As of April 1, 2017, failure to update employee handbooks and sick leave policies will carry drastic consequences for all Seattle employers with more than four full-time equivalent employees. Large employers have been subject to private lawsuits for violations of Seattle’s Paid Safe and Sick Time Ordinance (PSST) for nearly a year, and as of April 1, 2017, employers with fewer than 50 employees are subject to private employee lawsuits for violations of the PSST, including potential recovery of lost wages, civil penalties, and the employee’s attorney fees. Given that attorney fees in litigation frequently run north of $200,000—a number that can drive many small businesses into bankruptcy—it is imperative that all employers ensure their sick and safe leave policies and employee handbooks are legally compliant.
PSST can be used for an employee’s absence from work due to illness, medical appointments, or safety issues, including domestic violence, sexual assault, or stalking. All covered employees are eligible for the benefits, including full-time, part-time, and temporary workers. Complying with the 49 pages of legal requirements that set forth the PSST and accompanying enforcement procedures is no easy task.
Given that the City body responsible for investigations is nearly doubling in size during 2017, employers need to be on guard against the increased risk of lawsuits and investigations. Employers frequently run afoul of the ordinance through, among other actions, improper requests for information to verify the reasons behind the absence, improper counting for employees who periodically work in Seattle, failing to post Seattle labor standard posters, failing to notify employees of their rights under the PSST in writing, and retaliation.
Retaliation is a particularly onerous claim to overcome as the legal standard is extremely employee friendly. Where an employer takes any adverse action against an employee within 90 days of that employee exercising a right under the PSST, the employer is presumed to have retaliated unless it shows by clear and convincing evidence that it took the adverse action for a legitimate, lawful reason. A frequent trouble spot for employers is policies that penalize employees for taking sick leave the day before a weekend or holiday. Such policies generally constitute unlawful retaliation and subject employers to the PSST’s draconian penalties. Overall, given the presumption of retaliation, employers should always consult with legal counsel before taking any adverse action against an employee who has taken safe or sick leave within the 90-day lookback period.
A final wrinkle of which all employers statewide need to be aware, is that beginning January 1, 2018, all employers in Washington are required to provide employees paid sick leave. It is important to note that although the sick leave requirements State and Seattle law are similar, there are key differences. For more information on the new State law, please refer to our recent blog post on Initiative 1433.
Employers frequently (and understandably) struggle staying abreast of the myriad regulations in Seattle. Fortunately, MPBA’s experienced team of employment attorneys is here to help. For assistance with updates to employee handbooks, drafting of PSST policies, or if you have general questions about employment law, please contact Jay Corker Free or any of the employment law attorneys at MPBA.