City of Saint Paul Rules for Earned Sick and Safe Time Ordinance

Contents

Purpose of the Earned Sick and Safe Time (ESST) Ordinance and Rules………………………………………….. 1

Definitions……………………………………………………………………………………………………………………….. 2

What Employees are covered by the ESST Ordinance?……………………………………………………………….. 4

How employees accrue and bank ESST……………………………………………………………………………………. 5

Use of Earned Sick and Safe Time………………………………………………………………………………………….. 7

Paying Employees When They Use ESST………………………………………………………………………………….. 8

When an Existing PTO Policy Complies with the Ordinance………………………………………………………… 10

Notice from Employee to Employer about Using ESST………………………………………………………………. 11

Employer Notice and Posting Requirements…………………………………………………………………………… 13

Records an Employer Must Keep………………………………………………………………………………………….. 14

Integrated Enterprises……………………………………………………………………………………………………….. 14

Staffing Agencies and Temporary Employees………………………………………………………………………….. 15

Sale of Business: Effects on ESST………………………………………………………………………………………….. 15

Enforcement of ESST Ordinance…………………………………………………………………………………………… 15

Appeal Process for Both Parties…………………………………………………………………………………………… 17

Remedies for Violation of ESST Ordinance……………………………………………………………………………… 17

Retaliation Against Employees is Prohibited…………………………………………………………………………… 18

Civil Enforcement and Private Right of Action…………………………………………………………………………. 18

New Employers Established After Ordinance Effective Date………………………………………………………. 18

Other Leave Such As FMLA…………………………………………………………………………………………………. 19

 

 

 

 

 

 

Purpose of the Earned Sick and Safe Time (ESST) Ordinance and Rules

(Saint Paul City Ordinance §233.01)

 

The purposes of the Earned Sick and Safe Time (ESST) Ordinance are:

 

  • To ensure that all workers in the City of Saint Paul can address their own health needs and the health needs of their family members by requiring employers to provide a minimum level of earned sick leave, including leave for care for family members;
  • To diminish public and private health‐care costs and promote preventative health services in the City of Saint Paul by enabling workers to seek routine medical care for themselves and their family members;
  • To protect the public’s health in Saint Paul by reducing the risk and spread of contagion;
  • To assist victims of domestic abuse and their family members by providing them with job‐ protected paid leave away from work to allow them to receive treatment and take the necessary steps to ensure their protection;
  • To promote the economic security and stability of workers and their families, as well as businesses serving the City of Saint Paul and its residents;
  • To protect residents and all workers in the City of Saint Paul from losing their jobs or facing discipline as a result of illness and use of sick leave to care for themselves or their family members; and
  • To safeguard the public welfare, health, safety, and prosperity of the people in the City of Saint Paul.

 

These rules govern the practices of the Department of Human Rights and Equal Employment Opportunity (“HREEO”) in administering the provisions of the Earned Sick and Safe Time Law (Chapter 233 of the Saint Paul City Code).

 

Definitions

(Saint Paul City Ordinance §233.02)

 

“City” means the City of Saint Paul, Minnesota.

 

“Contracting employer” is an employer that contracts with a staffing agency to receive workers.

 

“Department” means the Saint Paul Department of Human Rights and Equal Employment Opportunity (“HREEO”).

 

“Director” means the Director of the Department of Human Rights & Equal Economic Opportunity

 

“Employee” means any full‐time, part‐time or temporary worker, and any on‐call worker that is paid by the employer while on‐call. It does not include independent contractors.

 

“Employer” means any person, firm, or corporation that hires one or more employees and has a physical location within Saint Paul.

 

“ESST” means earned sick and safe time.

 

“ESST poster” means the standard workplace poster created by HREEO.

 

“Frontloading” is when an employer provides all of an employee’s annual ESST at the beginning of the year, rather than accruing over time as hours are worked. In this case, the ESST becomes immediately accessible to the employee.

 

“HREEO Commission” means the Saint Paul Human Rights and Equal Economic Opportunity Commission.

 

“Integrated Enterprises” means separate entities that form a single enterprise. Integrated enterprises are a single employer under the Ordinance. Examples of an integrated enterprise include, but are not limited to, a single entrepreneur with multiple businesses, a corporation with subsidiaries in the City, a corporation with franchisees located in the City, etc.

 

“Physical Location” means any kind of permanent building or structure where an employer does business and uses employees. It includes a residential location.

 

“Piecework compensation” means paying employees based on how much they produce, rather than an hourly rate. Piecework compensation is common to agricultural work, call centers, translation, data entry, and manufacturing, for example.

 

“Ordinance” means Title XXII Chapter 233 of the Saint Paul City Ordinances, ”Public Health, Safety and Welfare.

 

“Reporting year” means any consecutive 12‐month period of time determined by an employer, and includes weekends and holidays.

 

“Staffing Agency” is any business that provides workers to a contracting employer in exchange for compensation or some other benefit, either temporarily or with the possibility of permanent employment, and during which time workers do not provide any labor directly to the staffing agency. The workers may be paid either by the staffing agency or the contracting employer.

 

What Employees are covered by the ESST Ordinance?

(City of Saint Paul Ordinance § 233.02)

 

General Rules  about Covered Employees

  1. Employees who work in Saint Paul are covered by the Ordinance as long as their employer has a physical location within the City and they perform work at that location or another location within the
  2. Time spent travelling to work before the employee’s shift has started and travelling home after the employee’s shift has ended are not covered by this
  3. Temporary workers are covered by the Ordinance if they work in the City for at least 80 hours in a year and their employer is located in Saint

 

Employees Travelling Through Saint Paul, or  Working  from  Home

  1. Employees working from home (or otherwise telecommuting) are covered by the Ordinance if their employer has a physical location in Saint Paul, and the employee is working in Saint
  2. Employees working outside of Saint Paul are not covered by the Ordinance for hours worked outside the City. For example, if Bill works for a consulting business in Saint Paul and travels to Rochester, he will not accrue ESST for the time he works in Rochester. He only accrues ESST while he works in Saint
  3. Employees who do not regularly work in the City are covered by the Ordinance if they work at least 80 hours in Saint Paul in one year. Once an employee performs work in Saint Paul for at least 80 hours in a year, that employee is covered by the Ordinance for the remainder of that year for work done in Saint Paul. This applies as long as their employer maintains a physical location within the
  4. Employees who travel and make a stop for work (for example, to make pickups, deliveries, sales calls, etc.) are covered by the ordinance for all hours that they perform work in the City. This includes travel within the City to and from the work sites after having attained at least 80 hours in a year. This applies as long as their employer maintains a physical location within the
  5. Employees who travel through the City and only make incidental stops, such as for gasoline, or changing a flat tire, are not making a stop as a purpose of their

 

Independent Contractors exempt  from  the  ESST ordinance

  1. Independent Contractors are not subject to the ESST
  2. Where there is some question as to whether a worker is an employee or an independent contractor, the Department will investigate using the following six factors:
    1. Whether the worker files self‐employment tax returns;
    2. Whether the worker maintains a separate business and uses his or her own tools;
    3. Whether the worker and the employer have a contract for performance of the services;
    4. Whether the worker may realize a profit or suffer a loss under the contract to perform services;
    5. Whether the worker incurs the primary expenses relating to the work performed;
    6. Whether the worker controls the manner and means in which the work is performed;
  3. The determination will be made by the Department on a case by case basis. When investigating, the Department will examine the entire relationship between the

 

 

How employees accrue and bank ESST

(City of Saint Paul Ordinance § 233.03)

 

General Rules  about Accrual

  1. Employees accrue one hour of ESST for every 30 hours worked. For example, if Nancy works 120 hours, she accrues 4 hours of ESST. (120 hours worked / 30 = 4 hours of )
  2. Employees begin accruing ESST on their start
  3. When calculating how many ESST hours an employee has accrued, employers must count hours actually worked. Employers are not required to count the hours taken off for ESST. For example, if James works 60 hours and uses 30 hours of ESST, James earns 2 hours of ESST (60 / 30 = 2), not 3 hours of ESST (90 / 3 = 3).
  4. Hourly employees accrue ESST when they work overtime hours. In those circumstances, employees continue to earn 1 hour of ESST per 30 hours worked. There is no requirement to provide an “overtime rate” for ESST
  5. Employees can accrue up to 48 hours in one year, unless their employer opts to give them more ESST.
  6. Frontloading is permissible as long as it meets the minimal requirements of the Ordinance. For example, Jessica works for Best Eastern in Saint Paul. Best Eastern would rather not track accrual, so they give Jessica 48 hours up front when she is hired, and 80 hours up front every year thereafter. Best Eastern is compliant with the

 

Carrying Over ESST Balances from Year  to  Year

  1. Unused ESST carries over from year to
  2. The maximum number of hours an employee can carry in the bank is 80, unless their employer opts to allow him/her to carry over
  3. Employers are required to permit employees to maintain and/or use their carried over ESST time while concurrently accruing new ESST for every hour worked. For example, Gaston begins working for a sporting goods store in Saint Paul and earns 30 hours in his first year. In his second year, he takes 5 hours. Gaston could still earn 48 hours and end the year with 73 hours of ESST. (30 hours – 5 hours = 25 hours. 25 hours + 48 hours = 73 hours of )

 

ESST Accrual for Salaried, On‐Call, and  Seasonal  Employees

  1. Salaried employees accrue ESST based on their expected hours worked per week, up to 40 hours. For example, Jeremy is a salaried employee who usually works at least 40 hours per week, but in some instances may work more. After 3 weeks, Jeremy will earn 4 hours of ESST (40 hours per week X 3 weeks = 120 hours / 30 = 4 hours of ESST). However, if the employee actually works less than 40 hours per week, the employer may permit the employee to accrue sick leave based on actual hours
  2. For employees who are scheduled for on‐call shifts and are paid for the scheduled time, regardless of whether work is performed, employers must calculate accrual of ESST based on all hours the employee is
  3. For employees who are scheduled for on‐call shifts and are compensated only if work is performed, employers may calculate accrual of ESST based only on hours actually worked. For example, Sara works for Rick’s Restaurant in Saint Paul near Xcel Energy Center. The Wild play a hockey game on Thursday night, and there is often a rush of customers before and after the game. Rick’s puts Sara on call for the night from 4:00 pm – 10:00 pm. At 6:00, Rick’s calls Sara in, and she works until 10:00. Rick’s pays Sara only for the four hours worked. Sara earns ESST for the four hours she works, not for the six total hours she was on
  4. When an employee is separated from employment and rehired within 90 calendar days by the same employer, the employee is treated as if they were never separated from employment. Previously accrued and unused ESST must be reinstated. The employee’s hours worked before being separated count when determining the employee’s eligibility to use accrued

 

Accrual for  Employees on  the  Ordinance Effective Date

  1. Employees who work in Saint Paul for at least 80 hours begin to accrue ESST on the date this ordinance goes into effect. The ordinance goes into effect at different times based on the size of a
    1. For businesses with 24 or more employees, the ordinance is effective on July 1,
    2. For businesses with 23 or fewer employees, the ordinance is effective on January 1, 2018.

 

Use of Earned Sick and Safe Time

(Saint Paul City Ordinance §233.04)

 

General Rules  about Using ESST

  1. All covered employees who perform at least 80 hours of work in Saint Paul can use ESST during times that they are scheduled to perform work in Saint
  2. Employees can use ESST for overtime hours that they are scheduled to work or that they volunteered to work. ESST used for scheduled overtime is required to be paid only at an employee’s regular rate, not at their overtime
  3. Employers are not required to permit use of ESST when an employee is suspended or otherwise on leave for disciplinary
  4. Employees who work at least 80 hours in 12 months in Saint Paul can begin using ESST 90 days after their start date. “Days” means calendar days, not working days or business days. For example, if Ethan begins working 30 hours per week on March 1, and works for 150 hours between March 1 and May 30, he would be able to use up to 5 hours of ESST starting on May
  5. (May 30 is 90 calendar days after March 1, and 150 hours / 30 = 5 hours of ESST.)

 

Employer Requirements for  Minimum Usage of  ESST

  1. Employers may establish their own increments of time for using ESST so it is consistent with their existing business practice, provided that their practice complies with the Ordinance and these
  2. The smallest unit of time established by the employer may not exceed four hours. However, if the employee has an ESST balance below the minimum time allowed by the employer, the employer must allow the employee to use their
    1. For example, Jerome works for Camera Exchange. Camera Exchange allows employees to use ESST, but requires employees to use at least 4 hours of ESST if they request to use any. Jerome has 7 hours of ESST saved and requests time off to go to the doctor. Camera Exchange must allow Jerome to use his ESST but can require that he use 4 hours.
    2. However, after Jerome uses his 4 hours, he needs a follow‐up doctor visit, so he requests to use his remaining 3 hours of ESST. This is below Camera Exchange’s 4 hours minimum. Camera Exchange must allow Jerome to use the 3 hours of ESST that he has saved.

 

Use of ESST by  On‐Call Employees

  1. For employees who are scheduled for on‐call shifts and are paid for the scheduled time, regardless of whether work is performed, employers must permit use of ESST for all hours the employee is typically
  2. For employees who are scheduled for on‐call shifts and are compensated only if work is performed, employers must permit use of ESST only for hours the employee actually was called in to work and would have received

 

Prevailing  Wage Exemption

(Saint Paul Ordinance Section 233.04(h))

 

  1. An employee will not accrue ESST for the hours they are paid the equivalent of the prevailing wage for a craft or trade within the City of Saint Paul if:
    1. an employer has a construction worker whose craft or trade is listed on a Minnesota Department of Labor and Industry wage decision published within the last three years; and
    2. the employer pays the employee at least the minimal prevailing wage rate for that craft or trade if it is work typically performed by that
  2. An employee will not accrue ESST for the hours they are paid at the apprenticeship rate for a craft or trade within the City of Saint Paul if:
    1. an employer utilizes an apprentice that is in a registered Minnesota Department of Labor and Industry or equivalent apprenticeship program; and
    2. the apprentice is compensated at least the minimal hourly rate required under the agreement.
  3. If at any time the employer does not pay the equivalent of the prevailing wage rate or registered apprentice rate, they must permit the employees to start accruing ESST pursuant to the Ordinance and these
  4. The employer must still abide by the requirements of Saint Paul Ordinance 233.09 regarding employee payroll records.

 

 

 

Paying Employees When They Use ESST

(Saint Paul Ordinance §233.04(d))

 

Payment of  Sick Time

Sick time must be paid on the date the employee would have been paid for work, had the employee not used ESST.

 

Paying ESST to  Hourly Employees Versus Salaried  Employees

  1. Both hourly and salaried employees earn
  2. When using ESST, hourly employees are compensated at their hourly rate. If their hourly rate varies, they are paid ESST according to what their rate would have been during their scheduled time.
  3. If an employee was scheduled to work overtime but uses ESST for the scheduled overtime, their employer is not required to pay the employee at the overtime rate. For example, Shauna is scheduled to work 5 hours of overtime on Saturday. Shauna’s hourly wage is $12/hour. She normally makes time‐and‐a‐half working overtime, or $18/hour. Shauna’s employer only has to pay her $12/hour for the ESST used during her scheduled
  4. To calculate the hourly rate of ESST for salaried employees:
    1. Take the employee’s total annual salary
    2. Divide the annual salary by the number of weeks worked per year. This is the employee’s weekly
    3. Divide the weekly salary by the number of hours of the employee’s normal work
    4. Example: John earns $80,000 salary and is not paid by the hour, but on average works 40 hours per week. John’s annual salary is $80,000. His weekly salary is $1,538.46 ($80,000 / 52 = $1,538.46). If John’s normal work week is 40 hours, John’s hourly salary is $38.46 ($1,538.46 / 40 = $38.46). His hourly ESST rate would be $38.46.

 

Tips, Commissions, and  Other Fluctuating  Wages

  1. Employees are not entitled to compensation for lost tips or commissions. ESST is required only for hours that an employee is scheduled to have
  2. For employees who are paid on a commission or with tips, the hourly rate of pay is the base wage.
  3. For employees whose rate of pay fluctuates depending on what duties they are performing for the employer, the hourly ESST rate is the scheduled hourly rate for the job during which ESST is taken. For example, Richard works two jobs at a restaurant. Sometimes he waits tables and is paid $10.00 per hour. Other times he buses dishes and is paid $9.00 per hour. Richard is scheduled to wait tables but calls in sick and uses his ESST. His ESST is paid out at $10.00 per hour because he was scheduled to wait tables and would have made $10.00 per hour for the work.
  4. For employees who are scheduled to work a shift of uncertain length, (such as a shift that is defined by business needs rather than a specific number of hours), the employer may determine payment for ESST based on hours worked by a replacement employee. The replacement employee either must have worked the same shift or a similar shift. The employer must demonstrate this by way of documentation if there is an

 

Piecework Compensation

For employees who are paid on a piecework basis, the employer calculates the employee’s rate of pay by doing the following:

 

  1. Add together the employee’s total earnings for the most recent workweek in which no sick time was taken. This is the employee’s total weekly
  2. Divide the total weekly earnings by the number of hours worked during the most recent workweek with no sick time used. This is the employee’s hourly ESST
  3. Example: Va Meng works in a call He takes calls and does data entry. Va Meng is paid

$1.00 for every call he takes. He is paid $1.00 for every 30 entries he makes. Last week, Va Meng took 700 calls and entered 3,000 lines of data. He worked 30 hours. Va Meng was paid $700 for his phone calls and $100 for data entry. His total earnings were $800 ($700 + $100 = $800). His hourly rate is $26.67 ($800 / 30 hours = $26.67 per hour). Va Meng requests ESST the following week. His employer must reimburse him at a rate of $26.67 per hour.

 

 

When an Existing PTO Policy Complies with the Ordinance

(Saint Paul City Ordinance §233.03(d))

 

  1. If an employer has a PTO policy in place that meets the minimum requirements of the Ordinance, the PTO policy is sufficient and the employer does not need to provide additional ESST.
    1. When an employer offers a combined or universal leave policy, such as a paid time off (PTO) policy, the employer may require an employee to comply with the employer’s usual and customary notice and procedural requirements for absences or for requesting leave. However, notice requirements may not interfere with the purposes for which the leave is
    2. For example, David’s employer has a PTO policy that meets the requirements of the ordinance. That policy requires David to provide notice one week in advance of taking leave. Under most circumstances, this is a permissible requirement. However, David needs to take time off unexpectedly to care for his sick child. The Ordinance requires David’s employer to allow him to use ESST for that purpose, so they cannot deny him leave. However, they could deny David’s request for PTO for lack of notice if he requested time off for
  2. An employer may require employees to use other paid leave for the purposes of ESST provided that the employer meets the minimum requirements of the Ordinance (such as accrual, use, carry over, employee notification and record keeping, ).
  3. If an employee uses all paid leave under a general paid time off (PTO) policy for a reason unrelated to ESST, the employer does not need to provide additional leave for ESST under the Ordinance. For example, if Ashley’s employer offers 80 hours of PTO, and Ashley uses all of her hours on a vacation, her employer does not need to offer more paid time off for ESST because her employer has provided the minimum amount of

 

  1. An employer providing a combined or universal leave, such as a paid time off (PTO) policy, that meets the minimum requirements of the Ordinance, is not required to maintain records showing employee reasons for use of the PTO (e.g., vacation, sick time, safe time, FMLA leave, etc.), only that PTO was used and how much was
  2. If the employer provides combined leave, such as paid time off (PTO), in order to meet their ESST requirement, then the employer’s written ESST policy must inform employees of their right to ESST and that it is being met by

 

 

Notice from Employee to Employer about Using ESST

(Saint Paul City Ordinance §233.07)

 

Notice from  Employees, Generally

  1. An employer may require an employee to provide notice of an absence for ESST as long as the requirements are consistent with the employer’s regular practice and do not interfere with the purposes of the
    1. An employee may provide reasonable notice of an absence for ESST without explicitly referencing the Ordinance or using the terms “earned sick and safe ”
    2. An employer may ask whether the absence qualifies for ESST, provided that the employer does not violate the privacy and confidentiality provisions of the Ordinance (see Saint Paul City Ordinance § 09).
  2. When an employee uses ESST for more than three consecutive days, an employer may require reasonable documentation that the paid time is being used for a reason that is consistent with the Ordinance. For purposes of the Ordinance, “consecutive” means any three days the employee is scheduled to work, and not does have to be three consecutive calendar
  3. If the reason for ESST is unforeseeable, the employee must provide notice as soon as practicable. Notice may be provided by the employee’s spokesperson (e.g., spouse, domestic partner, adult family member or other responsible party).
  4. An employee is not required to disclose the specific nature of the illness or specific reason for seeking safe time, beyond informing the employer of their need for
  5. When there is a pattern of abuse of ESST by the employee, the employer may require reasonable documentation to verify that an employee’s use of ESST is consistent with the Ordinance. However, the employer may not interfere with the employee’s ability to use ESST for reasons laid out in the
  6. Reasonable documentation for sick time includes any documentation that indicates the employee sought and received medical treatment. This includes, but is not limited to, a doctor’s note.
  7. An employer may not require an employee to obtain documentation from more than one health care provider for a single use of
  8. If an employer requires an employee to provide a doctor’s note for using ESST, the employee must be allowed at least of 14 days from the date his or her return date obtain such

 

documentation. The employee is responsible for the cost of such documentation not covered by insurance or any other benefit plan.

  1. If an employee works between using ESST absences, the employer may only request additional documentation for the second absence if at least two weeks have passed. For example, Jim pulls a muscle in his back and tells his employer, Tom’s Tubs, that he will be on leave for three days, from Monday – Wednesday, and provides a Doctor’s note. Jim comes back to work on On Thursday night, Jim’s back flares up again, and he calls and tells Tom’s Tubs that he will be out again on Friday due to his back injury resurfacing. Tom’s cannot require additional documentation for the second absence, because less than two weeks has passed.

 

Contents of  the Employee Notice

If an employee works between using ESST absences, the employer cannot always require additional documentation for the second absence. When an employee works between ESST absences, the employer may only request additional documentation for the second absence if at least two weeks have passed. For example, Jim pulls a muscle in his back and tells his employer, Tom’s Tubs, that he will be on leave for three days, from Monday – Wednesday, and provides a Doctor’s note. Jim comes back to work on Thursday. On Thursday night, Jim’s back flares up again, and he calls and tells Tom’s Tubs that he will be out again on Friday due to his back injury resurfacing. Tom’s cannot require additional documentation for the second absence, because less than two weeks has passed.

 

Notice Regarding Safe  Time

Reasonable documentation for paid safe time must communicate that the employee or the employee’s family member is experiencing domestic violence, sexual assault, or stalking and that the leave as taken for a purpose covered by the Ordinance. Reasonable documentation may include a police report, court order, or an employee’s written statement.

 

Employer Notice and Posting Requirements

(Saint Paul City Ordinance §233.07)

 

  1. Every employer must distribute or post written policies on ESST and follow such written policies. An employer’s written policies must meet or exceed all of the requirements of the Ordinance and these rules. Employers can satisfy the notice requirements by:
    1. Regularly distributing the written ESST policies to each employee personally, by regular mail or by email;
    2. Regularly distributing the written ESST to employees through things like company newspapers or newsletters, check stubs, handbooks or manuals, or posting on the company intranet; or
    3. Posting the policies in a noticeable place where notices to employees are typically posted.
  2. The Department has a standard workplace notice poster for employers. The employer may use the standardized workplace poster to hang up in a noticeable place, such as in a breakroom, by a punch clock, or at some common work meeting place. By posting the poster in a noticeable place, an employer satisfies written posting
  3. If the employer does not utilize the ESST poster but rather provides their own written notice, it must contain, at a minimum, the following information:
    1. Employees are entitled to ESST;
    2. When accrual starts;
    3. When an employee may begin using ESST;
    4. The rate at which an employee accrues ESST;
    5. The maximum number of hours an employee may accrue in a calendar year;
    6. How ESST carries over to the next year;
    7. The employer’s notice requirements for using ESST;
    8. If the employer has a requirement for documentation, the requirements for providing written documentation from health care provider if ESST exceeds three days;
    9. Employer’s disciplinary policy for employee’s suspected of abusing ESST;
    10. That the employee can file a complaint with HREEO;
    11. That employer retaliation is prohibited and an employee may file a civil action for retaliation.
  4. If the employer has employees who speak languages other than English, the Department may require an employer to post a Department‐provided ESST poster in any language the Department determines is necessary to inform the employer’s employees of their rights under the ESST
  5. If the employer provides ESST at the beginning of the year, in the form of frontloading, then the employer’s written ESST policy must specify this to the
  6. In all cases, employer notification to employees must be likely to reach all employees, should enable an employee to provide reasonable notice of their desire to use ESST, and must be documented.

 

Records an Employer Must Keep

(Saint Paul City Ordinance §233.09)

 

  1. Employer records must, at a minimum, maintain the following three items:
    1. Employee hours worked in St. Paul;
    2. Accrued ESST time;
    3. Used ESST
  2. If an employee makes any request for information regarding how much ESST the employee has available or how much has been used, the employer must provide an answer within 24
  3. If employee wants to use ESST immediately and the need to use ESST was unforeseen, the employer must inform the employee of their ESST balance as soon as
  4. Upon the request of the employee, the employer must provide this information either in writing or electronic
  5. Employers may track total employee hours worked, rather than hours worked just in Saint Paul, if they already provide some form of paid time off that meets the requirements of the ordinance.
  6. Employers must retain records demonstrating compliance with the Ordinance for a period of at least three
  7. Once the Department notifies the employer that an investigation has commenced the employer may not destroy any records until the employer is notified by the Department that the investigation has concluded and records older than three years can be
  8. If an employee files a complaint against their employer, the employer must make their records available to the Department. If an employer does not supply the required records, it creates a rebuttable presumption that the employer has violated the
  9. For salaried employees who work in Saint Paul on a regular basis, employers may retain records of the employee’s regular workweek hours, rather than tracking actual hours worked in Saint Paul, as long as the hours of a normal work week is used as the actual basis for the employee’s accrued and used

 

 

Integrated Enterprises

 

  1. The Department will determine the existence of an integrated enterprise by assessing the degree of control exercised by one entity over the operation of another entity. The factors in this assessment include, but are not limited to:
    1. Degree of interrelation between the operations;
    2. Degree to which the entities share common management;
    3. Centralized control of labor relations; and/or
    4. Degree of common ownership or financial control over the
  2. If the Department determines an integrated enterprise exists, the integrated employer must provide ESST to every employee working at a physical location within the

 

Staffing Agencies and Temporary Employees

(Saint Paul City Ordinance §233.02)

 

  1. An employee supplied by a staffing agency is an employee of the staffing agency for purposes of the Ordinance, unless there is a contractual agreement stating
  2. Temporary workers supplied by a staffing agency located outside the City and working for a contracting employer within the City are not subject to
  3. Contracting employers that maintain a physical location within the City and employ workers supplied by a staffing agency located outside the City do not have to provide ESST to the employees supplied by the staffing

 

 

Sale of Business: Effects on ESST

(Saint Paul City Ordinance §233.11(b))

 

  1. If an employer sells its business or the business is otherwise acquired by another business, employees retain and may use all accrued sick time if the employee continues to work within the City for the successor
  2. A successor employer must provide employees with its written ESST policies at the time of sale or acquisition, or as soon as practicable, which must include a policy that complies with this section.

 

 

Enforcement of ESST Ordinance

(Saint Paul City Ordinance §233.13)

 

Time limitations

Any person alleging a violation of the Ordinance shall have the right to file a complaint with the Department within 365 days of the alleged violation.

 

Confidentiality  of Information

The Department shall maintain the confidentiality of any complainant unless disclosure of such complainant’s identity is necessary for resolution of the investigation or otherwise required by law. The Department shall, to the extent practicable, notify such complainant that the Department will be disclosing his or her identify prior to such disclosure.

 

Investigation Process

  1. The Department will investigate all complaints and attempt to resolve all complaints through informal mediation between the complainant, the employer and the
  2. The Department begins an investigation by sending to the employer via US Mail a notice of investigation setting forth the allegations and the pertinent facts. The notice of investigation will include a request to the employer to respond to the allegations in a written
  3. The employer must provide a written response, via US Mail, fax or email, to the Department within 30 days of receiving the Department’s notice of investigation. The written response must specifically state the employer’s position regarding the allegations set forth in the notice of investigation. If the employer admits to violating the ordinance, they must answer how they will remedy the violation and make the complainant whole. If the employer denies the allegations they must specifically state how the employer is in compliance with the
  4. The Department may request any relevant additional information during the investigation. It must be provided within 30 days from the day the request is made. The employer may provide any additional information with the original written response or subsequent request for additional information it believes is relevant to the investigation, and the Department will consider
  5. All information received will become a part of the final Prior to making a determination, the Department will make a final request for information. Any information received from either party after the deadline for the Department’s final request will not be considered, and will not be a part of the record.
  6. If the employer fails to provide a written response within 30 days or fails to provide any other requested information, the Department will make its decision without the benefit of the employer’s input. The Department will rely only on the information provided to the Department. The employer may request additional time to submit the written response or a response to a request for further information to the Department. Such a request should include the amount of time requested and the reason that the employer cannot respond within the original time allowed. The Department’s grant or denial of this request is not
  7. Within six months of receiving the complaint, and after considering all information provided by all parties, the Department will issue a Determination of Violation/no Violation. Determinations are made based on a preponderance of the evidence standard. The Determination will consist of:
    1. Findings of fact;
    2. Conclusions of law and a statement as to whether a violation of this Ordinance occurred;
    3. Remedy , such as reinstatement, back pay etc.; and
    4. Notice of right to
  8. The Determination will be sent to the employee who made the complaint and the employer via either US Mail, fax or
  9. After the Department issues the Determination, the complainant or employer may, within 21 days, file a response in the form of a Request For Reconsideration with the Department via US

 

Mail, fax or email. The Department must provide a written response within 10 days. This request will include, at minimum, confirmation of receiving the request for consideration and next steps in resolving the request for reconsideration.

  1. Failure of either the employer or complainant to appeal within 21 days from the date of service of the Determination renders the Determination final without any possibility of appeal by either party.

 

 

Appeal Process for Both Parties

(Saint Paul City Ordinance §233.14); See also Earned Sick and Safe Time Administrative Appeal Procedures

 

  1. The HREEO Commission procedural rules for ESST appeals are available on the Department website. See the general appeals procedure
  2. Either the employee or the employer may appeal the Department’s grant or denial of the Request For Reconsideration by filing a written notice of appeal within 21 days of date of the Department’s response to the Request For
  3. The Notice of Appeal shall be filed with the Department. The Department will refer the appeal to the HREEO
  4. The HREEO Commission will hold a hearing/oral argument within not less than 30 days of notice of appeal from the appealing
  5. At least 10 days prior to the scheduled hearing/oral argument, the parties may file written statements of positions with the
  6. The Department shall mail or email each submission to the parties upon receipt, but no later than 5 days before the oral
  7. The HREEO Commission will consider the entire written
  8. The HREEO Commission will reverse the Department’s Determination only upon a finding that the Department’s finding was clearly
  9. The HREEO Commission will review the record, consider the arguments of both parties and issue a decision within 30
  10. The HREEO Commission’s decision constitutes the City’s final decision with appeal as allowed by state

 

 

Remedies for Violation of ESST Ordinance

(Saint Paul City Ordinance §233.13(d))

 

The Department may impose the following remedies based on the nature of the violation:

 

  1. If an employee is terminated or suspended from work for lawfully exercising their right to ESST, the Department may order Reinstatement. The employer and the employee may, with the approval of the Department, agree to any alternative resolution or remedy, such

 

as financial compensation. Alternatives to reinstatement are not exclusive of other remedies under the Ordinance if additional violations occurred.

  1. Back pay. The Department may order back

 

 

Retaliation Against Employees is Prohibited

(Saint Paul City Ordinance §233.06)

 

  1. Employers may not retaliate against any employee for exercising any rights under the Ordinance. Employers also may not interfere with employee rights under the
  2. Protection from retaliation includes, but is not limited to, an adverse action by the empoyer after the following employee actions:
    1. requesting ESST;
    2. using ESST;
    3. providing information to another employee about ESST;
    4. otherwise assisting another employee trying to use ESST;
    5. making a complaint to the employer or a government agency about ESST;
    6. counting used ESST as an unexcused absence from work
      • For example, Maria calls in sick for 8 hours. Her employer pays her ESST but counts her absence as an unexcused absence. The employee is retaliating against Maria for using ESST. Maria’s employer is in violation of the

 

  1. It is not retaliation for an employer to investigate an employee’s suspected abuse of ESST (such as using it as vacation time rather than as sick or safe time). However, these investigations may not interfere with the employee’s ability to use

 

 

Civil Enforcement and Private Right of Action

(Saint Paul City Ordinance §233.15 and §233.06(c))

 

  1. The Department will refer investigations for civil enforcement to the Saint Paul City Attorney’s Office if more than 90 days have passed since a final determination, including exhaustion of all appeals.
  2. Employees may file a lawsuit in district court if they allege that their employer interfered with their right to use ESST, or retaliated against them for exercising their rights under the

 

 

New Employers Established After Ordinance Effective Date

(Saint Paul City Ordinance §233.21(b))

 

All new businesses that begin operating after July 1, 2017, must provide at least unpaid ESST to their employees for a period of six months, after which they must provide paid ESST and comply with all provisions of the ordinance.

 

Other Leave Such As FMLA

An employee’s use of ESST also may qualify for concurrent leave under federal, state or other local laws (e.g., US Family Medical Leave Act). The ESST ordinance operates independently of any other leave such as FMLA.