Published June 2019
The Twin Cities fought hard for Earned Sick and Safe Time (ESST) almost two years ago — a win for employees. I remember before it was enacted that administrators at the Minnesota Theater Alliance PAHRTS workshops felt intimidated because of the complexities of integrating it into a freelance workforce. When I asked technicians if they’d had the opportunity to use it, the consensus was that they didn’t know how or didn’t think it applied to them. I reached out to the Minnesota Theater Alliance to plan an event so we could get to the bottom of our rights and responsibilities in this matter.
ESST allows employees paid time off of work to care for themselves and their families. Having the right to take time off without the threat of financial burden or job insecurity aids the whole community. It helps to address health concerns faster, prevent the spread of infectious diseases, promote better family relationships, and allow people the space to feel safe and to quickly return to productive lives.
The Minnesota Theater Alliance and Technicians for Change co-hosted a presentation and Q&A on April 22nd, 2019. We couldn’t have found a better expert than Brian Walsh, the head of Labor Standards Enforcement at the Minneapolis Department of Labor. He brought along with him Luke Weisberg, who was one of the consultants hired to write the bill for Minneapolis. What their committee created was later used as the model for St. Paul’s ordinance. Although only half a dozen people attended, we had a large variety including administrators, designers, technicians, and security. Because of that, we asked many questions and covered a lot of ground. At one point, Brian said, “Wow, your industry has all the special circumstances!”
I want to highlight two major concerns we, as entertainment professionals, had during the presentation: location restrictions and seasonal employees.
Location, Location, Location
The rules about what hours qualify for ESST benefits are dependent on the city in question. The location of an organization is based off of its address for mailing and tax filing purposes, even if this is a homestead or otherwise different from the location where the work is being performed. In St. Paul, in order to qualify for ESST hours, the organization must have a brick-and-mortar address within St. Paul city boundaries and employees must work at least 80 hours per year in St. Paul.
The Minneapolis ordinance applies to any employee who works at least 80 hours within the city but the home office location does not have to be inside Minneapolis. This was confirmed only a month ago, when an appeal was struck down by the Minnesota Court of Appeals. (Employers based outside of Minneapolis will be subject to enforcement following a public comment period, which ends June 7, 2019.) For instance, assume you work as an employee for Legacy Production Group. Their shop and offices are located in Brooklyn Center but you may be setting up a show for them at the Minneapolis Convention Center. All hours worked on location would count toward your Minneapolis ESST hours (but shop-hours would not).
There was statewide bills for ESST (HF 11 / SF 1597) which did not pass the legislature this session but Mr. Walsh has high hopes of it’s potential passage at some future juncture. A statewide passage of this bill would make Minnesota the thirteenth state with sick leave coverage for all employees and would ease the currently complicated effects of the aforementioned location confusion. If you are located in Minnesota, please keep an eye out for these bills in the future and urge your legislators to support them. Additionally, be diligent on standing up against any bill that tries to eliminate preemption. In brief, preemption allows states to supersede laws passed by cities including earned sick and safe time and minimum wage.
Seasonal Employees and the 90-Days Rule
The employer begins tracking your ESST beginning on your first hour worked. You accrue one hour of potential time off for every thirty hours worked. However, the employer does not have to allow employees to use that accrued time until 90 calendar days have passed. This introductory buffer may prevent you from receiving useful benefits if, say, you begin work at a summer stock on June 1st and your final day is Aug 20th.
Other helpful information, in brief:
- This applies only to employees (not contractors).
- The ordinance went into effect July 1st, 2017 so employees should have access to SST hours since that date.
- In Minneapolis, employers with 5 or fewer employees are only required to offer unpaid SST. St. Paul does not have this limitation.
- “One hour for every thirty worked” applies to all hours worked including overtime (but not at double or time-and-a-half.) If you only work one hour of a four-hour-minimum, only one hour qualifies. For salary employees, “hours worked” can be determined based on a reasonable guess of either hiring information or typical history.
- “Start of year” is up to the employer: fiscal, calendar, or date of hire are all acceptable start dates so long as the employer is consistent across employees.
- Some payroll systems will automatically track ESST hours on pay stubs but this is not required. However, the employer must provide information on accrued hours when prompted by the employee.
- Employees must provide notice of absence as soon as practicable, especially for foreseeable appointments. Generally speaking, no-call/no-shows are not covered.
- The employer can inquire about the need but employees do not have to be specific about why they are using ESST hours. If anything related to sick or safety is mentioned, assume it is covered.
- The easiest way for an employer to comply with these ordinances is to give all potentially qualifying employees 48 hours of SST at the start of every year. A maximum of 80 hours must be carried over from one year to the next.
- Some employers (located inside city-lines) are exempt from ESST because they are government employees and the city doesn’t have jurisdictional authority over county/state/federal employees.
If your employer is not providing you with the rights you deserve, you should go to your employer’s HR (or HR-equivalent) and discuss the ordinance with them. They are likely to be amiable to finding a (legal) solution. If you need to stay anonymous or you find your employer is actively resistant, St. Paul and Minneapolis have forms that you can fill out in order to report the violation to the city.
Knowing what the ordinances do to protect our health and well-being is only part of the process. We also need to consider our own outlooks and culture regarding health in our industry because our rights only exist if we use them. I’ve been guilty of going to work while sick, despite the negative effects on my health and potentially exposing others to illness. Many of us do. There exists a culture, repeated and reinforced, that makes it taboo to use sick time; the phrase ‘the show must go on’ exists for a reason. However, our passion for our profession should not be used as an excuse for either ourselves or our employers in choosing our work over our well-being and the well-being of the people who are priorities in our lives.
There are reasons beyond our dedication which contribute to the sick taboo; a big one is financial. We take work and budget our lives around our earned income so losing out on that or gaining a reputation for absenteeism in a highly competitive industry may be ruinous to our livelihoods. That, of course, is what Earned Sick and Safe Time is intended to mitigate — to take the sting out of that decision, to hear from your employer that it is okay, and to choose what is best rather than what is required. People who are ill or distracted by urgent needs of their families are more likely to perform worse, communicate poorly, be involved in accidents or fights, and typically prolong the effects of stress and anxiety that come with not addressing an issue. For your employer, it is financially smart, as well as promoting a supportive and healthy workplace culture.
The Minneapolis and Saint Paul Sick and Safe Time ordinances are strong examples of the progress that we can make locally and in our own lives. Even if you haven’t had need to use them yet, speak up for your rights and the rights of your coworkers by supporting each other for time off and making sure your employer is providing everyone with the same access. By remaining active and involved on behalf of ourselves and our rights, we can continue to make progress, improve our lives, and the lives of our community.
- Minneapolis Sick and Safe Time
- St. Paul Sick and Safe Time
- Lawyer summary of the St Paul and Minneapolis Ordinances
- Star Tribune: Minneapolis Cracking Down on Employers Who Violate Safe and Sick Time Ordinance (5/12/2019)