E-Newsletter

October 2008

The City of Milwaukee's Paid Sick Leave Ordinance

Do you have any operations, divisions, departments, retail outlets or stores within the City of Milwaukee's boundaries? If yes, read on.

A referendum will appear on the November 4, 2008 ballot in the City of Milwaukee and, if the referendum receives more than 50% of the vote, the City of Milwaukee Paid Sick Days Ordinance ("Ordinance") becomes law. This means that City of Milwaukee employers will be required to provide nine (9) paid sick days to their employees: full-time, part-time, temporary, hourly and salaried exempt. Employees could use these days for their own illness or to care for a family member. Because this leave may be more generous than the paid sick leave your company already provides, here is the background information you will need to assess this issue.

Background

On June 23, 2008, 9to5 National Association of Working Women submitted a proposed Ordinance entitled the "Milwaukee Paid Sick Days Ordinance" to the City of Milwaukee Clerk for certification. Attached in support of the Ordinance was a petition containing over 40,000 signatures.

By submitting the draft Ordinance and the required number of signatures, 9to5 gave elected officials little choice. After the petition was certified, the City of Milwaukee Common Council had to either pass the Ordinance as is without any modification or substantive hearing or place it on the November ballot. § 9.20 (1), Wis. Stat. On July 31, 2008, the Common Council passed Resolution 080419 which put the issue to the voters on the November ballot. As a result, on November 4, 2008, City of Milwaukee voters will be asked:

"Shall the City of Milwaukee adopt Common Council File 080420, being a substitute ordinance requiring employers within the city to provide paid sick leave to employees?"

Therefore, "if a majority votes in favor of adoption, the proposed Ordinance...shall take effect..." § 9.20 (7), Wis. Stat.

The Ordinance Itself

The Ordinance applies to all "employers within the geographic boundaries of the city." While the Ordinance is unclear as to which party is obligated to provide compensation for sick days in the case of a temporary workforce (the company or the staffing agency), the Ordinance applies to all businesses operating inside the City limits and covers all employees including full- and part-time as well as temporary employees.

The Ordinance requires that employers comply with the following mandates in providing the nine (9) days of paid sick leave:

• Sick leave accrues at the minimum rate of one (1) hour per thirty (30) hours worked, but employers will not be required to provide more than seventy-two (72) hours, or nine 8 hour days, of sick leave per employee in a calendar year, except for employers meeting the Small Business definition (see below). For salaried employees, one work week is the equivalent of forty (40) hours for accrual calculation purposes.
  
  
• Employees of a Small Business cannot accrue more than forty (40) hours, or five days, of paid sick leave. A Small Business is defined as a company that has fewer than ten (10) persons working for compensation during a given week. Under the definition, each employee working for compensation in a week must be counted toward the 10 employee threshold. Two part time employees do not equal one employee. Rather, all employees, whether full-time, part-time or temporary employees, must be counted.
  
  
• Sick leave accrual begins upon the commencement of employment in hour unit increments; however, employees are only entitled to use accrued paid sick days "beginning on the 90th calendar day" after their start date. After the 90th calendar day, employees may use paid sick days as they accrue.
  
  
• Employees can carry over accrued paid sick leave from one calendar year to the next; however, the cap of seventy-two (72) hours per employee, and forty (40) hours for small business employees, still applies.
  
  
• Nothing in the Ordinance requires employers to include these paid sick days when issuing an employee's last paycheck upon termination.
  
  
• Nothing in the Ordinance diminishes the obligation of an employer to comply with any contract, collective bargaining agreement, employment benefit plan or other agreement providing more generous leave to an employee than required by the Ordinance; however, the Ordinance does not exempt an employer that provides less generous benefits, for example, under a collective bargaining agreement.
  

If an employer has a policy that meets the actual requirements of the Ordinance, providing leave for the same purposes and under the same conditions, no additional paid sick leave is required. However, the Ordinance leaves unanswered many questions as to the payment of these sick days such as:

1. If your company currently offers 14 days under a Paid Time Off (PTO) policy, can you simply assign 9 of those days toward the paid sick days requirement or would such action constitute a "retaliatory personnel action" under the Ordinance's enforcement provision?
   
   
2. If one or more of your collective bargaining agreements offers less generous benefits, are you required to raise your paid sick days to the levels specified in the Ordinance or does your contract trump the Ordinance?
   
   
3. If your main work site is outside of the City but your drivers make regular weekly deliveries inside of the City, are you required to accrue and provide these sick days for employees who regularly conduct business in the City?
   

If you are a business operating inside the City limits, you should ensure you know all your options before deciding how to proceed.

If you have any questions about the Ordinance, contact Krukowski & Costello, S.C.'s educational services department at (414) 423-1330.