanswered questions, which we anticipate an enforcement agency to address via frequently asked questions or regulations. An enforcement agency is not specifically identified in the ordinance, but the minimum wage and service charge laws will be enforced by the Department of Finance (or possibly another city-designated agency). It would make sense to have these related labor laws enforced by the same agency.
Additionally, the minimum-wage amendments require the department to create guidelines or rules within 90 days of the law becoming effective—a deadline that is not included in the paid-sick-leave ordinance, but one that would be welcomed by employers wanting clarification about the law's requirements sooner than later.
However, the elephant in the room is the fact that the law could be changed in two months once voters go to the polls. Accordingly, as anxious as employers may be to begin reviewing policies, the prudent decision is to wait and see how the election unfolds. If voters are appeased by the city's action, then the review process can begin. But, if voters approve one of the ballot measures, employers must continue sitting on their hands until any conflict is resolved.
Adam Fiss is an attorney with Littler in San Jose. Sebastian Chilco is an attorney with Littler in San Francisco. © Littler. All rights reserved. Reposted with permission.
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