An Escape from the Paid Sick Leave Patchwork?

Imagine there’s no local, county or state paid sick leave laws. It isn’t hard to do,  if federal bill H.R. 4219, introduced last week, gets enacted. With the latest human resources portmanteau in its title, the Workflex in the 21st Century Act would expand ERISA preemption to annihilate the patchwork of paid sick leave laws for any employer who elects to opt out of those 40+ PSL laws by opting into this law. The ultimate PSL opt out!

How does an employer escape from the PSL patchwork? By voluntarily adopting a written “qualified flexible workplace arrangement” (QWFA) that provides the required minimum amount of “compensable leave” and by offering employees at least one of the listed “workflex options.”  ERISA would preempt state or local laws that relate to a QWFA plan with regard to employees covered by such an arrangement, according to the bill.

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The required amount of compensable leave varies depending on the size of the workforce and an employee’s length of service.  Employees with less than five years of service must receive from 12-16 days, depending on the workforce size. Those with longer service must receive from 14-20 days.  Leave is pro-rated for part-time employees. Unlimited PTO policies are “deemed” to satisfy the compensable leave requirement.   An employer can get credit toward these minimums for up to 6 paid state or federal holidays.

The QWFA must offer all employees at least one flexibility option though it need not be the same option for all employees.  An employee’s acceptance of the option is voluntary and the employee can withdraw from it. The choices are:

  • A biweekly work schedule of 80 hours over two weeks with the employee receiving overtime after those 80 hours rather than after 40 hours in a week (state and local laws that require an employer to pay overtime other than as set forth in this law for an 80 hour, two-week schedule would be preempted).
  • A “compressed work schedule” in which an employee works longer hours on fewer workdays, i.e., 4-10 hour shifts (here also, any state or local law that requires overtime for such a schedule other than as set forth in this law would be preempted).
  • Job sharing, in which a job is shared among two or more employees.
  • Flexible scheduling, in which an employee’s regular schedule is modified.
  • Predictable scheduling, in which an employer provides a work schedule “with reasonable advanced notice” that is subject to “as few alterations as are reasonably possible.”
  • Telework, allowing work to be done somewhere other than the normal place of business.

The bill has been referred to U.S. House Committee on Education and the Workforce. Given the political environment in our nation’s capital, a prediction about this or any other bill is pure speculation. But given the dramatic impact this bill would bring to American workplaces, for those in the leave management community, this is one to watch.

Note: For my paraphrasing of some popular lyrics in the first two sentences of this blog, thanks and a PSL hat-tip to John Lennon.

 

Oregon Scheduling Law May Increase Cost of Providing Paid Sick Leave

Oregon will likely became the first state to pass a predictable scheduling law. The bill has been sent to Governor Kate Brown, who is expected to sign it. The law would be effective July 1, 2018.

Predictable leave laws add to an employer’s challenge to deal with leave under paid sick leave laws. Let’s assume an employee gives the employer three days’ notice of the need to use a PSL day. The employer could either have another employee work the hours of the employee using PSL or, if appropriate, use a temporary employee. If the employer does neither, the co-workers of the absent employee will simply need to work faster or harder.

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Under the Oregon scheduling law, if an employer requires an employee to work additional hours with less than seven days’ notice (14 days effective July 1, 2020), the employer must pay the employee one hour of compensation as a penalty, sometimes called “predictability pay.” The law purports to have an exception to address an “unexpected employee absence” but the exception seems inadequate.

The exception begins with the employer’s “voluntary standby list” (VSL), which an employer may, but need not, maintain. Employees wishing to work additional hours may sign the list. If an employer needs to fill additional hours due to an unexpected employee absence, the employee must first offer the additional hours to those on the VSL but cannot require them to work the additional hours.  An employee’s signing the VSL seems to be merely an indication that if asked to work additional hours, the employee might be interested.  If someone from the VSL works the additional hours, no predictability pay is due.

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The Intersection of Seattle’s Secure Schedule Ordinance and its Paid Sick Leave Law

I have begun many absence-management seminars for employers by asking them whether they can require an employee to come to work. The answer, of course, is “it depends.” Family and medical leave laws, laws requiring accommodation, paid sick leave laws and various other laws give employees the right to not come to work for specified reasons.

An employee’s absence usually creates a staffing challenge. Seattle’s Secure Scheduling Ordinance (SSO), passed earlier this month and likely to be signed by the mayor, adds to that challenge immensely. While the ordinance applies only to large retail and franchise employers now, one need not look too deeply into the crystal ball to see that “legislative creep” may very well expanseattle-photod SSO’s coverage.

Through a host of procedural requirements, SSO tells employers on how they must schedule, how they must deal with the need for more or less hours than scheduled, and to whom it must offer available hours.  One requirement is that an employee’s schedule must be set 14 days in advance.

Let’s take a simple example. All schedules have been set as required. One day, an employee calls out just before the start of the shift for a reason covered by the Seattle Paid Sick and Safe Time Ordinance. To meet customer demands, the employer must replace that employee’s shift.

Employers have managed this call out issue likely from the beginning of the Republic. The SSO tells employers how they will handle that issue from July 1, 2017 forward. Under the SSO, the employer

  • cannot ask or require the employee who called out to find a replacement (this prohibition is in most of the PSL laws nationwide).
  • cannot schedule or require to work an employee who has had less than 10 hours off since the end of the last work shift. To do so would interfere with an employee’s “right to rest.” An employer can ask that such employee work with less than ten hours between shifts. If the employee consents, the employer must pay the employee time and one-half for the number of lost rest hours (e.g., if a seven hour break, employer pays time and one-half for three hours.)
  • can solicit volunteers through a group communication. If volunteers result from this group effort, the employer need not pay a scheduling penalty.
  • can ask an employee to work hours which are not on his/her set schedule and, if the employee agrees to do so, pay the employee one additional hour of pay, sometimes called “predictability pay.”

There is much more to discuss about Seattle’s SSO. With only Seattle and San Francisco having these ordinances thus far, it is premature to predict development of another mega-trend. But with reports that other major cities are considering similar legislation, such a prediction may be warranted soon.