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Sick-leave ordinance is a cure that’s worse than the illness

The last time the Journal Editorial Board opined on a proposed sick-leave ordinance being taken up by Bernalillo County Commissioners, a primary concern was how quickly the commission seemed poised to push the measure through, and how that haste wouldn’t allow the right kind of collaboration with, and buy-in from, the businesses owners who would be affected.

That was two months ago. We’re still waiting on the collaboration and buy-in.

Yes, the commission did hold off voting; the measure – which in the ensuing weeks morphed into a paid-time-off bill – has gone through some major changes and is up for a vote Tuesday.

But, unfortunately, some serious problems in the bill have not been addressed – and some of the changes that have been made introduce new problems of their own.

A major coalition of business interests – including many local, home-grown, family enterprises – remains steadfastly opposed to the bill, and several of their complaints have merit.

When you work all over: As written, the ordinance, which is targeted at businesses in the unincorporated sections of Bernalillo County, lacks definitions that would make it clear if it applies to the physical premises of a business vs. where it does business. Consider a company that has its office in Albuquerque but sends health care aides or water delivery people to the East Mountains or South Valley. Is the employer supposed to carve out and calculate PTO based on the time spent outside the city limits? The ordinance isn’t clear.

When your businesses are all over: Then there’s the concern from businesses with multiple locations. Say an employee works in the Paradise Hills branch one day, Albuquerque the next, South Valley the next. Is the employer supposed to come up with a formula for that paid leave? And what does that do to collective bargaining agreements designed to ensure all employees at all branches receive the same benefits? One local restaurant chain has already said it would rethink its plans to build a site in the South Valley if this passes.

When you can’t say ‘no’: The ordinance’s shift from sick leave to paid time off presents another problem. While more private-sector companies are moving to PTO programs rather than siloing out sick leave, vacation and holidays – allowing an employee to request time off for whatever reason – they give the employer the ability to approve or deny the request. The county’s proposed ordinance, while recommending advance notice where possible, does not give employers the clear ability to say no, even if it’s a request for a golf outing. This needs to be clarified.

The ordinance does correctly state employers cannot require advance notice for an emergency or illness.

Commissioner Maggie Hart Stebbins in Thursday’s Journal pointed out that the ordinance says employers can set up their own process for requests. But as written, the law states “an employer shall provide earned paid time off upon the request of an employee,” not may.

Employers can’t run a business if every single employee can and does take off to watch the big game, head to Vegas for the bachelor/bachelorette party, celebrate Christmas Eve with family.

When your people aren’t permanent: The ordinance as written also does not provide exceptions for part-time, seasonal or temporary workers who have worked at a company 90 days or more, or for interns working for pay and experience rather than college credit. That might not be an issue for businesses that employ gift wrappers for a few weeks around the holidays, but what about those that hire summer workers like lifeguards or landscapers or fieldhands? For one big construction job or weeks of repairs after a storm?

When you’re a mom-and-pop: Another sticking point is the ordinance would apply to businesses with as few as two employees, simply onerous to the mom-and-pop companies that make up the fabric of unincorporated Bernalillo County’s unique business culture.

The Albuquerque Coalition for a Healthy Economy – comprised of a number of major business advocates including the New Mexico Restaurant Association, the National Federation of Independent Business, the Greater Albuquerque Chamber of Commerce, the N.M. Association of Commerce & Industry, the Associated Builders and Contractors and more – has suggested a better cut-off would be businesses of 50 or more employees; employee advocates say that leaves far too many workers out in the cold. So why can’t commissioners find middle ground?

When someone cries foul: Things get even stickier when an employee feels wronged. If that staffer makes a complaint to the county about a violation – whether real or invented – the county would then be allowed to review “records regarding all employees at the employer’s work site in order to protect the identity of any employee identified in the complaint and to determine whether a pattern of violation has occurred.” That’s an awful lot of records (the ordinance doesn’t say “timesheets,” remember), for an awful lot of people.

Not only that, but the ordinance doesn’t require that parties try to mediate before heading straight to court. It allows that the county “may” try to reach an administrative resolution, not that it “shall.”

When it’s mandated, not incentivized: And why aren’t there any carrots proposed with these sticks? Did commissioners consider encouraging business to implement change with things like tax incentives?

The hard-sell approach shows a complete lack of respect for the small business owners who are the lifeblood of the county’s economy and community. While commissioners show plenty of empathy for employees, they show no signs they empathize or value the employers – who pay much of the county’s bills.

It’s understandable that the county tires of trying to compromise with business owners who eschew any regulation as government meddling. But many of the business owners are willing to compromise. And it’s important to remember how tough it is to run a small business, and how few people it will serve if those proprietors just shut down rather than face onerous regulations.

Full-time employees deserve some variation of sick leave so they can care for their health and their family’s. But any ordinance to address that should take business health into consideration, as well, and include precise language without ambiguity.

This fails on both counts.

This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.

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