Rhode (Island) Rage: New Paid Sick and Safe Rules May Frustrate Employers

by Littler
Contact

On May 11, 2018, the Rhode Island Department of Labor and Training finalized regulations concerning the state’s mandatory paid sick and safe time law,1 the Healthy and Safe Families and Workplaces Act (HSFWA). The regulations clarify some issues like business size and pay rate calculations and fill some gaps left by the enacting statutes. Yet the regulations fail to provide sufficient clarification on certain issues and interpret some more common provisions in a novel way that may leave employers scratching their heads.

Covered Employers and Employees, and Leave to Care for Family Members

The law requires employers with 18 or more employees in Rhode Island to provide paid sick and safe time. Although employers with fewer than 18 employees are required to provide unpaid leave, others must determine whether they have the requisite number of employees to be subject to the law’s paid leave requirements. How this calculation must be made is detailed in the rules. Employers must annually calculate the number of employees based on the prior year’s headcount. If in the previous year’s highest two quarters an employer maintained an average of 18 or more employees in Rhode Island, paid leave must be provided. This figure, once determined, will apply for the following 12 months, regardless of whether employee numbers decrease.

The statute defines an employee as a person suffered or permitted to work by an employer. The rules contend employees are employed “in Rhode Island” if the state is their primary place of employment. Working 50% or more of the time in Rhode Island is not required to establish that an employee is working “in Rhode Island”; rather, if an employee spends more time working in Rhode Island than in any other state, that employee must be counted toward the 18-employee threshold.

In addition to traditional family members like children, parents, and spouses, the law allows leave to be used for members of an employee’s household. The term is undefined in the statutes, but the regulations define a member of an employee’s household as a person residing at the same physical address as the employee or a person the employee claims as a dependent for federal tax purposes.

Accrual, Caps, and Carry-Over

Given that eligible employees are not required to work solely in the state, it is not surprising that the rules do not limit accrual or use of leave to work performed in Rhode Island. Employees working outside of Rhode Island part of the time must still accrue Rhode Island paid sick leave for those hours worked outside the state. What may surprise employers, however, is a requirement that employees accrue leave for all hours paid – not just worked – so employees must accrue paid sick and safe leave while they are using paid time off for paid sick and safe leave, vacation, personal days, and when they are paid but not working on a holiday.

Requesting, Verifying, and Documenting Leave

Under the HSFWA, employees must provide advance notice for a foreseeable absence. The rules state that foreseeable absences are those planned at least 24 hours in advance. The rules further provide that notice must be provided within a “reasonable timeframe,” without elaborating on what that would be. 

Under certain circumstances, employers can require employees to provide documentation to show leave was used for a covered purpose. The rules indicate that employers must accept documentation within a “reasonable timeframe”—again, without clarifying what constitutes reasonableness.

The law specifies that verification and documentation requirements cannot unreasonably burden employees or cause them to incur an unreasonable expense. Per the rules, if the total cost to obtain certification—including administrative, governmental, medical, and transportation costs and fees—is more than twice an employee’s hourly pay rate, the requirement is unreasonable. In situations involving unreasonable expense burdens for obtaining certification, the regulations allow employers to require  “notes” from employees in the form of a signed statement that leave was taken for a covered purpose.   

Calculating Leave Pay Rate

HSFWA leave is paid at the same hourly rate, and with the same benefits, an employee normally earns, which cannot be less than the minimum wage. The rules provide calculation scenarios for an employee’s pay rate.  . Importantly, employers cannot change the calculation method used during a year; once selected, a method must be used throughout the year.

  • For salaried employees, total earnings are divided by total hours worked in the previous pay period. For FLSA-exempt executive, administrative, professional, and outside sales employees, 40 hours, or the employee’s normal workweek if fewer than 40 hours, is used.
  • If employees earn commissions, they must be paid their base rate or the state minimum wage, whichever is greater.
  • For piece-rate employees, employers may use a reasonable calculation to determine what the employee would have earned for the work if it had been performed, but no examples of reasonable calculations are provided.
  • If employees receive different rates for hourly work, the hourly rate is either the rate-in-effect or the weighted average for the previous pay period, month, quarter or other established period of time an employer customarily uses to calculate the weighted average for similar purposes. Employers may use only one method consistently in a year.
  • When employees are paid the lower “tipped” minimum wage, they must be paid the full minimum wage—not the lower “tipped” hourly rate—when leave is used.

The rules also identify various compensation items that are excluded when calculating an employee’s leave pay rate—e.g., commissions, bonuses, overtime, holiday pay and other premium rates—but require that shift differentials be included.

Deductions from Final Wages for Negative Leave Balances

The HSFWA allows employers to advance or loan leave before it is accrued. The rules explain that, with an employee’s written permission, these amounts can be deducted from final wages. This position represents a small change from the proposed regulations, which required employers to obtain written permission at the time leave was taken. The department seemingly “rolled back” that impractical requirement to allow written permission to be obtained before the leave is used (e.g., at the outset of employment).

Mandatory Policy Provisions

The HSFWA requires that several provisions be documented in employer policies. Below are the provisions that must be included, in writing, should an employer wish to impose those obligations on employees:

  • call in/notification policies or requirements for unforeseeable leave;
  • documentation requirements to support the need for absences;
  • where an employer provides paid time off that can be used for a variety of purposes, a statement that additional leave will not be provided if an employee exhausts paid time off for vacation or other non-paid sick and safe leave purposes;
  • notice of waiting periods before sick and safe leave can be used; and
  • notice and “agreement” that loaned/borrowed time can be deducted from final pay.

The rules allow “written” or “in writing” requirements to be met electronically—via email, a computer system, or a communication otherwise electronically sent and stored. A hard copy must be provided upon request.

Prohibitions, Penalties, Damages and Enforcement

A rule prohibits adverse action against employees exercising their paid sick and safe leave rights. Adverse action is broadly defined as denying any right guaranteed under the law, and any threat, discharge, suspension, demotion, reduction of hours, reporting or threatening to report the citizenship or immigration status of the employee or a family member to a federal, state or local agency, or any other action that would cause harm to the employee in any way.

The HSFWA provides for a civil penalty up to $100 for a first violation and references state wage law penalties as additional remedies for failure to comply with the law. The rules clarify that subsequent violations can result in a penalty of $100 to $500 per offense, with each day a violation occurs counting as a separate offense.  There is no maximum penalty in the final regulations. 

Employees also have the same protections under the HSFWA as those that are available under the wage payment act. The HSFWA rules provide no additional guidance regarding specific elements of damages, so employers must assume damages for violations of the law could include unpaid wages and benefits, and liquidated damages up to twice that amount, among other potential relief.

Unresolved or Uncertain Issues

Even with the final regulations in place, there is lingering confusion about what various statutory provisions mean. One significant concern that was not specifically addressed by the regulations relates to the exemptions permitted for employers that have a sick or paid time off (PTO) policy in place. Employers that provide at least the minimum amount of paid sick leave via policy—like a PTO policy—are exempt from tracking accrual of sick leave under the law, and from requiring carryover of unused, accrued sick leave to the following calendar year. This provision leaves unanswered questions, however, as the statutory language does not clarify whether an employer must provide this paid time “up front” at the beginning of employment (so-called “frontloading”).

The regulations do little to clarify the statute’s language in this regard, but merely separate into different paragraphs the possible exemptions: (1) a PTO policy that does not frontload time; and (2) a paid sick leave or other time off policy with frontload time. Based on this distinction, employers might assume that frontloading is not required, but the regulatory language does not provide any additional guidance on this point.

The regulations add some further detail on these exemptions. Specifically, the regulations state that the accrual methods used under these “exemption” policies must provide full-time employees, working an entire year, with the minimum number of paid time off hours. If the policy does so, the regulations provide that other employees may accrue “the requisite hours on a pro-rata basis, based upon their start date and the number of hours worked.” This language seems to suggest that an employer with an existing policy may provide fewer than the maximum capped number of paid sick leave hours to employees working fewer than full-time hours, or less than a full year, on a pro rata basis as long as the same accrual method is used for all employees. It remains unclear, however, how this provision affects employers that frontload PTO or paid sick time under existing policies.  

Food Code Interplay

For food service employers, HSFWA regulations address the intersection of paid sick and safe time with the Rhode Island Food Code (Code), in the context of employee notice and documentation requirements.

For employees working with unpackaged food, food equipment, utensils, or food-contact surfaces, employers may ask for additional information concerning the reason for the use of paid sick and safe time. An employer may ask if the reason the employee requires paid sick or safe leave triggers the employer’s obligations under the Code. If an employee answers "no," an employer cannot further ask about the nature of the illness. However, if an employee answers "yes," the employer may ask about the symptoms to determine what steps it must take to remain compliant with its obligations under the Code. If the employee is suffering from certain symptoms described in the Code, the employer must follow the Code’s requirements. The rules also provide that, if documentation requirements in the HSFWA conflict with the Code, those requirements will not apply to food employees.

Next Steps

With only a month and a half remaining until the law takes effect, there is limited time to digest the rules and revise policies and practices—if necessary—and even less time for the Department of Labor and Training to further clarify the law’s requirements via FAQ. For employers with multi-state or nationwide operations, the task is increasingly difficult because paid sick and safe time is a constantly moving target with multiple jurisdictions enacting some form of similar law. Paid sick and safe leave developments nationwide will not be slowing down; final revised rules are expected soon in Seattle, Washington and new laws in Austin, Texas and New Jersey will take effect later this year. Employers should gear up for more paid sick and safe time laws, nationwide and incorporate those obligations into their current paid leave practices.

 

Footnotes

1  For a discussion of what qualifies as sick and safe time leave, see Jillian Folger-Hartwell and Sebastian Chilco, On the Rhode Again: Paid Sick Leave Drought Ends with New Rhode Island Law, Littler Insight (Oct. 2, 2017).

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Littler | Attorney Advertising

Written by:

Littler
Contact
more
less

Littler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.