Bernalillo County Paid Time Off Ordinance – NMRA Comments

Bernalillo County Commission Amends Paid Time Off Ordinance Again

This ordinance takes effect on July 1, 2020. If you have a restaurant in the county you must comply.

Here is an excerpt on accrual from the final PTO Ordinance (the full ordinance is linked at the bottom of this post) Please see the entire ordinance for record-keeping, enforcement and notice requirements:

Accrual of Paid Time Off

(1) Employees shall accrue a minimum of one (1) hour of earned paid time off for every32 hours worked, provided that employers may choose a higher accrual rate or to provide for accrual of all earned paid time off at the beginning of the year.

(2) The requirement to provide paid time off shall be enacted via three incremental increases per year, over three years, applying to all employers with the following number of employees: employers with two (2) to ten (10) employees, employers with eleven (11) to thirty-four (34) employees, and employers with more than thirty-five(35) employees.

(3) Effective July 1,2020, employees shall not accrue or use more than 28 hours of earned paid time off in a year, unless the employer’s policy provides for a higher limit on use or accrual.

(4) Effective July 1, 2027, employees working for employers with eleven or more employees shall not accrue or use more than 44 hours of earned paid time off in a year, unless the employer’s policy provides for a higher limit on use or accrual.

(5) Effective July 1,2022, employees working for employers with 35 or more employees shall not accrue or use more than 56 hours of earned paid time off in a year, unless the employer’s policy provides for a higher limit on use or accrual.

(6) Earned paid time off shall begin to accrue on the employee’s date of employment, or on the effective date of this ordinance if an employee is already employed.

(7) An employer may, but is not obligated to loan earned paid time off to an employee in advance of accrual or eligibility by such employee.

(8) Employees exempt from overtime requirements under federal and state law will be assumed to work no more than 40 hours in each work week for purposes of earned paid time off accrual, unless the employer selects a higher limit.

(9) Carry-over of earned paid time off. Unused accrued earned paid time off shall be carried over to the following year, but employees shall not carry over more than the total annual amount available to accrue, unless the employer’s policy provides otherwise.

(10) If an employee is transferred but remains employed by the same employer, or if a successor employer replaces the original employer, or if an employee separates from employment but is rehired by the same employer within l2 months, the employer shall reinstate all previously accrued and unused earned paid time off to the employee, up to a maximum of 56 hours unless the employer chooses to provide more, or unless the employer previously chose to pay out the earned paid time off upon transfer or separation.

(11) The Board of County Commissioners will review a report of paid time off every year after the effective date of the ordinance in order to assess its adequacy.

Here is a copy of the final ordinance signed by county commissioners on December 19, 2019:

 

(From our friends at ACI the Association of Commerce and Industry)

The amendments Reduce the Burden on Small Business But Expedites Implementation and Increases Penalties
Tuesday, October 15^th, 2019 Bernalillo County Commission amended the recently passed paid time off ordinance affecting employers in the unincorporated areas of Bernalillo County. Under the new amendments, companies with two to 10 employees must offer workers 28 hours of time off. Those with 11 to 34 employees must offer 44 hours. Companies with 35 or more employees must offer 56 hours at full implementation. The ordinance will be implemented in tiers, starting on January 1, 2020.

NMRA and ACI continues to oppose the implementation of local or county benefit mandates, however we did support this particular amendment to ease the burden of the existing law on small businesses.

Unfortunately, the Commission used the opportunity to also speed up implementation of the measure from June 1, 2020 to January 1, 2020 as well as increase penalties for employers. Neither of these two proposed amendments were noticed publicly prior to the hearing. The Commission took what was already a tight timeline for implementation and gave employers less than one financial quarter to adjust their books and benefit plans in order to comply.

NMRA and ACI will continue to engage in the implementation process to ensure that the county is providing sufficient guidance and educational materials to local businesses, so they understand the law and how to comply.

We will have more information as soon as the final ordinance is published.

The information below is prior to the amendments passed in the post above…

September 4, 2019

In an end run around the Albuquerque voters who clearly voted against a mandated sick leave in 2017 the Bernalillo County Commission voted 3-2 to pass a mandatory paid time off ordinance, after deferring the vote for one month. Commissioners Maggie Hart Stebbins, Debbie O’Malley, and Michael Quezada supported the bill and Commissioners Charlene Pyskoty and Lonnie Talbert voted against the measure. While NMRA actively opposed the legislation throughout, our position being that we don’t agree with unfunded mandates on businesses and the additional argument that the county is not the right place to make employment law.

There were 14 amendments included in the final bill. This open letter to the county commission signed by a coalition of 30 business groups, led by NMRA, points out the sloppy drafting and anti-business stance of this ordinance.

Here are 8 of the amendments included in the final bill:

1. Require administrative enforcement to be exhausted prior to access to civil court;
2. Require the county to notify an employer when an administrative complaint has been filed;
3. Provide a 45-day time period where the employer will be notified of a complaint and be able to comply with the county for records or work to resolve the issue prior to the beginning of the administrative enforcement process;
4. Eliminate the two times liquidated damages in civil court;
5. Provide a three-year phase in of the requirement:
   • 24 hours PTO year one,
   • 40 hours year two,
   • 56 hours year three;
   • ongoing at 56 hours thereafter;
6. Allow for exemption of existing collective bargaining agreements;
7. Move the implementation date to July 1, 2020; and,
8. Allows for more generous PTO earned sick time.

What did not change:

1. This law applies to full-time, part-time, seasonal and temporary employees.
2. A minimum of 1hour of earned paid time off for every 32 hours worked.
3. Unused accrued earned paid time off shall be carried over to the following year, but employees shall not carryover more than the total annual amount available to accrue, unless the employer’s policy provides otherwise.
4. An employer shall provide earned paid time off upon request of an employee or a family member, caretaker, or medical professional acting on the employee’s behalf. (This provision does not allow an employer to refuse PTO for any reason including work load or previously scheduled vacations)
5. Upon an employee’s request, an employer shall inform an employee of the amount of earned paid time off accrued and used by the employee.
6. The employer is required to notify employees of the provisions in this ordinance.
7. Each employer subject to the provisions of Section 3 shall, at the time of hiring employment, provide notice to each employee:

(1) of the entitlement to earned paid time off for employees, the amount of paid time off  provided to employees and the terms under which earned paid time off may be used;

(2) ways in which an employee may submit a request for, or notify, an employer of the use of paid time off, whether orally, in writing or electronically, and to whom;

(3) that retaliation by the employer against the employee for requesting or using paid time off for which the employee is eligible is prohibited; and,

(4) that the employee has a right to file a complaint with the county for any violation of this Ordinance.

(B) Employers may comply with the provisions of this section by displaying a poster in a conspicuous place, accessible to employees, at the employer’s place of business that contains the information required by this section in both English and Spanish.

(C) The County may adopt regulations to establish additional requirements concerning the 36 means by which employers shall provide such notice.

(D)On or before the effective date of this Ordinance, the County shall make available on its  website a summary notice to employees in English and Spanish of each provision of this Ordinance.

According to the ordinance the County will develop guidelines for businesses in the unincorporated district of Bernalillo County. This law will go into effect on July 1, 2020. We will disseminate those guidelines to our members as soon as they are posted.

Albuquerque City councilors wasted no time introducing their own paid time off ordinance. According to the Albuquerque Journal, City Councilors Pat Davis and Isaac Benton said Friday that they have ordered an economic analysis of the paid leave legislation the Bernalillo County Commission approved this week to see how it would work in Albuquerque. Read more here…

Here is a copy of the op-ed written by Carol Wight, CEO of NMRA.