Connecticut is the only state in the country to have such a law right now, and thus the legislature, the Department of Labor, and (eventually) the courts will be working from a blank slate when it comes to enforcement and interpretation. Moreover, this legislation is being watched by sister states as a potential model for similar legislation elsewhere. Given the absence of any history with this kind of legislation, it is virtually certain that Connecticut employers and regulators will face a number uncertainties over the next year as everyone works to "get the bugs out" of this new law. This week, I'll be doing a few pieces on some of the more troubling and controversial aspects of this new legislation, particularly with respect to the seasonal amusement and tourism industry in our state.
We start with a really basic question, Who Gets Paid Sick Leave Under The Act?
For such a fundamental question, this is one of the most problematic parts of this new legislation with respect to the amusement and tourism industry. The answer sounds simple on the surface: Under the new law, only "service workers" are entitled to paid sick leave. But who exactly is a "service worker"? This is where it gets really sticky.
The statute defines "service worker" by reference to "the federal Bureau of Labor Statistics Standard Occupational Classification system or any successor system." Realizing that most employers do not keep a copy of the BLS Standard Occupational Classification system in their back pocket, the Department of Labor was kind enough to include a handy reference chart in the official guidance that, for most employers, will undoubtedly make it easier to determine whether an employee is a "service worker" or not. At the top of this chart, the Department of Labor states that a service worker is an employee "engaged in an occupation with one of the following occupation code numbers and titles." The DoL then lists seventy-two different job categories that fall within the definition of "service worker" and are thus entitled to paid sick leave. So ... easy to figure out right?
Wrong - at least if you are in the amusement and tourism industry. For most of the types of businesses the Legislature had in mind when it drafted the bill the Department of Labor's chart is probably adequate. It covers obvious service jobs, i.e. wait staff at a restaurant, hotel desk clerks, retail workers, ushers and ticket takers at theaters, cooks, etc. But what about an amusement ride operator or games attendant at Quassy? How about a ride mechanic or landscaper at Lake Compounce? Are the actors and artisans employed at Mystic Seaport who engage the public on a daily basis considered "service workers?" What about the exhibit attendants at the Connecticut Science Center? Unfortunately, for these people and many others in our industry the answer is tough to discern.
The chart attached to the guidance says that a "service worker" is an employee "engaged in an occupation with one of the following occupation code numbers and titles." This will undoubtedly suggest to many employers that these seventy-two job titles comprise the universe of "service workers." Since jobs like ride and game attendants, maintenance personnel, tour guides and museum attendants are not listed, I expect that we will see some employers conclude that these are not service worker positions under the new law and thus are not entitled to paid sick leave. But watch out, that might not be the case...
The text of the DoL's official guidance itself, as opposed to the illustrative chart, significantly complicates matters. The guidance says, that
"If a job title is not listed specifically, it does not mean that the job is not included in one of the prescribed classifications. The employer must read the broad and detailed occupations and descriptions provided on the Bureau of Labor Statistics website."
So, maybe those ride operators and maintenance people are considered service workers? Maybe an exhibit attendant at a museum is entitled to paid sick leave after all? How do you find out? Well, the DoL suggests that this determination is a simple matter of looking at the Bureau of Labor Statistics website. Go ahead ... try it out at this link ... I'll wait while you do.
Well, whudja find out? It's not nearly as simple as the DoL suggests is it? The Bureau of Labor Statistics website allows an employer to search for any number of job titles and provides an occupational code number and title for most. But then what? How does an employer armed with that knowledge know whether that occupational code number and title is a "service worker." The guidance does not tell an employer, for example, whether all code numbers that begin with a "39" ("Personal Care and Service Occupations") fall within the statutory definition of a "service worker." True, the chart lists many that do, but what about the others? An embalmer is listed as code number 39-4011 - is an embalmer a "service worker?" That's not a job that immediately springs to mind when I think about "service workers," but it is listed as a "Personal Care and Service Occupation" by the Bureau of Labor Statistics. What about the code numbers that begin with "11," defined as "Managment Occupations?" The chart includes a few of these as well, but surely not all management occupations qualify as "service workers." Right?
So the chart is nice, but not anywhere near adequate - particularly in the amusement and tourism industry where, let's be honest, a lot of jobs exist that don't exist anywhere else. While I'm not all that surprised that the Connecticut Department of Labor didn't include ride operators or museum hosts on its chart, I am surprised that the Department didn't provide any guidance at all on how an employer is supposed to figure out the classification for jobs that are not on the list.
For now, if you are employer with questions about your employees' status under the new law, the State's guidance is not going to be of much help. There are three ways to approach this:
- Take your best shot at figuring out the law, running the risk that you will be wrong and eventually found to be out of compliance and subject to fines and civil penalties,
- Adopt the approach that any job that is even arguably a "service worker" job is entitled to paid sick leave, running the risk that you will ultimately pay sick leave to employees that were not entitled to it under the law, or;
- Consult with legal counsel now to get advice on your specific situation and the best options for an effective and compliant paid sick leave policy.
Coming next ... Why Seasonal Employers Need To Be Concerned About 2013 More Than 2012.