Bill S.1080

SENATE DOCKET, NO. 1543 FILED ON: 1/18/2019

SENATE . . . . . . . . . . . . . . No. 1080

By Mr. Humason, a petition (accompanied by bill, Senate, No. 1080) of Donald F. Humason, Jr. for legislation to clarify the earned sick time. Labor and Workforce Development.

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE SENATE, NO. 1016 OF 2017-2018.]

The Commonwealth of Massachusetts

_______________

In the One Hundred and Ninety-First General Court
(2019-2020)

_______________

An Act to clarify the earned sick time leave.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1: Section 148C of chapter 149 shall be amended in subsection (a) in the definition of “child” by adding the following sentence after the term “parenthood.”:-

“A child shall be defined as no older than 18 years.”

SECTION 2: Section 1 shall by be further amended by striking out the following definition:- ““Earned paid sick time”, the time off from work that is provided by an employer to an employee as computed under subsection (d) that can be used for the purposes described in subsection (c) and is compensated at the same hourly rate as the employee earns from the employee’s employment at the time the employee uses the paid sick time; provided, however, that this hourly rate shall not be less than the effective minimum wage under section 1 of chapter 151. ” . ” and inserting in place thereof the following new definition:-

“Earned paid sick time’, the time off from work that is provided by an employer to an employee as computed under subsection (d) that can be used for the purposes described in subsection (d) and is compensated at the regular (“straight time” ) hourly rate of pay, provided, however, that this hourly rate shall not be less than the effective minimum wage under section 1 of chapter 151. For those employees who are exempt from overtime requirements under 29 U.S.C. section 213(a)(1) of the Fair Labor Standards Act, the rate of compensation shall be determined by dividing by 40 the employee’s regular weekly salary amount, unless the normal work week is less than 40 hours, in which case the employee’s weekly salary amount shall be divided by the number of hours in the employee’s normal work week. Paid sick time shall be paid at the regular rate of pay regardless of when it is used, and not subject to overtime or time and half rates. An employee may opt-into for additional hours of work at a rate of regular pay at the employer’s discretion. An employee who chooses to work additional hour or shifts during the same or following pay period, in lieu of hours or shifts missed, shall not use accrued paid sick leave”

SECTION 3: Section 1 shall be further amended by inserting after the phrase “Amendments to the Constitution of the Commonwealth” thereof the following definitions: -

““Commission Based” shall be defined by any employee, whose payment is based on commission, and shall not be counted in the employers count for total number of employees.”

“Seasonal Employee” shall be defined as referenced in Section 1 and 24 of Chapter 151A, and not counted for the total number of employees.

“Break in Service”: An employer may establish a break in service policy that states that any termination of an employee’s employment by an employer, whether voluntary or involuntary, shall be construed as a break in service. Should an employee be rehired by the employer following a break in service, the employee shall begin to accrue leave upon hire and shall not be entitled to any unused hours of paid sick leave that had been accrued prior to the service workers’ break in service. If an employee separates from an employer and is rehired by the employer after one year from the date of separation, the sick days are deemed used.”

“90 day period”: A day within the 90 day period is defined as one full workday as defined by the employer or 8 hours.””

SECTION 4: Subsection (d)(7) of Section 1 shall be further amended by striking out the following sentence: - “Earned sick time shall be used in the smaller of hourly increments or the smallest increment that the employer’s payroll system uses to account for absences or use of other time.” and inserting the following phrase:-

“At the discretion of the employer, earned sick time shall be used in increments of 4 or 8 hours, or 50% or 100% of an employer’s normal shift if above 8 hours. Provided further in the aggregate an employee would only be compensated up to 40 hours.”

SECTION 5: Section 1 shall be further amended by inserting after subsection (d)(7) the following sections:-

“(d)(8) For an employer to provide earned paid sick time, an employer must have 11 or more employees for 20 weeks per year. For purposes of determining the total employee count, the chief executive officer, the chief operating officer, the chief financial officer or treasurer, any family member, any independent contractors, any freelancers, any interns, any temporary worker working less than 20 weeks in a given year, any employees not residing in the Commonwealth, any employees working less than 20 weeks a year in the Commonwealth, any employees engaged in workshare, and any employee with a 5% ownership are exempt for the purposes of counting.

(d)(9) Any overtime shall not be counted in the accrual. An employee may not accrue or use more than 40 hours of paid or earned sick time in a calendar or fiscal year as determined by the employer, unless the employer chooses to offer greater leave benefits.

(d)(10) At the discretion of the employer, an employee may be required to use their sick leave or be paid for the leave prior to the end of any calendar year or benefit year.

(d)(11) An employer is not required to provide compensation to an employee for accrued, unused paid sick days upon termination, resignation, retirement, or other separation from employment.

SECTION 6: Subsection (e) of Section 1 shall be further amended by striking the following phrase:- “or the next pay period”

SECTION 7: Subsection (f) shall be amended in Section 1 by striking out the phrase “24 consecutively scheduled work hours.” and replacing it with the following phrase:-

“12 consecutively scheduled work hours. An employer may require an employee to submit documentation from a certificated medical professional for any absence within 24 hours of returning to work. An employer may maintain records of employees that do not provide the certification or refuses to provide certification. An employer has an affirmative defense for terminating an employee that does not provide certification. An employer is held harmless from treble damages, unemployment insurance claims and punitive damages for terminating an employee that has a documented pattern, over any four month period, of non-compliance with certification requirements.”

SECTION 8: Said subsection (f) of Section 1 shall be further by adding the following paragraph:-

“(f)(1) An employer may withhold holiday pay if an employee is scheduled to work on a holiday or receiving holiday wages and calls out sick on the day of the holiday, the day prior to a holiday or the day immediately following a holiday. An employer may establish a policy that prohibits holiday pay unless the employee provides documentation by a certified medical professional within 24 hours of returning to work. The employer may document employee calls out during holidays and may be subject to disciplinary action or termination”

SECTION 9: Subsection (g) Section 1 shall be further amended after the striking “When the use of earned sick time if foreseeable, the employee shall make a good faith effort to provide notice of this need to the employer in advance of the use of the earned sick time” and replacing it with the following new section:-

“(g) When the use of earned sick time is foreseeable, the employee shall provide notice of this need to the employer in advance of the use any earned sick time in the manner designated by the employer. When the use of earned sick time is unforeseeable, the employee shall provide notice of this need to he employer as soon as possible before or after the scheduled start of a work in the manner designated by the employer. Any unforeseen circumstances should be reported during the same day or within 24 hours. Employers are permitted to ask any employee, when they are taking leave. A foreseeable event shall be considered 3 workdays in advance of taking time office. Employers are permitted to create a uniform call-in procedures for use of sick time. Employee violation of said call in or reporting procedure are subject to disciplinary action and termination.”

SECTION 9: Subsection (h) in section 1 shall be further amended after the term “section.” by inserting the following new paragraph:-

“An employer may retain any attendance incentive policy, including those in collective bargaining agreements. The employer shall not be subject to treble, punitive, or liquidated damages. When an employer determines a regular attendance problem is occurring, the employer may require the employee to provide an explanation for the absences or require a notice by a medical practitioner relative to the employee’s absences. An employer may document, and take disciplinary actions that may lead to termination”

SECTION 10: Subsection (k) in section 1 shall be amended by striking the following phrase:- “(k) Employers required to provide earned paid sick time who provide their employees paid time off under a paid time off , vacation or other paid leave policy who make available an amount of paid time off sufficient to meet the accrual requirements of this section that may be used for the same purposes and under the same conditions as earned paid sick time under this section are not required by this section to provide additional earned paid sick time ” and inserting the following new phrase:-

“Employers required to provide earned paid sick time who provides their employees paid time off under a paid time off, vacation or other paid leave policy or under a collective bargaining agreement who provide, advance or makes available an amount of earned or paid as defined in shall retain the accrual and conditions for which an employee may use the leave.”

SECTION 11: The bill shall be amended after subsection (o) by inserting the following six sections:-

“(p) Notwithstanding any special or general law to the contrary, earned sick time shall not be subject to treble damages. An employer shall not be assessed any penalty or liquidated damages under this provision due to an isolated, or unintentional payroll error, or written notice error that is a clerical, or an inadvertent mistake regarding the accrual, or available use of paid sick leave.

(q) The Office of the Attorney General, members of the great and general court and the Executive Office of Labor and Workforce Development shall engage in outreach efforts coordinated by the Office of the Attorney General to communicate to businesses and individuals via website, RSS feeds, blogs, newsletters, all and other forms of communication regarding the earned sick time law, the rules and responsibilities for employers and employees. In particular the Office of the Attorney General must include utilize all print and media network news outlets throughout the Commonwealth regarding the law, and risks and responsibilities, and requirements for employers and employees.

(r) There shall be a fiscal impact statement made by the state Office of the Attorney General regarding the costs associated with analyzing, promulgating, and educating Massachusetts businesses and individuals regarding the new law. The cost associated with this should also itemize the cost associated for businesses to analyze, operationalize and possible risk cost associated with legal cost associated with non-compliance.

(s) There shall be a an bi-annual report by the Office of the Attorney General in coordination with the State Auditor and the State Inspector General shall publish a report on the costs and resources dedicated to educating the public in addition to the costs and resources dedicated to the enforcement of said law. The annual report shall also take into effect the amount of cost and resources granted by any other state offices or constitutional offices. The report shall itemize the number of cases that included earned sick time disputes, the nature of the case and cost associated with any settlement and in separate calculation a cost associated with final court verdicts. The annual report shall also item by case and in the aggregate the total number costs for treble damages.

(t) The office of administration and finance shall compile an annual statewide collective bargaining agreement list that shall itemize the bargaining units total number of members, bargaining agreement total cost for the agreement, and shall also itemize for each collective bargaining agreement the total cost associated with healthcare insurance and associated healthcare cost in addition to an itemized accounting of the collective bargaining units cost associated with earned sick time. The report shall be due each year on January 1. The first report will be due by July 29, 2020.”

(u) Notwithstanding any special law to the contrary, the Secretary of Labor and Workforce development shall send out an annual survey asking Massachusetts employers if the Massachusetts paid sick leave law has changed their staffing levels, if they have chosen to move staff and or their operations out of the state. The secretary shall post the report on his website and report the finding to the Ways and Means.

SECTION 12: The bills is further amended by striking out section 4 and inserting the following:-

“SECTION 4: This act shall take effect on January 1, 2020, provided that in the case of employees covered by a collective bargaining agreement in effect on January 1, 2019, this Act shall apply on the date of the termination of such agreement .

At the discretion of the employer, an employee may only use or be compensated for a total of 40 earned sick time hours during the transition year.

Name:	District/Address:
Donald F. Humason, Jr.	Second Hampden and Hampshire