BizTimes Milwaukee reporter Alysha Schertz recently asked five local attorneys questions about the new employee sick leave mandate ordinance in the city of Milwaukee. The attorneys include: Daniel Finerty and Thomas O’Day of Godfrey & Kahn S.C.; Robert Sholl of Reinhart Boerner Van Deuren S.C; Frank Gumina of Whyte Hirschboeck Dudek S.C.; and Scott Beightol of Michael Best & Friedrich LLP.
The attorneys responded to some of the frequently asked questions (FAQs) employers have about the new mandate. The following are the questions and the attorneys’ answers.
Exactly what would the new ordinance require employers to do?
Beightol: “The new ordinance creates a new wage mandate on employers with workers who perform work within the city of Milwaukee boundaries. For every 30 hours worked, the employee earns 1 hour of paid sick leave to be used for a variety of purposes. Eligible employees may take up to nine days of paid sick days, if they work for an employer with 10 or more employees, or up to five days of paid sick leave per year if they work for an employer with less than 10 employees.”
To whom does the ordinance apply?
Sholl: “The ordinance applies to all private sector employees employed within the geographic boundaries of the City of Milwaukee (and their employers).”
If my company is based outside the city, but I have a location within the city, will I have to comply with the law?
Beightol: “The location of the company is not determinative as to a worker’s eligibility for mandated sick leave under the ordinance. What matters for paid sick leave eligibility is if the person is ‘employed within the geographic boundaries of the City of Milwaukee.’ Under the current language of the ordinance, this appears to mean that as a worker performs services within the city boundaries, accrual of sick time occurs and eligibility for use occurs as well. In short, if a company is based outside the City of Milwaukee, but has a location within the City of Milwaukee where employees perform work, those employees within that City of Milwaukee location are eligible. This, of course, requires such an employer to consider whether to coordinate the City of Milwaukee mandate across all of its locations so that all of the employer’s employees have a uniform wage and benefit program.”
If I have employees who work at multiple locations, sometimes in the city and sometimes outside the city, will I have to comply with the law?
Beightol: “Again, if employees sometimes work in the city, the ordinance appears to require the employees to accrue and be able to use mandated sick leave for those periods they work within the City of Milwaukee.”
My company’s unionized employees have a contract that determines how many sick days and other benefits they receive. How does this law affect that contract?
Beightol: “Because this is a new law, the employer and the union need to come into compliance as of Feb. 10, 2009. Under the National Labor Relations Act, the employer and the union will need to consider their bargaining obligations given that this is a mid-term compliance issue. Most likely, the parties will need to meet and discuss to come to terms with compliance and coordinate the ordinance’s mandate with existing wage and benefits provided by the labor agreement. Unlike other sick leave mandates, this Milwaukee ordinance does not recognize or exempt existing labor agreements from its reach.”
What if I have union and non-union employees?
Finerty/O’Day: “It may be best to treat union and non-union employees equally with respect to paid sick leave. However, if the collective bargaining agreement is clear about what paid leave is required for union employees and that amount differs from what is provided to non-union employees, some pro rata modification of the respective amounts of paid sick leave provided to each group may be required.”
What about temporary or seasonal workers?
Beightol: “Temporary workers are expressly included in the ordinance and are therefore eligible for the paid sick leave mandate. Seasonal workers are not specifically addressed; however, they appear to be also eligible.”
How soon will my company have to comply with the law?
Gumina: “Employers must be in compliance 90 days after publication of the ordinance by the city. The ordinance was published on Nov. 12, thus, the compliance date is Feb. 10, 2009, barring court intervention. A judge will most likely be asked to decide whether to delay enforcement of the ordinance until the matter can be fully litigated. Companies need to immediately begin a review of their current paid leave policies and prepare to comply with the requirements of the new ordinance. There is not a one-size-fits-all solution for the marketplace. Much depends on a company’s current paid leave structure and whether there is a labor union contract in place. While companies should prepare to comply, it would generally be premature to implement the changes until we see what the courts will initially do with the ordinance. It is anticipated that business groups will commence litigation soon, seeking, among other things, injunctive relief preventing enforcement of the ordinance until the matter may be fully heard by the courts. Should injunctive relief and early motion practice fail before the courts; companies will need to comply by Feb.10, 2009.”
What will be the penalties for non-compliance?
Gumina: “Penalties may include back pay, reinstatement (if an employee is terminated for seeking rights under the ordinance), and attorney’s fees. In addition, the (Equal Rights) Commission can levy monetary penalties.”
Are there other requirements under the ordinance?
Gumina: “The ordinance prohibits retaliation against any employee who seeks to assert his or her rights under the ordinance. The ordinance also has provisions requiring notice to employees.”
Sholl: “The ordinance requires that covered employers give affected employees notice of their rights under the ordinance. The notice must be provided in English, Hmong and Spanish.”
Are employees entitled to carry over paid sick leave from year to year?
Sholl: “To a limited extent. Employees are entitled to carryover hours of accrued paid sick leave from year to year. However, an employee may never utilize more than 72 hours of paid sick leave (40 hours for employees of small businesses) in any calendar year.”
What can paid sick leave be used for?
Sholl: “Paid sick leave can be used for: an employee’s or a family member’s mental or physical illness, injury or health condition or need for medical diagnosis, care or treatment of a mental or physical illness, injury or health condition or preventive medical care; an absence necessary due to domestic abuse, sexual assault or stalking, provided the leave is to: seek medical attention for the employee or employee’s child, spouse, parent, grandparent or extended family member to recover from physical or psychological injury or disability caused by the domestic or sexual violence, or obtain services from a victim services organization; or obtain psychological or other counseling; or seek relocation due to the domestic or sexual violence or stalking; or take legal action, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from the domestic or sexual violence. A family member is defined by the ordinance as: ‘a child, parent, spouse or registered domestic partner under the Milwaukee municipal code, sibling (biological, foster or adopted), spouse of a sibling grandparent, grandchild, and any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.'”
Who is going to enforce the mandate and are there retaliation risks?
Sholl: “The Equal Rights Commission, established under Chapter 109 of the Milwaukee City Ordinances, is granted the authority to enforce the ordinance. However, the Equal Rights Commission currently is not set up to enforce the ordinance. The ordinance has a contingency, allowing any agency established under Chapter 109 the authority to enforce the ordinance if the Equal Rights Commission is unable to do so due to lack of funding or staffing. There are indeed retaliation risks. The ordinance specifically prohibits any retaliation or discrimination based on an employee’s exercise of rights protected by the ordinance. The ordinance also prohibits any employer from treating leave taken under the ordinance as an absence for any disciplinary purpose.”
Is my company responsible for calculating how much time each employee has earned, even for part- time workers?
Finerty/O’Day: “An employer can take steps to avoid the administrative responsibility of tracking hours worked within the geographic boundaries of the City of Milwaukee, and the responsibility of tracking paid sick leave hours accrued. An employer can choose to either provide 72 hours of paid sick leave up front at the beginning of the year or provide a pro-rata amount of sick leave over the course of an entire calendar year. By doing so, the employer is providing a benefit that is greater than what the ordinance requires. If an employer does not provide for a benefit that is greater than what the ordinance requires and wishes to meet the minimal requirements of the ordinance, then the employer will need to keep track of all hours worked as well as paid sick leave hours accrued based on the one hour of paid sick leave earned per 30 hours worked formula.”
How should an employer document the sick days to comply with the law?
Finerty/O’Day: “An employer may request reasonable documentation of an employee’s use of paid sick leave. Generally, what is reasonable depends on the specific situation. An employer’s policies should not be so onerous as to deter employees from legitimate use of paid sick leave but accommodate the employer’s reasonable need to document the use of paid sick leave. An employer may choose to ask the employee to sign a generic form that indicates the employee has taken time off pursuant to the paid sick leave policy. Advance notification may be required for foreseeable absences, such as scheduled doctor’s appointments; however, the employer’s policies must be flexible to accommodate situations where an employee is unable to provide advanced notification such as the employee’s involvement in a car accident on the way to work or the employees’ child who becomes sick in the hour before the employee is to report to work.
The form should not request or require any detail of the purposes for which the employee took the time off. If the employee’s request is ambiguous, the employer may inquire further to determine whether the leave was taken for the purposes of and covered by the ordinance, provided the employer’s inquiry does not violate any privacy laws.”
When and how can this law be changed?
Finerty/O’Day: “Now that the electorate has passed the ordinance, the mayor has no veto authority and neither the mayor nor Common Council may amend its provisions for two years. However, pursuant to the direct legislation statute, s. 9.20(8), ‘the common council… may submit a proposition to repeal or amend the ordinance or resolution at any election.’ Therefore, short of the Milwaukee Common Council placing a proposition on the ballot to repeal the ordinance at an upcoming election and greater than 50 percent of the electorate vote in favor of the proposition repealing the ordinance, the law will be in place for at least two years. After the two years, it appears that (to eliminate the law), the Common Council would have to go through its normal legislative procedures and pass a resolution repealing (the law) and the mayor would have to sign it.