Arizona Fair Wages and Healthy Families Act: A PSL-4Step Analysis

Arizona voters last November approved Proposition 206, The Fair Wages and Healthy Families Act. The Act requires most Arizona employers to allow employees to accrue paid sick leave, effective July 1, 2017. It also increases the minimum wage in increments.

Legal challenges to the constitutionality of that law by a cadre of business interests have been unsuccessful, thus far. On March 14, in a one-paragraph opinion, the Arizona Supreme Court rejected the argument that the Proposition was unconstitutional. The Court stated that it would issue a “written opinion further explaining the Court’s decision … in due course” but has not yet done so.

The Arizona Industrial Commission (AIC) issued a Notice of Proposed Rulemaking concerning the Act on May 5, 2017. The comment period ended on June 5, 2017. The AIC also issued Frequently Asked Questions (FAQs) about Minimum Wage and Earned Paid Sick Time, updated most recently on May 19, 2017.saguaro-232762_640

Here, I use the PSL-4Step framework to analyze The Arizona Fair Wages and Healthy Families Act.

Step 1: Does it apply?

“Employer” includes every type of business entity, political subdivision of Arizona, individual or other entity “acting directly or indirectly in the interest of an employer in relation to an employee” excluding the State of Arizona and the United States.

“Employee” means any person who is employed by an employer but does not include anyone employed by a parent or a sibling, or who is employed performing babysitting services in the employer’s home on a casual basis. The term also includes recipients of public benefits working as a condition of receiving public assistance. There are no salary-based exemptions.

The earned paid sick time provisions (referred to in this blog as PSL) are effective July 1, 2017 except if a labor contract is in effect at that time, the law takes effect upon the expiration of that contract.

An employer and union may “expressly waive[]” any or all of the law’s PSL requirements in their labor contract by using “clear and unambiguous terms.”   (Help me understand the logic of that provision.) Continue reading

Vermont Earned Sick Time Law: PSL-4Step Analysis

The Vermont Earned Sick Time law was enacted in March 2016. The Vermont Commissioner of Labor has issued “sick time rules” to “clarify practices and policies in the administration and enforcement” of the law. Here, I analyze the law and rules using the PSL-4Step framework.

Step 1: Does it apply?

Effective Date:  January 1, 2017, except that the law does not apply to an employer with five or fewer employees who are employed for an average of no less than 30 hours per week during the previous calendar year, i.e., a small employer, until January 1, 2018. A “new employer” is not subject to the law until one year after the employer hires its first employee. The effective date of the DOL’s rules is January 15, 2017.

Employer Definition: “Employer” includes every type of business entity and any common carrier by rail, motor, water, air or express company doing business or operating with Vermont.

Employee Definition: “Employee” means any person employed by an employer for an average of at least 18 hours per week during a year.  “Employee” does not include

federal employees;

state employees who are either exempt or excluded from the State classified service but not an individual that is employed by the State in a temporary capacity;

an individual under 18 years of age;

an individual employed for 20 weeks or fewer in a 12-month period in a job scheduled to last 20 weeks or fewer;

an employee who works on a per diem or intermittent basis, i.e., who  works only when he or she is available to work, is under no obligation to work for the employer offering the work, and  has no expectation of continuing employment with the employer;

an employee of a “health care facility” or “facility” if the employee only works on a per diem or intermittent basis;

a sole proprietor or partner owner of an unincorporated business who is excluded from the provisions of chapter 9 of this title  (employer’s liability and workers compensation); or an executive officer, manager, or member of a corporation or a limited liability company for whom the Commissioner has approved an exclusion from the provisions of chapter 9 of this title;

an employee of a school district, supervisory district, or supervisory union employed pursuant to a policy on substitute educators who is under no obligation to work a regular schedule and is not under contract or written agreement to provide at least one period of long-term substitute coverage, defined as 30 or more consecutive school days in the same assignment.

Primary Place of Work: An employee whose primary place of work is in Vermont is eligible to accrue and use earned sick time (PSL) under this law, regardless of the employer’s primary location. If an employee’s primary place of work is in Vermont, all of the employee’s hours of work are counted for accrual, regardless of where the work is performed.

 Step 2:  The Benefit

Accrual: One hour of leave for every 52 hours worked, including overtime hours, beginning the first day of employment. An employer may impose a waiting period of up to one year before an employee can use accrued leave (for those employed on January 1, 2017, an employer may require a waiting period that ends no later than December 31, 2017). Between January 1, 2017 and December 31, 2018, an employer may cap use at 24 hours per annual period; this minimum cap increases to 40 hours on January 1, 2019.

NOTE: for small employers, the waiting period must end no later than December 31, 2018.

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Timing of Accrual Calculation:  The amount of accrued sick time shall be calculated as it accrues during each pay period or quarterly, although an employee may use earned sick time as it accrues (assuming the employee is beyond the employer’s waiting period). Continue reading

Spokane Earned Sick and Safe Leave Ordinance: PSL-4Step Analysis

In January 2016, the City Council of Spokane, Washington overrode the mayor’s veto to enact the Earned Sick and Safe Leave Ordinance. Ten months later, in November 2016, Washington State voters approved Initiative 1433, which requires employers statewide to provide paid sick leave. In response to I-1433, the City Council of Spokane amended its ordinance to have it “sunset” upon I-1433’s implementation. Here, I use the PSL-4Step framework to analyze the Spokane ordinance.

Step 1: Does it apply?

Effective Date: The Earned Sick and Safe Leave Ordinance (referred to in this blog as PSL) is effective January 1, 2017 and will “sunset” on December 31, 2017 unless the implementation of Initiative 1433 has been delayed beyond January 1, 2018. If there is a delay in I-1433’s implementation, the Spokane PSL will continue until I-1433 becomes effective.

Any business that received its first registration after the Spokane ordinance was enacted (January 11, 2016) but before January 1, 2017 shall not be subject to the ordinance for a period of one year from the date of the first business registration.

Employer Definition: “Employer” includes every type of business entity or any “person or group of persons” acting in the interest of an employer, having a permanent location in the City of Spokane, and having at least one employee who performs more than 240 hours of work in the City of Spokane. “Employer” does not include federal, state, county or local government employees; any business owned and operated by one person (or one person and his or her spouse) with zero employees; and any federally recognized Indian tribe.

Employee Definition: “Employee” means any person who performs work in the City of Spokane for compensation including part time employees, but does not include occasional employees (those who work fewer than 240 hours per year within Spokane), seasonal (“term of employment expected to last less than one year and which is intermittent or recurs annually”), domestic workers, work-study students, those engaged in “construction work,” and employees who are immediate family members of business owners, or independent contractors. Continue reading

Arizona Fair Wages and Healthy Families Act: PSL-4Step Analysis

Last week, Arizona voters approved The Fair Wages and Healthy Families Act. Here, I use the PSL-4Step framework to analyze that Act.

Step 1: Does it apply?arizona-state-seal-color

“Employer” includes every type of business entity, political subdivision of Arizona, individual or other entity “acting directly or indirectly in the interest of an employer in relation to an employee” excusing the State of Arizona and the United States.

“Employee” means any person who is employed by an employer but does not include anyone employed by a parent or a sibling, or who is employed performing babysitting services in the employer’s home on a casual basis. The term also includes recipients of public benefits working as a condition of receiving public assistance.

The earned paid sick time provisions (referred to in this blog as PSL) are effective July 1, 2017 except if a labor contract is in effect at that time, the law takes effect upon the expiration of that contract.

An employer and union may “expressly waive[]” any or all of the law’s PSL requirements in their labor contract by using “clear and unambiguous terms.”   (Help me understand the logic of that provision.)

Step 2:  the Benefit

Accrual: One hour of leave for every 30 hours worked, beginning the first day of employment (or July 1, 2017 for then-current employees). Those employed on July 1, 2017 may use leave as it accrues. For those hired after July 1, 2017, accrued leave may be used on the 90th calendar day of employment. An employer may cap accrual and use at 40 hours per year (any consecutive 12 month period as determined by employer) except that employers with fewer than 15 employees may cap accrual and use at 24 hours per year.

Exempt Employees: Are assumed to work 40 hours weekly unless their normal work week is less than 40 hours, in which case PSL accrues based upon that normal work week.

Rate of Pay: The “same hourly rate and with the same benefits, including health care benefits, as the employee normally earns during hours worked” but not less than the federal minimum wage.

Unused Hours: Carried over to the following year, subject to use limits set forth in “Accrual” section above. An employer may elect to pay an employee for unused sick time at the end of the year if the employer frontloads the employee’s sick time accrual, which would be available for immediate use, at the beginning of the subsequent year.

Alternatives to Accrual: An employer may frontload sick time.

Uses of PSL:

  • Employee’s or family member’s illness, injury or health condition (including diagnosis, care or treatment) or preventative medical care;
  • When employee’s workplace, or employee’s child’s school or place of care is closed by a public official for a health reason;
  • Care for employee or family member when presence in the community may jeopardize the health of others because of his or her exposure to a communicable disease, regardless of whether the individual actually has the communicable disease;
  • Reasons due to domestic violence, sexual violence, abuse or stalking, provided the absence is to obtain related services, i.e. medical attention, services from a domestic violence or sexual violence program or victim services organization; psychological or other counseling; relocation or taking steps to secure an existing home; legal services.

Minimum Increments of Use: PSL may be used in “the smaller of hourly increments of the smallest increment that the employer’s payroll system uses to account of absences or use of other time.”

Step 3: Common Clauses

Continue reading

Washington Initiative 1433: PSL-4Step Analysis

I recently introduced the PSL-4Step framework to analyze a PSL law. Here, we use that framework to report on Washington state’s Initiative 1433, which was approved by voters last week.wa-seal

Step 1: Does it apply?

Effective January 1, 2018, “every employer” shall provide “each of its employees” PSL under this Initiative.

Step 2:  the Benefit

Accrual: One hour of leave for every 40 hours worked, beginning the first day of employment, which may be used on the 90th calendar day of employment. Amount of accrual is uncapped.

Rate of Pay: The greater of the state minimum hourly wage or employee’s normal hourly compensation.

Unused Hours: Carried over to the following year, but employer may cap the carryover at 40 hours.

Alternatives to Accrual: Frontloading allowed if it “meets or exceeds” the law’s requirements for accrual, use, and carryover of PSL.

Uses of PSL:

  • Employee’s or family member’s illness, injury or health condition (including diagnosis, care or treatment) or preventative medical care;
  • When employee’s workplace, or employee’s child’s school or place of care is closed by a public official for a health reason;
  • Leave under the state’s domestic violence leave act;
  • Other reasons permitted by the employer.

Step 3: Common Clauses

Continue reading

Introducing the PSL-4Step Framework of Analysis

With each new paid sick leave law—we are now up to forty—the compliance challenge for employers grows. Those tracking PSL developments must have a sense of each applicable PSL law and some basis for assessing which laws or provisions are more favorable or less favorable to employers or employees.

While many organizations publish summaries of a PSL law, the lack of consistency in the structure of those summaries leaves it to the reader to sort through the summary, pull out what matters, synthesize it and incorporate it into his or her PSL understanding. This asks too much of the reader. There must be a more efficient way, but what is it?

How to respond to that question has been marinating in my mind for some time.  I have reached a point where I am prepared to propose my “PSL-4Step” to the leave management community for its consideration. The goal of the PSL-4Step is to be a framework for analyzing any PSL law in a consistent, methodical and efficient manner and to provide a basis for comparing that PSL law to other PSL laws, at least generally. It can also provide a framework for drafting a PSL policy or incorporating such a policy into a leave management program.  Here are the four steps:

Step 1: Does the PSL law apply?

Step 2: What is the PSL benefit?

Step 3: How does the PSL law deal with the “common clauses”?

Step 4: Are there any unique provisions in this PSL law?

Let’s take them one at a time. Continue reading