A4 Albuquerque Journal

TUESDAY, SEPTEMBER 12, 2017

Pros and cons of the The Healthy Workforce Ordinance is a citizen-initiated sick leave law
that will appear on the back page of the city of Albuquerques Oct. 3
Healthy Workplace Ordinance ballot. What follows are the key provisions of the measure, and, in
many cases, arguments for and against those provisions.

KEY PROVISION OPPONENTS PROPONENTS

Who would it cover?
Any business with an office in Albuquerque, regard-
less of size, including nonprofits and charitable organiza-
tions, would be required to provide paid sick leave to all its
employees including part-time, seasonal and temporary
workers who work 56 hours a year. The paid sick leave
requirements would also apply to the city of Albuquerque.
This ordinance covers far more workers than most other This ordinance will ensure that workers dont have to
sick leave ordinances. It will hurt businesses, result in fewer choose between their paychecks and caring for them-
jobs and drive up prices for customers. The ordinance will selves or a loved one. Many Albuquerque workers are part-
be especially hard on small businesses that are already time and they also need to be able to take sick time off.
struggling to make ends meet. It also will drive businesses
to the county or nearby cities, which dont have such an
ordinance.

Who is exempt?
State employees are exempted from the ordinance and
unionized businesses are given the ability to opt out of it
through their collective bargaining agreements. But the
ordinance does not specifically exempt tribal or federal
employees.
Exempting unions from the ordinance would coerce
union membership, essentially sending the message that
employers can avoid this law by unionizing their busi-
nesses. And exempting state employees, but not tribal and
federal employees, illustrates the lack of consistency with
this ordinance.
The ordinance merely recognizes that employees who
are unionized are on an equal bargaining footing with their
employers, unlike employees who are not part of a union. It
doesnt coerce or encourage union membership. The ordi-
nance applies to entities required to have a city business
license or business registration and it therefore wouldnt
apply to the federal government or tribes.

How much time do workers accrue? All companies will be required to retool their sick leave Employers with more generous benefits than what is
Employees would accrue at least one hour of paid sick policies, because they wont be in compliance with this law. outlined wouldnt have to change their policies. Propo-
time for every 30 hours worked. An employee working 40 Also, the growing number of businesses that offer a Paid nents insist the ordinance would not require employ-
hours a week would earn nearly 70 hours of paid sick time Time Off or PTO policy, which allows employees to ers that offer the PTO packages to provide a separate
in a year. The sick time would begin to accrue on the first accrue a certain number of paid days off regardless of rea- accounting for sick leave as long as the total days accrued
day of employment and employees would be allowed to son, will have to carve out specific sick leave policies. meets the ordinance.
begin using it 90 days into their employment. Employers
with 40 or more workers would be required to allow each
employee to use up to 56 hours of paid sick time in a year;
employers with fewer than 40 workers would be required to
allow each employee to use up to 40 hours of paid sick time
in a year. Paid sick time would be carried over to the follow-
ing year, but it wouldnt have to be paid out if an employee
leaves.
Employers with a paid leave policy that meets or exceeds
the requirements of the ordinance would not be required to
provide additional paid sick time or reduce benefits.

What are the eligible reasons for using paid sick time?
Employees can use paid sick time to care for themselves
or a family member. It would also cover absences due to
domestic violence, sexual assault or stalking suffered by
the employee or an employees family member, if that leave
is to get medical or psychological treatment, relocate, pre-
pare for or participate in legal proceedings or obtain related
services.
Employees would only be allowed to require documenta-
tion that paid sick time was used for a covered purpose if
the employee were to use three or more consecutive days.
But an employer that requires documentation for paid sick
time is responsible for paying all out-of-pocket expenses
the employee incurs in obtaining the documentation.
The definition for family member is very broad and allows
employees paid time off to take care of anyone they con-
sider family or are close to, regardless of whether they
are actually related. They also question why the employer
should pay for expenses incurred when requiring an
employee to get a doctors note showing they are sick. The
ordinance wouldnt allow an employer to require a worker
to call in when that worker is going to be out sick.
Its important to recognize the range of family relation-
ships people have and to allow employees to take paid
sick time off to exercise those care-giving responsibilities,
even when they are not related to an individual by blood
or marriage. The requirement that employers pay any
out-of-pocket expenses incurred for obtaining a doctors
excuse after being absent for three or more consecutive
days is included so that an employee doesnt get stuck
with a costly doctors bill when that employee merely has a
cold or the flu and needs to rest. Nothing in the ordinance
prohibits an employer from establishing a policy requiring
employees to call in when theyre going to be out sick.

Retaliation clause
The ordinance establishes rebuttable presumption of a
violation if an employer takes any adverse action against an
employee within 90 days of the employee taking paid sick
time. In other words, if an employee files a complaint alleg-
ing that he was suspended, fired, had his hours reduced,
didnt get additional hours, was assigned to less favorable
duties, or was reported to law enforcement in retaliation for
taking a paid sick day, the employer will be presumed to
have retaliated against the employee if any of the adverse
actions were taken within 90 days of the employee taking
the sick day.
This makes it difficult for an employer to discipline or
terminate a worker for any reason within 90 days
of that employee taking sick leave for fear that they will
be accused of retaliating against him or her, which is a
punishable violation. It puts the onus on the employer to
prove why they would discipline an employee and is an
incentive for employees to take sick leave to prevent being
disciplined.
Rebuttable presumption of retaliation merely means
an employer must provide a cause for termination or
other disciplinary action if it happens within 90 days of an
employee taking sick time. Employers already do this with
employees who are terminated when they seek unemploy-
ment insurance. It doesnt limit an employers right to disci-
pline, lay off or fire an employee for cause.

Paperwork
Employers would be required to maintain payroll records
for each employee showing weekly hours worked, wages
paid and amount of paid sick time accrued or used each
pay period. Those records must be maintained for four
years. Employers who fail to maintain records would be
subject to rebuttable presumption that the employer has
violated the ordinance.
The ordinances record-keeping requirements are oner- Under state law, all employers are already required to
ous, creating yet another burden for businesses. The maintain payroll records for all employees for more than
four-year record-keeping requirement would be among the four years.
longest in the nation. Employers will have to keep records
on everyone even a two-week fill-in or summer intern, in
case they return within four years.

Citys role
The city will enforce the ordinance, will have the authority
to investigate and inspect records, and will be required to
enforce the law on behalf of an aggrieved worker. Employ-
ers found to be in violation will be liable for a civil penalty of
$50 a week, not to exceed $500.
The city will have to pay to have another layer of
bureaucracy overseeing business, in effect turning the
city into private businesses HR departments. The penal-
ties also create a monetary incentive for the city to find
non-compliance.
The city is already enforcing Albuquerques minimum
wage ordinance and would become involved only when a
violation is alleged. The $50-a-week penalty encourages
businesses to come into compliance with the law quickly.

Who can sue? The ordinance opens the door to punitive litigation. Employ- These provisions ensure that employers dont have an
The city, an employee or any entity the employee is a ees who sue their employer and win will get triple monetary incentive to violate the law. Without them, there would be
member of, has the right to file a lawsuit individually or as damages and attorney fees. An employer who prevails gets no incentive for an employer to adhere to the ordinance.
a class action within four years of the alleged violation. If nothing. The ordinance also creates an instant right to a
successful, the plaintiff has the right to recover all costs class action lawsuit, without any of the typical safeguards.
for bringing the suit, reasonable attorney fees and dam-
ages equal to three times the value of the unpaid sick
time accrued. If a court finds that an employer retaliated
against a worker, that worker will be entitled to recover
actual damages, including back pay, and will have a right to
reinstatement.

Can the ordinance be changed?
The City Council is prohibited from making any changes
to the ordinance that change the effective date or lessen the
substantive requirements of the ordinance or its scope of
coverage.
This provision appears to violate the City Charter and
infringes on the City Councils authority. Its also bad public
policy because it wont allow the council or future councils
to amend the ordinance to address problems that arise
from this initiative.
Allowing the City Council to significantly change an ini-
tiative that has been approved by voters would completely
gut the City Charters ballot initiative provision. Major
changes to approved ballot initiatives can be done only by
the voters. The language in the ordinance actually gives
the council the authority to make changes to the imple-
mentation and enforcement provisions in order to achieve
the intent of the law.

Paid sick leave is it vital for workers or a job killer?

From PAGE A1
For the past 16 months, Albu-
querque has been ground zero in
what has become a nationwide
push to require businesses to
provide paid sick time to every
employee. Earlier this summer,
Arizona joined six other states
including California, Oregon and
Washington in requiring paid
sick leave. More than two dozen
cities have enacted sick leave leg-
islation, although Albuquerque
would be the first in New Mexico
to do so if the measure passes.
Voters in Denver rejected man-
datory paid sick leave in 2011.
Locally, the push for paid sick
leave began in May 2016 when a
coalition of left-leaning groups
including OL New Mexico,
the SouthWest Organizing Proj-
ect and El Centro de Igualdad y
Derechos began gathering sig-
natures to get the proposed ordi-
nance on the ballot. They suc-
ceeded, collecting 24,000, roughly
10,000 more than required.
Several court battles have
ensued.
The tug of war also has played
out before the Bernalillo County
Commission which refused to
place the measure on last years
general election ballot and the
Albuquerque City Council, which
has spent hours considering how
the sick leave question should be
presented to voters.
Actively opposing the measure
is the Albuquerque Coalition for
a Healthy Economy, a group of
about 31 members that include
the New Mexico Restaurant Asso-
ciation; the Rio Grande Founda-
tion; NAIOP, the commercial real
estate development association;
the Greater Albuquerque Cham-
ber of Commerce; and the Albu-
querque Hispano Chamber of
Commerce.
Mountains of red tape
The Sick Ordinance is bad
for Albuquerque, Terri Cole,
president and CEO of the Greater
Albuquerque Chamber of Com-
merce, told the Journal on Fri-
day. Mountains of red tape and
onerous regulations will drive
business out and keep new busi-
ness out of our city. Workers lose.
Customers lose. The only win-
ners are special interests.
Among the concerns raised by
opponents is that employees have
the right to take sick leave if any
member of their family or anyone
they consider to be like family is
sick; that there is a rebuttable pre-
sumption that any adverse action
against an employee taken within
90 days of the employee being out
sick is retaliation; and, they say,
many companies would have to
change their policies regarding
paid time off.
Robert Vick, owner of Vicks
Vittles Country Kitchen, told the
City Council in July that he has
halted plans to expand his res-
taurant because of the proposed
ordinance. He said the proposed
ordinance would cost businesses
a lot of money and open them up
to litigation.
Its totally one-sided, and I
think its going to hurt us, he
told councilors.
Lynne Anderson, president of
NAIOP, told councilors at that
same meeting that the business
community isnt against paid sick
leave.
Most of my members pay
paid sick leave, she said. But
this one, the way this is written,
it would be so detrimental. I
already have members telling
me theyre going to have to move
out of the city. It will affect gross
receipts tax. It will affect the
economy.
NAIOP and several others filed
a lawsuit earlier this year chal-
lenging the sick leave proposal.
The suit was dismissed last
month, but on Friday, Pat Rog-
ers, their attorney, filed notice
that they plan to appeal the deci-
sion to the state Court of Appeals.
The state Supreme Court
earlier this month rejected an
emergency petition to keep the
ordinance off the ballot, but jus-
tices left the door open for Rogers
to appeal the ruling through the
regular channels.
Business proponent
Not all members of the busi-
ness community are opposed to
the proposed law.
Ken Carson, owner of Nexus
Brewery, has been speaking in
favor of it and even has appeared
in a radio ad in which he says that
employees who go to work sick
can make customers sick.
I support the earned sick days
question because I know its good
for my business, he has told city
councilors.
Carson said he already pro-
vides paid sick leave for his
employees.
I feel like its good for our cus-
See PAID >> A14