OLR Bill Analysis

SB 913 (File 76, as amended by Senate “A”)*

AN ACT MANDATING EMPLOYERS PROVIDE PAID SICK LEAVE TO EMPLOYEES.

SUMMARY:

This bill requires most employers that employ 50 or more people in the state to provide certain employees with paid sick leave accruing at a rate of one hour per 40 hours worked. The bill provides paid sick leave to service workers who work in an occupation with one of 68 federal Standard Occupational Classification System titles named in the bill and are paid by the hour.

The earliest service workers can begin accruing sick leave is January 1, 2012. They must meet the following thresholds before they can begin using accrued sick leave: (1) have worked for the employer for at least 680 hours and (2) have worked an average of at least 10 hours a week for the employer in the most recent complete calendar quarter.

Under the bill, the leave can be used for the service worker's illness, injury, and related treatment or for the service worker's child or spouse. A service worker can also use it for reasons related to family violence or sexual assault. Employers that offer other types of paid leave that can be used for the same purposes and accrues at least as quickly are deemed to comply.

The bill excludes manufacturers and certain tax-exempt organizations from its requirements. Also, it does not require covered employers to provide paid sick leave to day or temporary workers or non-hourly employees such as salaried professionals.

The bill permits anyone aggrieved by an alleged violation of the bill to file a complaint with the labor commissioner. The commissioner can impose a civil penalty of up to $ 100 on employers found in violation. It also bans employers from retaliating or discriminating against employees who request or use the leave the bill provides or that the employer voluntarily provides. The labor commissioner can impose a fine of up to $ 500 on employers found in violation of the retaliation ban. The commissioner can also order other appropriate relief such as rehiring or payment of back wages. Parties can appeal the commissioner's decision to the Superior Court.

The bill requires employers to provide employees with notice of the rights and protections it provides and allows the labor commissioner to develop regulations for additional notice requirements.

The bill also specifies that it does not preempt the terms of any union contract in effect before January 1, 2012, or diminish any right provided to any employee under a union contract.

*Senate Amendment “A” strikes the original file and replaces it with this version that (1) exempts manufacturing and certain tax-exempt organizations from the bill; (2) eliminates use of paid sick leave to care for a parent; (3) limits the bill's coverage to “service workers,” defines the term, and includes the occupation titles that are under it; (4) removes the requirement that employees must have worked for an employer at least 520 hours over 12 months and replaces it with requirement that service workers work at least 10 hours a week for the most recently completed calendar quarter; (5) adds the provision that bill does not prohibit an employer from taking disciplinary action against an employee who misuses paid sick leave; (6) expands the ban on retaliatory action by the employer to cover paid sick leave plans that are not required under the bill; and (7) makes other changes.

EFFECTIVE DATE: January 1, 2012

1 — DEFINITIONS

Employer

The bill defines “employer” as any person, firm, business, educational institution, nonprofit agency, corporation, limited liability company or other entity, including the state and its municipalities, that employs 50 or more individuals in the state in any quarter in the previous year, which must be determined annually on January 1. The employee count must be made based upon the quarterly employer wage reports that employers must, by law, submit to the commissioner (CGS 31-225a (j)).

“Employer” does not include (1) any manufacturing business as classified in sectors 31, 32, and 33 of the North American Industrial Classification System (NAICS) or (2) any nationally chartered organization nonprofit tax-exempt organization, in accordance with the federal Internal Revenue Code that provides the following: recreation, child care, and education services. The NAICS codes cover all forms of manufacturing including the following products: food, textiles, wood, petroleum, chemical, plastics, metal, machinery, motor vehicles, aerospace, computer, electronic, and miscellaneous products.

Service Worker and Employee

In the bill “service worker” means an employee primarily engaged in an occupation with one of the following broad or detailed occupation code numbers and titles, as defined by the federal Bureau of Labor Statistics Standard Occupational Classification system or any successor system:

Title

Code

Title

Code

Food Service Managers

11-9050

Medical and Health Services Managers

11-9110

Social Workers

21-1020

Social and Human Service Assistants

21-1093

Community Health Workers

21-1094

Community and Social Service Specialists, All Other

21-1099

Librarians

25-4020

Pharmacists

29-1050

Physician Assistants

29-1070

Therapists

29-1120

Registered Nurses

29-1140

Nurse Anesthetists

29-1150

Nurse Midwives

29-1160

Nurse Practitioners

29-1170

Dental Hygienists

29-2020

Emergency Medical Technicians and Paramedics

29-2040

Health Practitioner Support Technologists and Technicians

29-2050

Licensed Practical and Licensed Vocational Nurses

29-2060

Home Health Aides

31-1011

Nursing Aides, Orderlies and Attendants

31-1012

Psychiatric Aides

31-1013

Dental Assistants

31-9091

Medical Assistants

31-9092

Security Guards

33-9032

Crossing Guards

33-9091

Supervisors of Food Preparation and Serving Workers

35-1010

Cooks

35-2010

Food Preparation Workers

35 -2020

Bartenders

35-3010

Fast Food and Counter Workers

35-3020

Waiters and Waitresses

35-3030

Food Servers, Nonrestaurant

35-3040

Dining Room and Cafeteria Attendants and Bartender Helpers

35-9010

Dishwashers

35-9020

Hosts and Hostesses, Restaurant, Lounge and Coffee Shop

35-9030

Miscellaneous Food Preparation and Serving Related Workers

35-9090

Janitors and Cleaners, Except Maids and Housekeeping Cleaners

37-2011

Building Cleaning Workers, All Other

37-2019

Ushers, Lobby Attendants, and Ticket Takers

39-3030

Barbers, Hairdressers, Hairstylists, and Cosmetologists

39-5010

Baggage Porters, Bellhops, and Concierges

39-6010

Child Care Workers

39-9010

Personal Care Aides

39-9021

First-Line Supervisors of Sales Workers

41-1010

Cashiers

41-2011

Counter and Rental Clerks

41-2021

Retail Salespersons

41-2030

Tellers

43-3070

Hotel, Motel, and Resort Desk Clerks

43-4080

Receptionists and Information Clerks

43-4170

Couriers and Messengers

43-5020

Secretaries and Administrative Assistants

43-6010

Computer Operators

43-9010

Data Entry and Information Processing Workers

43-9020

Desktop Publishers

43-9030

Insurance Claims and Policy Processing Clerks

43-9040

Mail Clerks and Mail Machine Operators, Except Postal Service

43-9050

Office Clerks, General

43-9060

Office Machine Operators, Except Computer

43-9070

Proofreaders and Copy Markers

43-9080

Statistical Assistants

43-9110

Miscellaneous Office and Administrative Support Workers

43-9190

Bakers

51-3010

Butchers and Other Meat, Poultry, and Fish Processing Workers

51-3020

Miscellaneous Food Processing Workers

51-3090

Ambulance Drivers and Attendants, Except Emergency Medical Technicians

53-3010

Bus Drivers

53-3020

Taxi Drivers and Chauffeurs

53-3040

Under the bill, service workers must be (1) paid on an hourly basis or (2) subject to the 1938 federal Fair Labor Standards Act's minimum wage and overtime compensation requirements to be eligible for paid sick leave. These requirements generally exclude managers who have authority to hire and fire staff, professional occupations (such as lawyers and physicians), salespeople, and certain skilled computer professionals.

Furthermore, service worker excludes day or temporary workers, which the bill defines as those who perform work for another on (1) a per diem basis or (2) an occasional or irregular basis, for only the time required to complete the work, whether they are paid by the person for whom such work is performed or by an employment agency or temporary help service, as defined by law.

2, 3(D) & 4 (B)&(C) — PAID SICK LEAVE

Benefit Accrual

Service workers cannot start accruing leave time until January 1, 2012. Those hired before then will start accruing on that date and service workers hired after that date will start accruing on their date of employment. Service workers cannot use the benefit until they have worked at least 680 hours after the benefit starts accruing and they must have worked an average of 10 hours a week for the employer during the most recently completed calendar quarter. The bill does not prevent an employer from allowing service workers to begin accruing time before January 1, 2012.

Service workers accrue one hour of sick leave for every 40 hours of work and they cannot accrue more than 40 hours of sick leave in a calendar year. They can carry up to 40 hours of sick leave into the next calendar year, but cannot use more than 40 hours of leave in any year.

Sick Leave Pay

The bill requires the service worker's compensation while on sick leave to be the greater of (1) the worker's normal hourly wage or (2) the statutory minimum wage required while the worker is on leave. If the service worker's hourly wage varies, the “normal hourly wage” is the average hourly wage paid to him or her in the pay period prior to the leave.

An employer does not have to pay a service worker for unused sick leave upon termination, unless otherwise provided by an employer policy or collective bargaining agreement.

Other Complying Leave

Employers are deemed to be in compliance if they provide other paid leave that (1) accrues at least as quickly as the bill's sick leave and (2) can be used for the same purposes. Under the bill, “other paid leave” includes paid vacation, personal days, or time off.

The bill does not prevent employers from providing a more generous paid leave policy than the bill requires and it allows them to limit the use of any benefits they provide that exceed the bill's requirements.

Hour, Shift, and Benefit Flexibility

The bill permits employers to allow, but not require, service workers to switch shifts or work extra hours in lieu of using sick leave. The different shifts or extra hours must be (1) upon the mutual consent of the employer and service worker and (2) during the same or following pay period as the sick leave. Employers can also allow service workers to donate any unused sick leave to their co-workers.

Job Termination and Accrued Sick Leave

Under the bill, any termination of a service worker's employment, whether voluntary or not, is construed as a break in service with that employer. If a service worker is rehired after such a break in service, he or she is not entitled to use any sick leave that was accrued before the service worker was separated from the job. The service worker begins accruing sick leave time anew in accordance with the bill's provisions.

3 (A) & (C) — PERMITTED USES

The bill requires an employer to allow a service worker to use paid sick leave for his or her, or a spouse's or child's:

1. illness, injury, or health condition;

2. medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; or

3. preventive medical care.

The bill defines a “child” as an employee's biological, adopted, or foster child, stepchild, legal ward of an employee, or a child of an employee acting instead of a parent, when the child is either under 18 years old or over 18 but incapable of self-care due to mental or physical disability. A “spouse” means a husband or wife.

The bill also requires employers to provide paid sick leave when the service worker is a victim of family violence or sexual assault for:

1. medical care or psychological or other counseling for physical injury or disability,

2. services from a victim services organization,

3. relocating, or

4. participation in any civil or criminal legal proceedings.

Family violence is any physical harm or threatened act of violence that constitutes fear of such harm between family or household members. Sexual assault includes all penal code crimes of unlawful conduct with the intimate parts of another person's body, except aggravated sexual assault of a minor (CGS 53a-70c).

Under the bill, an employer does not have to provide paid sick leave for any reasons not specified in the bill.

3 (B) — PERMITTED REQUIREMENTS OF THE SERVICE WORKERS

The bill allows employers to require that service workers provide notice (1) up to seven days before taking the leave if it is foreseeable or (2) as soon as practicable if it is not foreseeable.

If the leave is for three or more consecutive days, the employer can require reasonable documentation verifying the leave's purpose. Table 1 shows the bill's definitions of reasonable documentation.

Table 1: Documentation Needed for Sick Leave

Type of Leave

Documentation

For mental or physical illness, treatment of an illness or injury, mental or physical diagnosis, or preventive medical care for the service worker or the employee's child, or spouse

Documentation signed by the health care provider treating the service worker or the service worker's child or spouse and indicating the need for the number of days of the leave

For a victim of family violence or sexual assault

A court record or documentation signed by an employee or volunteer working for a victim services organization, an attorney, police officer, or other counselor involved with the service worker

5 — ENFORCEMENT

Retaliation Prohibited

The bill bans most employers from terminating, suspending, constructively discharging, demoting, unfavorably assigning, refusing to promote, disciplining, or taking any other adverse employment action against an employee because the employee (1) requested or used paid sick leave as provided by the bill or in accordance with the employer's own paid sick leave policy or (2) filed a complaint with the labor commissioner alleging an employer violated the bill's provisions.

Since this portion of the bill uses the term “employee” rather than “service worker,” it applies to a broader number of workers than the rest of the bill, which is focused on certain job classification codes. This extends the retaliation ban to all employers with 50 or more employees, excluding manufacturers and the tax-exempt organizations described in the bill, that provide their own paid sick leave. Thus, employers will fall into one of three groups: (1) covered by all the bill's provisions, (2) covered by only the retaliation ban, and (3) exempt from the bill.

Complaints, Hearings & Penalties

Employees aggrieved by a violation of the bill's provisions may file a complaint with the labor commissioner. The commissioner may hold a hearing on the complaint and, after the hearing, any employer who is found by a preponderance of the evidence, to have violated the:

1. general provisions of the bill will be liable to the Labor Department for a civil penalty of up to $ 100 for each violation and

2. retaliation provision of the bill will be liable to the department for a civil penalty of $ 500 for each violation.

The commissioner can award the employee all appropriate relief, including the payment for used paid sick leave, rehiring or reinstatement to the employee's previous job, payment of back wages, and reestablishment of benefits for which the employee was otherwise eligible if not for the retaliatory personnel action or being discriminated against. Aggrieved parties can appeal the commissioner's decision to Superior Court.

The bill requires the labor commissioner to administer the bill's enforcement provisions within available appropriations.

6 — EMPLOYEE NOTICE

The bill requires each covered employer to provide notice to each employee at the time of hiring that:

1. the employee is entitled to paid sick leave, the amount provided, and the terms under which it can be used;

2. the employer cannot retaliate against the employee for requesting or using sick leave; and

3. the employee can file a complaint with the labor commissioner for any violation.

An employer can comply with this requirement by displaying a poster with the required information in English and Spanish in a conspicuous place, accessible to employees, at the employer's place of business. The bill authorizes the labor commissioner to adopt regulations establishing additional notice requirements. It requires him to administer the notice provision within available appropriations.

COMMITTEE ACTION

Labor and Public Employees Committee

Joint Favorable

Yea

6

Nay

5

(03/03/2011)

Judiciary Committee

Joint Favorable

Yea

21

Nay

15

(04/26/2011)

Appropriations Committee

Joint Favorable

Yea

28

Nay

24

(05/09/2011)