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Testimony to
Albany County Legislature

On proposed Local Law No. "C" for 2018
TO PROVIDE ACCESS TO PAID SICK TIME TO QUALIFIED EMPLOYEES WITHIN ALBANY COUNTY

Presented by

Frank Kerbein
Director, Center for Human Resources

Tuesday, May 29, 2018

The Business Council is the state’s largest statewide employer advocacy organization, representing 2,400 private sector employers – large and small, in all sectors, across the entire state. These businesses employ in excess of one million New Yorkers. We often address issues impacting economic competitiveness, including business costs driven by state and local policy actions. The Business Council is also an Albany County employer.

We are here today to express our concerns regarding the Albany County Legislature’s proposed Local Law “C” to provide access to paid sick time to qualified employees within Albany County.

In summary, we oppose this proposed law and believe this proposal is more of a political statement than a reflection of economic reality. It poses a severe risks to employers with employees in Albany County.

As someone who has more than 30 years of experience administering and implementing ever-changing labor law mandates at the employer level, let me tell you that you have crafted 15-pages of amazingly complex legislation. This proposal will impose an administrative burden on all employers – especially small businesses that are facing the greatest challenges to success. The result will be fewer employers and, therefore, fewer jobs.

Since the implementation of New York’s state-wide paid family leave law, increases in the minimum wage, and a mandatory paid sick leave in New York City – the state’s job growth has slowed and now lags behind the nation as a whole. The multiplying effect of these mandates cause employers to seek other places to start and grow businesses. The same fate awaits Albany County if you were to pile on employers with more mandates -- mandates that, by the way, don’t exist in neighboring counties.

In fact, this trend has already begun. According to the state Department of Labor’s most recent job report, the Albany area job growth is half of the national average. Clearly these government imposed mandates are having a detrimental effect on jobs.

Let me briefly outline our specific concerns with this proposal:

The policy itself: This policy is so broad, and so unlike any other similar policies, that employers statewide – even nationwide – who have a worker in Albany County will need to create and administer an entirely separate benefit program for those employees.

Accrual of paid sick leave: This convoluted accrual process is just setting employers up for unintentional non-compliance. You are asking the smallest of employers (5 or less) to administer a 3 year implementation process. This is a significant burden for an employer without human resources expertise.

Job protected leave: Without saying it specifically, it appears that mandatory sick time is job protected, meaning there are no disciplinary actions available to employers for excessive use of sick time. Employer’s today often provide generous sick leave accruals to their employees. However, unscheduled absences from work are a burden to employers attempting to schedule work shifts. Employers reserve the right to engage in corrective action for that rare employee who might abuse employer provided leave programs. This may lead some employers to reduce more generous sick leave plans to meet the statutory obligations of this proposed law.

Creating nine additional eight hour days of job protected leave…on top of 40 days of job protected NYS paid family leave (50 days next year…ultimately 60 days in 2021) will mean that employees will have the ability to call in – with no notice to their employer - more than once a week without repercussions. I don’t know how a business can plan on meeting the needs of their customers under these conditions.

Additionally, the NYS Department of Labor has recently published proposed employee scheduling regulations that will add costs to employers who make scheduling changes less than 14 days in advance for any reason – including employee use of sick leave. It’s anticipated that these regulations will be implemented and provide significant additional costs to those who use part time employees. These proposed regulations, combined with this proposed law, will ensure that Albany County employers pay more than employers in other counties to staff their business.

Use of earned sick time: Nowhere in law is the use of earned sick time more broadly defined than under this proposed legislation. I imagine this is where the legislature is intent on making its political statement at the expense of Albany County employers.

The definition of “family member” to include “any other individual related by blood to the employee; any other individual whose close association with the employee is the equivalent of a family relationship” is so broad as to be unmanageable and is found nowhere else in state or federal labor law.

Similarly, the use of earned sick time for a “family offense matter, sexual offense, stalking, or human trafficking” requires employers of all sizes to become personally ensnared in the private lives of their staff in determining the legitimate use of earned sick time. Current NYS law prohibits employers from discriminating in the terms and conditions of employment – including the use of benefit time – for a variety of broadly defined reasons including the employee’s status as a victim of domestic violence.

The provisions regarding “changing schedules” will provide no relief for employers. Instead it will increase the likelihood of unintentional noncompliance and will eventually clash with proposed state regulations regarding employee scheduling.

The result is that this proposed law is not really a “sick leave” law in any sense. It’s merely an attempt to provide a mandated paid time off benefit for workers and increase the cost to businesses who wish to operate in Albany County.

Notice and posting: The most concerning aspect of this requirement – in addition to an additional employer posting requirement – is the requirement that the employer provide written notice to each individual employee of their rights and accruals under the law in “English and in the primary language spoken by the employee.” Employers, especially small employers, may not have the resources to provide these notices in multiple languages.

Enforcement: Good luck to the Albany County Human Rights Commission. The administrative complexity of this proposed law will not only confound many employers, it will require costly and time consuming enforcement efforts by the Commission. Such efforts ultimately will require the Commission to seek out civil penalties on employers to justify these efforts. Combined with treble damages and subsequent civil penalties, employers who may choose to do business in Albany County may reconsider in light of this proposed law.

I could raise additional issues, but you get the picture. It is the belief of The Business Council that this law, regardless of how well intentioned, will have serious consequences for Albany County in the increased burdens on Albany county employees, and will likely result in lost jobs and opportunity for those you are intending to help. It will make Albany County less competitive with surrounding counties as they compete for employers and the jobs they bring.

On behalf of The Business Council, thank you for the opportunity to provide comments today.