Agenda Item 6
July 19,2016
Public Hearing
MEMORANDUM
July 15,2016
TO:
County Council
FROM:
Robert H. Drummer, Senior Legislative Attorney
~
SUBJECT:
Public Hearing:
Bill 27-16, Human Rights and Civil Liberties - Earned Sick and Safe
Leave - Eligibility
Bill 27 -16, Human Rights and Civil Liberties - Earned Sick and Safe Leave - Eligibility, sponsored
by Lead Sponsor Councilmember Leventhal and Co-Sponsors Vice President Berliner and
Councilmember Rice, was introduced on June 28, 2016. A Health and Human Services Committee
worksession is tentatively scheduled for August 1, 2016 at 10: 15 am.
Bill 27-16 would exempt a seasonal employee who works for less than 120 calendar days in a year
at an amusement or recreational program that operates for less than 120 calendar days each year in the
County from the earned sick and safe leave law.
It
would also provide that an employee working in the
County who is paid exclusively on a commission basis accrues only unpaid sick and safe leave.
Background
Bill 60-14, Human Rights and Civil Liberties - Earned Sick and Safe Leave, enacted on June 23,
2015 and signed into law on July 2,2015, requires an employer doing business
in
the County to provide
each employee with 1 hour of earned sick and safe leave for every 30 hours worked in the County up to
56 hours in a year. Bill 60-14 was enacted with a delayed effective date of October 1, 2016 to give
employers time to adapt their payroll systems to the new law. The County Office of Human Rights has
been meeting with County businesses over the past year to explain the new law and answer questions.
Seasonal Employee
Bill 27-16 would amend eligibility requirements in the law to exempt a seasonal employee who
works for less than 120 calendar days in a year at an amusement or recreational program that operates for
less than 120 calendar days each year in the County from the earned sick and safe leave law. This
exemption would apply to workers at a seasonal business, such as a summer camp or swimming pool,
which operates for less than 120 days each year.
It
would also exempt a seasonal worker in a summer
camp or other seasonal program open for less than 120 days each year that is operated by an organization
or business that operates other programs throughout the year. However, the exemption would not apply
to an individual who works for the organization or business for more than 120 days in a year. It would
also not exempt an employee who works for less than 120 days each year for an amusement or recreational
program that is open for more than 120 days each year. The exemption would also not apply to an
employee who works for less than 120 days each year for a program that is not providing amusement or
recreational services.
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The current law will require an employer to provide earned sick and safe leave for an employee
during an initial 90-day probationary period, but prohibits the employee from using the leave until after
the initial 90-day probationary period is over. The current law will also require an employer to reinstate
any unused earned sick and safe leave that the employee had when the employee left employment if the
employee is rehired within 9 months. Therefore, under current law, a summer camp counselor employed
for an 8-week camp season will never be able to use the earned sick and safe leave earned during the 8­
week season unless the individual is rehired within 9 months after leaving. Bill 27-16 would simply
exempt this employee from the earned sick and safe leave law.
Commission Employee
One of the questions that arose from discussions with employers was how to treat an employee
who is paid exclusively by a commission on sales. Bill 60-14 is silent on this issue. Bill 27-16 would
provide that an employee who is paid exclusively by commission on sales would earn only unpaid sick
and safe leave.
An
employee who is paid a base salary and earns a commission on sales would be eligible
to earn paid sick safe leave paid at the rate of their base salary. An employee who is paid no base salary
and only earns a commission on sales would be eligible for unpaid sick and safe leave.
This packet contains:
Bill 27-16
Circle
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Legislative Request Report
F:\LA w\BILLS\1627 Sick Leave - Exemptions\PH Memo.Docx
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Bill No.
27-16
Concerning: Human Rights and Civil
Uberties - Earned Sick and Safe
Leave - Eligibility
5
Revised: July 8, 2016 Draft No.
Introduced:
June 28. 2016
Expires:
December 28. 2017
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effective:
October 1. 2016
Sunset Date: ----'-'.N""'on...."e'---_ _ _ _ __
ChI _ _, Laws of Mont. Co. _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
Lead Sponsor: Councilmember Leventhal
Co-Sponsors: Vice President Berliner and Councilmember Rice
AN
ACT to:
(1)
(2)
(2)
exempt certain seasonal employees who work for certain amusement or recreational
establishments in the County from the earned sick and safe leave law;
provide that certain employees who are paid exclusively on a commission basis accrue
only unpaid sick and safe leave; and
generally regulate the eligibility for sick and safe leave benefits provided to an
employee working in the County for certain employers.
By amending
Montgomery County Code
Chapter 27, Human Rights and Civil Liberties
Article XIII, Earned Sick and Safe leave
Sections 27-76 and 27-77
Boldface
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface brackets]]
* * *
Heading or defined term.
Added to existing law
by
original
bill.
Deletedfrom existing law
by
original
bill.
Added
by
amendment.
Deletedfrom existing law or the
bill by
amendment.
Existing law unqffected
by bill.
The County Council for Montgomery County, Maryland approves thefollowing Act:
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BILL
No. 27-16
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Sec.
1.
Sections 27-76 and 27-77 are amended as follows:
27-76.
Findings and Definitions.
*
*
*
*
*
*
(b)
Definitions.
As used in this Article:
Abuse
has the meaning defined in Section 4-501 of the Family Law
Article ofthe Maryland Code, as amended.
*
*
*
Commission employee
means an individual who is paid by an employer
exclusively on
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commission basis based upon sales.
*
*
*
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Employee
means any person permitted or instructed to work or be present
by an employer in the County, including a domestic worker as defmed in
Section 11-4B(b). Employee does not include:
(1)
an individual who:
(A) does not have a regular work schedule with the employer;
(B) contacts the employer for work assignments and is
scheduled to work the assignments within 48 hours after
contacting the employer;
(C) has no obligation to work for the employer if the individual
does not contact the employer for work assignments; and
(D) is not employed by a temporary placement agency;
(2)
an individual who regularly works 8 hours or less each week; [or]
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(3) an individual who is an independent contractor; or
ill
an individual who works for less than 120 calendar days
in
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year
at an amusement or recreational program that operates for less than
120 calendar days each year.
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BILL
No. 27-16
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*
27-77.
*
*
Earned Sick and Safe Leave Required.
(a)
Earned sick and safe leave.
An
employer must provide each employee
earned sick and safe leave for work performed in the County paid at the
same rate and with the same benefits as the employee nonnally earns. A
tipped employee must be paid at least the County minimum wage
required under Section 27-68 for each hour the employee uses earned sick
and safe leave. A commission employee must accrue only unpaid sick
and safe leave.
An
employer with fewer than 5 employees must provide
each employee with both paid and unpaid sick and safe leave for work
perfonned
in
the County as required in subsection (c).
An
employee must
accrue paid leave before accruing unpaid leave in a calendar year.
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Sec.2. Effective date.
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This Act takes effect on October 1, 2016.
Approved:
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Nancy Floreen, President, County Council
Date
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Approved:
Isiah Leggett, County Executive
Date
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This is a correct copy ofCouncil action.
48
Linda M. Lauer, Clerk ofthe Council
Date
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LEGISLATIVE REQUEST REPORT
Expedited Bi1127-16
Human Rights and Civil Liberties
-
Earned Sick and Safe Leave
-
Eligibility
DESCRIPTION:
Bill 27-16 would exempt a seasonal employee who works for less than
120 calendar days in a year at an amusement or recreational program
that operates for less than 120 calendar days each year in the County
from the earned sick and safe leave law.
It
would also provide that an
employee working in the County who is paid exclusively on a
commission basis accrues only unpaid sick and safe leave.
Questions have arisen as
to
how to apply the Earned Sick and Safe
Leave Law to a seasonal employee who works for an operation that is
open less than 120 days each year and an employee who is paid
exclusively by a commission on sales.
The goal is to resolve questions that have been asked since the Earned
Sick and Safe Leave Law was enacted.
Office of Human Rights
To be requested.
To be requested.
To be requested.
To be researched.
Robert H. Drummer, Senior Legislative Attorney
To be researched.
PROBLEM:
GOALS AND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
SOURCE OF
INFORMATION:
APPLICATION
WITHIN
MUNICIPALITIES:
PENALTIES:
None.
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