Miami-Dade Legislative Item
File Number: 160443
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File Number: 160443 File Type: Ordinance Status: In Committee
Version: 0 Reference: Control: Strategic Planning & Government Operations Cmte
File Name: PAID SICK LEAVE FOR COUNTY CONTRACTORS Introduced: 2/25/2016
Requester: NONE Cost: Final Action: 4/12/2016
Agenda Date: 3/8/2016 Agenda Item Number: 4A
Notes: Title: ORDINANCE CREATING SECTION 2-8.11 OF THE CODE OF MIAMI-DADE COUNTY, FLORIDA ESTABLISHING A PAID SICK LEAVE REQUIREMENT FOR CERTAIN COUNTY SERVICE CONTRACTS; AMENDING JURISDICTION OF LIVING WAGE COMMISSION TO INCLUDE ADDITIONAL RESPONSIBILITIES UNDER THIS SECTION; PROVIDING SEVERABILITY, INCLUSION IN THE CODE, AND AN EFFECTIVE DATE
Indexes: PAID LEAVE
Sponsors: Daniella Levine Cava, Prime Sponsor
  Sally A. Heyman, Co-Sponsor
  Barbara J. Jordan, Co-Sponsor
  Jean Monestime, Co-Sponsor
Sunset Provision: No Effective Date: Expiration Date:
Registered Lobbyist: None Listed


Legislative History

Acting Body Date Agenda Item Action Sent To Due Date Returned Pass/Fail

Strategic Planning & Government Operations Cmte 4/12/2016 1G3 Withdrawn P
REPORT: During the setting of today's (4/12) SPGOC Agenda, Assistant County Attorney Juliette Antione advised that Commissioner Levine Cava requested to withdraw the foregoing proposed ordinance and Supplement 1G3

Board of County Commissioners 3/8/2016 Tentatively scheduled for a public hearing Strategic Planning & Government Operations Cmte 4/12/2016

Board of County Commissioners 3/8/2016 4A Adopted on first reading 4/12/2016 P
REPORT: County Attorney Abigail Price Williams read the foregoing proposed ordinance into the record. Hearing no questions or comments the Board proceeded to vote on the ordinance as presented. The foregoing proposed ordinance was adopted on first reading and set for public hearing before the Strategic Planning & Government Operations (SPGO) Committee Meeting scheduled on Tuesday, April 12, 2016, at 9:30 A.M.

County Attorney 2/25/2016 Referred Strategic Planning & Government Operations Cmte 4/12/2016

County Attorney 2/25/2016 Assigned Marlon D. Moffett 2/26/2016

Legislative Text


TITLE
ORDINANCE CREATING SECTION 2-8.11 OF THE CODE OF MIAMI-DADE COUNTY, FLORIDA ESTABLISHING A PAID SICK LEAVE REQUIREMENT FOR CERTAIN COUNTY SERVICE CONTRACTS; AMENDING JURISDICTION OF LIVING WAGE COMMISSION TO INCLUDE ADDITIONAL RESPONSIBILITIES UNDER THIS SECTION; PROVIDING SEVERABILITY, INCLUSION IN THE CODE, AND AN EFFECTIVE DATE

BODY
WHEREAS, Miami-Dade County (County) awards contracts to private firms for many purposes, including procuring services for various County functions (County service contracts); and
WHEREAS, awarding these contracts also achieves additional public purposes of creating jobs and expanding the County�s economic base, resulting in increased economic security for residents of Miami-Dade County; and
WHEREAS, the employees of County service contractors actually provide the services which are the subject of these contracts; and
WHEREAS, consequently, the health and welfare of the employees of County service contractors are of vital importance to the County; and
WHEREAS, paid sick leave allows employees to take leave from work to care for themselves or family members with serious health conditions (including pregnancy) or care for a newborn, newly-adopted child or newly-placed foster child, while earning a portion of their pay (paid sick leave); and
WHEREAS, paid sick leave allows workers to meet their health and family needs without jeopardizing their economic security; and
WHEREAS, unpaid leave under the federal Family and Medical Leave Act (FMLA) provides important job protections, but is not available to all workers and many cannot afford to take it; and
WHEREAS, on September 7, 2015, the White House issued an Executive Order establishing paid sick leave for federal contractors; and
WHEREAS, requiring County service contractors to provide paid sick leave for employees who work on County service contracts will improve the health and performance of their employees; and
WHEREAS, requiring County service contractors to provide paid sick leave will also bring their employee benefits packages in line with other employers which provide paid sick leave, ensuring that County service contractors will be able to compete for dedicated and talented employees; and
WHEREAS, adoption of the measures proposed by this ordinance will increase efficiency and cost savings in the work performed by County service contractors by ensuring that their employees who work on County service contracts can earn at least seven days of paid sick leave annually,
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MIAMI-DADE COUNTY, FLORIDA:
Section 1. Section 2-8.11 of the Code of Miami-Dade County, Florida, is hereby created as follows:
Sec. 2-8.11. Paid Sick Leave Requirement for County Service Contracts.

(1) Definitions.

(A) Applicable department means the County department using the service contract.

(B) County means the government of Miami-Dade County or the Public Health Trust.

(C) Covered employee means anyone employed by any Service Contractor, as further defined in this Chapter either full or part time, as an employee with or without benefits that is involved in providing service pursuant to the Service Contractor's contract with the County.

(D) Covered employer means any and all service contractors and subcontractors of service contractors who enter into a new contract for covered services on or after the effective date of this Ordinance.

(E) Service contractor means any individual, business entity, corporation (whether for profit or not for profit), partnership, limited liability company, joint venture, or similar business that is conducting business in Miami-Dade County or any immediately adjoining county and meets the following criteria:

1. The service contractor is paid in whole or part from one or more of the County's general fund, capital project funds, special revenue funds, or any other funds either directly or indirectly, whether by competitive bid process, informal bids, requests for proposals, some form of solicitation, negotiation, or agreement, or any other decision to enter into a contract;

2. The service contractor is engaged in the business of, or part of, a contract to provide, a subcontractor to provide, or similarly situated to provide, covered services, either directly or indirectly for the benefit of the County; or


3. The service contractor is a General Aeronautical Service Permittee (GASP) or otherwise provides any of the covered services as defined herein at any Miami-Dade County Aviation Department facility including Miami International Airport pursuant to a permit, lease agreement or otherwise.

(F) Covered services means any one of the following:

1. County service contracts. Contracts awarded by the County that involve a total contract value of over $100,000 per year for the following services:

(a) Food preparation and/or distribution;

(b) Security services;

(c) Routine maintenance services such as custodial, cleaning, refuse removal, repair, refinishing, and recycling;

(d) Clerical or other non-supervisory office work, whether temporary or permanent;

(e) Transportation and parking services including airport and seaport services;

(f) Printing and reproduction services; and;

(g) Landscaping, lawn, and/or agricultural services.

2. Service Contractors at Aviation Department facilities. Any of the following services that are provided by a Service Contractor at a Miami-Dade County Aviation Department facility is a covered service without reference to any contract value:

(a) Ramp service: guiding aircraft in and out of Airport; aircraft loading and unloading positions, designated by the Aviation Department; placing in position and operating passenger, baggage and cargo loading and unloading devices, as required for the safe and efficient loading and unloading of passengers, baggage and cargo to and from aircraft; performing such loading and unloading; providing aircraft utility services, such as air start and cabin air; fueling; catering; towing aircraft; cleaning of aircraft; delivering cargo, baggage and mail to and from aircraft to and from locations at any Miami-Dade County Aviation Department facility; and providing such other ramp services approved in writing by the Aviation Department;

(b) Porter assistance services: handling and transportation through the use of porters, or other means, of baggage and other articles of the passengers of contracting air carriers or aircraft operators, upon request of the passenger, in public access areas of the Airport Terminal Complex;

(c) Passenger services: preparing such clearance documents for the baggage and cargo of aircraft passengers, as may be required by all governmental agencies; furnishing linguists for the assistance of foreign-speaking passengers; passenger information assistance; arranging in-flight meals for departing aircraft with persons or companies authorized by the Department to provide such meals; and providing assistance to handicapped passengers;

(d) Dispatching and communications services: providing ground to aircraft radio communication service; issuing flight clearances; sending and receiving standard arrival, departure and flight plan messages with appropriate distribution of received messages; providing standby radio flight watch for aircraft in flight; and calculation of fuel loads and take-off and landing weights for aircraft;

(e) Meteorological navigation services: providing information based on the analysis and interpretation of weather charts; planning aircraft flights in accordance with the latest accepted techniques; providing appropriate prognostic weather charts; and generally providing information appropriate for enroute aerial navigation;

(f) Ticket counter and operations space service: the operation of ticket counter and airlines' operations space; ticket checking, sales and processing; weighing of baggage; operation of an information, general traffic operations and communications office for air carriers and aircraft operators with whom the Service Contractor has contracted to supply such services;

(g) Janitorial services;

(h) Delayed baggage services;

(i) Security services unless provided by federal government or pursuant to a federal government contract;

(j) Any other type of service that a GASP permittee is authorized to perform at any Miami-Dade County Aviation Department facility will be considered a covered service, regardless of whether the service is performed by a GASP permittee or other Service Contractor; and;

(k) In-warehouse cargo handling.

3. Services performed by county employees. Should any services that are being performed by County employees at the time the Ordinance from which this Section derives was enacted be solicited in the future by the County to be performed by a service contractor, such services shall be covered services subject to this Section regardless of the value of the contract.

(2) Establishing paid sick leave for County service contractors and subcontractors.

(A) County departments and agencies shall, to the extent permitted by law, ensure that new contracts, contract-like instruments, and procurement specifications created after the effective date of this Ordinance for all covered services, as defined in subsection (1) of this Section, include a clause, which the service contractor and any subcontractors shall incorporate into any subcontracts, specifying, as a condition of payment, that all covered employees, in the performance of covered services, shall earn not less than one hour of paid sick leave for every 30 hours worked. The requirements of this Section shall not apply to contracts existing on the effective date of this Ordinance, nor to any renewals of said contracts pursuant to an option to renew contained in a contract existing on the effective date of this Ordinance.

(B) A covered employer may not set a limit on the total accrual of paid sick leave per year, or at any point in time, at less than 56 hours.
(C) Paid sick leave earned under this Section may be used by an employee for an absence resulting from:

1. Physical or mental illness, injury, or medical condition;

2. Obtaining diagnosis, care, or preventive care from a health care provider;

3. Caring for a child, a parent, a spouse, a domestic partner, or any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship who has any of the conditions or needs for diagnosis, care, or preventive care described in paragraphs (2)(C)(1) or (2)(C)(2) of this Section or is otherwise in need of care; or

4. Domestic violence, sexual assault, or stalking, if the time absent from work is for the purposes otherwise described in paragraphs (2)(C)(1) or (2)(C)(2) of this Section, to obtain additional counseling, to seek relocation, to seek assistance from a victim services organization, to take related legal action, including preparation for or participation in any related civil or criminal legal proceeding, or to assist an individual related to the employee as described in paragraph (2)(C)(3) of this Section in engaging in any of these activities.

5. Covered employees must exhaust all paid sick leave under this Section before requesting unpaid domestic leave under Chapter 11A of the Code of Miami-Dade County, Florida.

(D) Paid sick leave accrued under this Section shall carry over from 1 year to the next and shall be reinstated for employees rehired by a covered employer within 12 months after a job separation.

(E) The use of paid sick leave cannot be made contingent on the requesting employee finding a replacement to cover any work time to be missed.

(F) The paid sick leave required by this Section is in addition to a covered employer's obligations under this Code, including but not limited to the Domestic Leave and Reporting Ordinance, codified as Article VIII of Chapter 11A, and the Living Wage Ordinance, codified as Section 2-8.9, and service contractors may not receive credit toward their prevailing wage or fringe benefit obligations under those Sections for any paid sick leave provided in satisfaction of the requirements of this Section.

(G) A covered employer's existing paid leave policy, if made available to all covered employees will satisfy the requirements of this Section if the amount of paid leave is sufficient to meet the requirements of this Section and if it may be used for the same purposes and under the same conditions described herein.

(H) Paid sick leave shall be provided upon the oral or written request of an employee that includes the expected duration of the leave, and is made at least seven calendar days in advance where the need for the leave is foreseeable, and in other cases as soon as is practicable.

(I) Certification.

1. A contractor may only require certification issued by a health care provider for paid sick leave used for the purposes listed in paragraphs (2)(C)(1), (2)(C)(2), or (2)(C)(3) of this Section for employee absences of 3 or more consecutive workdays, to be provided no later than 30 days from the first day of the leave.


2. If 3 or more consecutive days of paid sick leave is used for the purposes listed in paragraph (2)(C)(4) of this Section, documentation may be required to be provided from an appropriate individual or organization with the minimum necessary information establishing a need for the employee to be absent from work. The covered employer shall not disclose any verification information and shall maintain confidentiality about the domestic violence, sexual assault, or stalking, unless the employee consents or when disclosure is required by law.

(J) Nothing in this Section shall require a covered employer to make a financial payment to an employee upon a separation from employment for accrued sick leave that has not been used, but unused leave is subject to reinstatement as prescribed in paragraph (2)(D) of this Section.

(K) A covered employer may not interfere with or in any other manner discriminate against an employee for taking, or attempting to take, paid sick leave as provided for under this Section or in any manner asserting, or assisting any other employee in asserting, any right or claim related to this Section.

(3) Certification required before payment.

(A) Any and all contracts for covered services shall be void, and no funds may be released, unless prior to entering any agreement with the County for a service contract, the covered employer certifies to the applicable department that it will provide paid sick leave to its employees as described in subsection (2) of this Section. A copy of this certificate must be made available to the public upon request. The certificate, at a minimum, must include the following:


1. The name, address, and phone number of the employer, a local contact person, and the specific project for which the service contract is sought;

2. The amount of the contract and the applicable department the contract will serve;

3. A brief description of the project or service provided;

4. A commitment to provide all employees paid sick leave as described in subsection (2) of this Section.

(B) Posting. A copy of this Section shall be kept posted by the employer at the site of the work in a prominent place where it can easily be seen by the employees and shall be supplied to the employee within a reasonable time after a request to do so. In addition, service contractors shall forward a copy of the requirements of this Section to any person submitting a bid or issued a permit or lease agreement for a subcontract on any service contract covered by this Section. Covered employers are also required to print the following statements on the front of the individual's first paycheck and every six months thereafter: "You are required by Miami-Dade County law to be provided at least 1 hour of paid sick leave for every 30 hours worked. If you are not being provided this leave, contact your supervisor or a lawyer." All notices shall be printed in English, Spanish, and Creole.

(C) Observance of other laws and collective bargaining. Nothing in this Section shall be read to require or authorize noncompliance with or to supersede any applicable Federal or State law, any applicable law or municipal ordinance, or a collective bargaining agreement requiring greater paid sick leave or leave rights than those established under this Section.


(4) Implementation.

(A) Procurement specifications and contracts. The paid sick leave requirement described in subsection (2) of this Section shall be included in the procurement specifications and contract language for all County service contracts for covered services. The procurement specifications and contract language for applicable contracts shall include a requirement that Service Contractors agree to produce all documents and records relating to compliance with this Section upon request from the applicable department or as otherwise provided by the County Mayor by Administrative Order.

(B) Information distributed. All requests for bids or requests for proposals for service contracts, whether advertised or informally solicited, and permits, leases and any other agreement issued by the Miami-Dade Aviation Department for covered services shall include appropriate information about the requirements of this Section.

(C) Maintenance of leave records. Each covered employer shall make, keep, and preserve payroll, leave, and attendance records for all covered employees and basic records relating thereto as necessary and appropriate for the enforcement of the provisions of this Section and shall preserve them for a period of three years from the expiration, suspension or termination date of the contract in which the requirements of this Section were applicable. The records shall contain at a minimum:

1. The name and address of each covered employee;

2. The job title and classification;

3. The number of hours worked each day;

4. The gross wages earned and deductions made;

5. Annual wages paid;

6. A copy of the social security returns and evidence of payment thereof;

7. A record of fringe benefit payments including contributions to approved plans; and

8. The number of paid and unpaid sick leave hours accrued and used each pay period;

9. The stated reason(s) for the covered employee using any paid or unpaid sick leave hours;

10. Any certifications, statements, or other documentation provided by a health care or other provider as described in paragraph (2)(I) of this Section;

11. Any other data or information the County should require from time to time.

(D) Reporting of leave. No less frequently than every six months or otherwise at the County's request, the covered employer shall submit to the County (or if by request within the requested time frame) a complete certified payroll showing the employer's payroll, leave and attendance records for each covered employee working on the contract(s) for covered services for the applicable payroll period. Upon request by the County, the covered employer shall produce for inspection and copying its payroll, leave, and attendance records for any or all of its covered employees for the prior three-year period. It shall be the responsibility of the applicable department to examine all payrolls for compliance within 60 days of receipt.

(E) Reporting employment activity. Upon request by the County but in any event no less frequently than every six months, the covered employer must submit to the County an Employment Activity Report Form containing the following information:

1. Race and gender of employees hired and terminated; and

2. Zip code of employees hired and terminated; and

3. Wage rate of employees hired and terminated.

(5) Living Wage Commission. The Living Wage Commission, as established and described in Section 2-8.9 of this Chapter, shall, in addition to its responsibilities under that section, have the additional purpose and responsibility to review the effectiveness of this Section, to review certifications submitted by covered employers to the County under this Section, to review complaints filed by employees pursuant to this Section, and to make recommendations to the applicable department, County Mayor and the County Commission regarding compliance and enforcement of this Section.

(6) Compliance and Enforcement.

(A) Service contractor to cooperate. The service contractor shall permit County employees, agents, or representatives to observe work being performed at, in, or on the project or matter for which the service contractor has a contract. The County representatives may examine the books and records of the service contractor relating to employment, payroll, leave, and attendance to determine if the service contractor is in compliance with the provisions of this Section.

(B) Complaint procedures and sanctions. An employee who believes that this Section applies or applied to him or her and the service contractor is or was not complying with the requirements of this Section has a right to complain by filing a written complaint. The County Mayor shall establish by Administrative Order the procedures and

requirements for filing a complaint and for the processing and resolution of complaints under this Section including the sanctions to be imposed for violations of this Section. The County Mayor shall also by Administrative Order establish a procedure applicable to complaints by County employees regarding noncompliance with this Section.

(C) Private right of action against service contractors. Any covered employee of a service contractor, or any person who was formerly a covered employee of a service contractor, may instead of the County administrative procedure set forth in this Section but not in addition to such procedure, bring an action by filing suit against the covered employer in any court of competent jurisdiction to enforce the provisions of this Section and may be awarded compensatory damages including back pay and/or future paid sick leave, benefits, attorney's fees, and costs. The applicable statute of limitations for such a claim shall be two years as provided in Florida Statutes Section 95.11(4)(c) in an action for payment of wages. The court may also impose sanctions on the employer, including those persons or entities aiding or abetting the employer, to include wage restitution to the affected employee and damages payable to the covered employee in the sum of up to $500 for each week each employer is found to have violated this Chapter.

(D) Sanctions against service contractors. For violations of this Section as determined pursuant to the procedures set forth by Administrative Order, the County may sanction a service contractor for violations of this Section by requiring the service contractor to pay wage restitution to the affected employee. The County may also sanction the service contractor for violations in at least one of the following additional ways:

1. Penalties payable to the County in an amount equal to 10 percent of the amount of the nonpayment of paid sick leave and/or benefits for the first instance of nonpayment; 20 percent for the second instance; and for the third and successive instances 30 percent of the amount of nonpayment. A fourth violation shall constitute a default of the contract where the nonpayment occurred and may be cause for suspension or termination in accordance with the contract's terms and debarment in accordance with the debarment procedures of the County. Monies received from payment of penalties imposed hereunder shall be deposited in a separate account and shall be utilized to defray costs of administering the provisions in this Section.

2. The sum of up to $500 for each week for each covered employee found to have not been paid or granted leave in accordance with this Section;

3. Suspend payment or terminate payment under the contract or terminate the contract with the service contractor;

4. If a service contractor fails to cure a Notice of Violation or pay any sanctions that are assessed by the County, such service contractor and all officers, principals, directors, shareholders owning or controlling 10 percent or more of the stock, partners, qualifiers, divisions or other organizational elements of the non-complying service contractor may be declared by the County to be ineligible for bidding on or otherwise participating in Paid Sick Leave contracts and permits until all required payments have been paid in full and regardless of whether such payment has been made may also be declared ineligible for bidding or otherwise participating in Paid Sick Leave contracts for a period of up to three years. In addition all covered employers shall be ineligible for paid Sick Leave contracts and permits under this Section where any officers, principals, directors, shareholders owning or controlling 10 percent or more of the stock, partners, qualifiers, divisions or other organizational elements of the covered employer were officers, principals, directors, shareholders owning or controlling 10 percent or more of the stock, partners, qualifiers, divisions or other organizational elements of a covered employer who has been declared ineligible under this Section;

5. In addition to any other sanctions provided for herein, for violations other than nonpayment of paid sick leave and/or benefits, damages payable to the County in the amount of $500 per week for each week in which the violation remains outstanding.

6. A service contractor who fails to timely and adequately respond in the manner and within the timeframe set forth in a written request from the County to a notice of noncompliance, or fails to attend a Compliance Meeting, or who does not timely request an administrative hearing from an adverse compliance determination made by the County after a Compliance Meeting shall be deemed not to have complied with the requirements of this Section as stated in the notice or determination of noncompliance and, in the case of nonpayment of the paid sick leave required, an amount sufficient to pay any nonpayment shall be withheld from contract proceeds to include any deposits, and/or bonds and remitted to the employee and the Service Contractor may be fined the applicable penalty for such underpayment as defined herein.


7. All such sanctions recommended or imposed shall be a matter of public record.

(E) Interest on unpaid sanctions. All sanctions imposed pursuant to the authority of this Chapter shall bear interest at the same rate as the State of Florida statutory rate for judgments provided by Florida Statutes � 55.03.

(F) Retaliation and discrimination barred. A covered employer shall not discharge, reduce the compensation or otherwise discriminate against any employee for making a complaint to the Living Wage Commission, the applicable department, the County, or otherwise asserting his or her rights under this Section, participating in any of its proceedings or using any civil remedies to enforce his or her rights under this Section. Allegations of retaliation or discrimination, if found by the County Mayor pursuant to procedures set forth by Administrative Order or by a court of competent jurisdiction under paragraph (6)(C), shall result in an order of restitution and reinstatement of a discharged employee with back pay to the date of the violation or such other relief as deemed appropriate. In addition, the County Mayor or the Court may impose an additional sanction of up to $500 for each week since the covered employee was discharged as a result of prohibited retaliation under this Section.

(G) Remedies herein non-exclusive. No remedy set forth in this Section is intended to be exclusive or a prerequisite for asserting a claim for relief to enforce the right under this Section in a court of law.



Section 2. If any section, subsection, sentence, clause or provision of this ordinance is held invalid, the remainder of this ordinance shall not be affected by such invalidity.
Section 3. It is the intention of the Board of County Commissioners, and it is hereby ordained that the provisions of this ordinance, including any sunset provision, shall become and be made a part of the Code of Miami-Dade County, Florida. The sections of this ordinance may be renumbered or relettered to accomplish such intention, and the word "ordinance" may be changed to "section," "article," or other appropriate word.
Section 4. This ordinance shall become effective 10 days after the date of enactment unless vetoed by the Mayor, and if vetoed, shall become effective only upon an override by this Board.



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