Frequently Asked Questions
ESI/Employee Solutions LP, Hagan Law Group LLC, and the State of Texas sued the City of Dallas in the Eastern District of Texas and sought an injunction to halt the implementation of the City of Dallas Paid Sick Leave Ordinance and sought a declaration that the ordinance invalid. On March 31, 2021, the federal district court has now determined that the Paid Sick Leave Ordinance is preempted by the Texas Minimum Wage Act and is in violation of the Texas Constitution. The Court has declared that the Paid Sick Leave Ordinance is, therefore, permanently enjoined and unenforceable against any person, business, or other entity.
1. Q: What is the Dallas Paid Sick Time Ordinance?
A: The Paid Sick Time Ordinance is an ordinance in the City of Dallas that guarantees time off work for all employees—including full-time, part-time, seasonal, and temporary employees, salaried and hourly employees, paid apprentices, and paid interns—working within the geographic boundaries of the City of Dallas. People can determine whether a location is within the geographic boundaries of the City of Dallas by visiting https://gis.dallascityhall.com/cityinfo/.
2. Q: How does an employer determine its employer size for the Ordinance?
A: An employer should count the number of employees who have done at least 80 hours of compensable work for an employer within the geographic boundaries of the City of Dallas within the last 12 months, excluding family members but including owners. If the number of employees employed at any one time has varied over the last 12 months, the employer should use the highest number at any one time. An employer should count part-time employees as one employee rather than a fraction of an employee.
Example: Pavan is the owner of a business who works at his business and has 13 employees who have completed at least 80 hours of compensable work, including 6 full-time employees, 5 part-time employees, and 2 family members. His employer size is 12 employees.
Example: Pat has had 24 employees who have completed compensable work in the last 12 months, but Pat only has had 4 to 7 employees doing compensable work for them at any one time. Their employer size is 7 employees.
Example: Employees Ed and Erica work for Blue Business, which is located in Bedford, doing work across North Texas. In the last twelve months, Ed works 75 hours within the geographic boundaries of the City of Dallas and Erica works 85 hours within the geographic boundaries of the City of Dallas. Ed does not count towards Blue Business employer size, but Erica does. Additionally, Ed does not earn paid sick time hours for the 75 hours he worked within the geographic boundaries of the City of Dallas, but Erica earns paid sick time hours for the 85 hours she worked.
Example: Purple Inc. has 80 employees, but only 5 employees work at least 80 hours within the geographic boundaries of the City of Dallas. Purple Inc.'s employer size is 5 employees.
3. Q: When will the Earned Paid Sick Time Ordinance be enforced?
A: For employers with 6 or more employees, except for violations of the anti-retaliation provision, the City of Dallas will not enforce the Earned Paid Sick Time Ordinance until April 1, 2020. Even if an employee properly files a complaint within 2 years of the alleged violation, the Office will not investigate complaints of alleged violations that occur between August 1, 2019 and March 31, 2020 or enforce the Ordinance during that period. For employers with 5 or fewer employees, no part of the Ordinance, including enforcement, goes into effect until August 1, 2021.
4. Q: Can employers give employees more sick time than the amount required by the Paid Sick Time Ordinance or provide other types of paid leave besides paid sick time?
A: Yes. The Paid Sick Time Ordinance requirements create a minimum floor, not a ceiling. Employers may provide more generous leave, such as a separate vacation leave or paid-time-off leave for which employees can use for uses under the Ordinance and uses outside of the Ordinance. Employers that already provide a more generous leave policy do not have to provide additional days under the Ordinance.
Example: Fabio's Fabrics provides its employees 10 days (8 hours per day) of paid time off per year. This policy is permissible under the Ordinance.
Example: Farrah's Furniture provides employees 4 sick days and 4 paid-time-off days. This policy is permissible under the Ordinance if employees can use all 8 days in accordance with the Ordinance's requirements.
Example: Farheed's Flowers provides 80 hours of paid sick time and 120 hours of vacation each year. This policy is permissible under the Ordinance.
5. Q: For employers who front-load, how many hours must be "front-loaded"?
Note: Front-loading is an alternative method of accrual for employers who want to reduce the calculations and recordkeeping required of accrual. This option allows employers to record accrual only once per year and avoid carryover from year to year. Employees get immediate access to the front-loaded hours at the beginning of each benefit year and do not accrue hours throughout the year. Employers keep track of when employees use their paid sick time hours. If from January 2019 through July 2019, an employee was front-loaded paid sick time (i.e., a type of leave that can be used for all paid sick time uses under Chapter 20), vacation, paid time off, etc., the employer may count those hours towards accrual for purposes of compliance for an entire benefit year 2019.
A: An employer who chooses this option may front-load any amount so long as it meets the minimum requirements of the Ordinance.
Example: Nelly's Nails, and employer with 18 employees, does not provide paid sick time for her employees. Nelly decides to front-load 26 hours and 40 minutes (5/12 X 64 hours) for August 1 through December 31 of 2019. On January 1, 2020, Nelly will front-load 64 hours for each employee. If Nelly's Nails had 15 or fewer employees and Nelly wanted to front-load a prorated amount of hours for August through December, Nelly could have front-loaded 20 hours (5/12 X 48 hours).
Example: Samaya is a business owner with an employer size of 8 employees. She employs Sarah and front-loads Sarah's paid sick time hours once per benefit year. Has Samaya complied with the accrual and carryover requirements of the Paid sick time Ordinance? Yes. Must she provide additional hours if Sarah uses all 48 hours in the "bank"? No. What if Sarah works more than 1,400 hours (the number of hours Sarah would need to work to accrue 48 hours under the accrual method) in a year? Samaya is not required to front-load more paid sick time hours or permit Sarah to accrue more paid sick time hours under the accrual method.
Example: Joe and Estefania work for an employer that front-loads their hours. Each gets 64 hours at the beginning of the benefit year. Joe uses all of his hours for the benefits year, and Estefania uses 30 hours. How many hours do Joe and Estefania have the beginning of the next benefit year? Each has 64 hours.
Example: Misha Movers has 13 employees and has a paid sick leave policy in which it front-loads 40 hours at the beginning of each benefit year, June 1, for each employee. To comply with the Ordinance, Misha must frontload an additional 8 hours to be in compliance with the maximum accrual limit for its employer size. The number of hours an employee uses before August 1, 2019 is irrelevant. For example, if Mohammed used 30 of his 40 hours before August 1, 2019, Misha Movers only needs to front-load 8 hours (40 hours + 8 hours), not 38 hours (10 hours + 38 hours).
Example: Robert is a new employee who started February 27, 2020 for an employer with 150 employees and a benefit year from October 1 to September 30. His employer may front-load a prorated amount of 37.86 hours (7.1/12 X 64 hours for February 27-September 30) and then front-load 64 hours for him and the other existing employees to use until September 30 of the following year.
Example: Juanita works for an employer that front-loads 64 hours of paid sick time each year. She has never used any of her hours. After 3 years, how many hours does she have? Juanita has 64 hours and not 192 hours. The carryover requirement does not require employers who front-load hours to let their employees carryover hours. For employers that use the accrual method, the Ordinance does not require an employee to accrue more than maximum accrual cap in their "bank."
6. Q: May an employer front-load yearly a prorated amount of paid sick time hours for the benefit year if an employee works part time?
A: Yes, but an employer must comply with the accrual rate, cap, and carryover requirements for each benefit year.
Example: Jorge is part-time employee who works 20 hours per week for an employer who chooses to front-load hours. Jorge's employer can front-load 32 hours (half of the maximum accrual cap of 64 hours for his employer's size) for the benefit year and comply with the Ordinance because it meets the basic accrual limits. However, Jorge's employer must permit him to accrue up to and carryover at least 64 hours.
7. Q: May an employer treat employees differently, for example, front-loading paid sick time for some and using the accrual method for others?
A: Yes. As long as an employer provides all employees at least what the employees are entitled under the Ordinance, an employer may provide some but not other employees more or different benefits. (Warning: Compliance with the Earned Paid Sick Time Ordinance does not guarantee compliance with other civil rights protections or all applicable laws.)
Example: Xavier's Xylophones front-loads its full-time employees paid sick time hours and requires its part-time employees to accrue paid sick time hours through the accrual method.
Example: Javier's Hamburgers front-loads its existing employees' paid sick time hours and provides new employees with paid sick time hours through the accrual method. On January 1, Javier's Hamburgers front-loads the accrual cap for all employees, including the employees that were considered new employees in the previous year.
8. Q: Are employees covered by the terms of a collective bargaining agreement exempt from the Ordinance?
A: No. However, a collective bargaining agreement may modify the annual cap by an agreement expressly stated in the contract, even if the agreement provides for an annual accrual cap that is less than the Ordinance requires.
9. Q: What are the requirements for notifying employees about their balance of available paid sick time hours?
A: Employers must provide an at-least monthly statement to each employee. The statement can be provided in writing or electronically. For employers using the accrual method, an employer shall provide a statement showing the name of the employee, the name of the employer, the statement's date, the statement period, the number of hours worked within the geographic boundaries of the City during the statement period, the amount of paid sick time accrued during the statement period, the amount of paid sick time used during the statement period, and the amount of the employee's available earned paid sick time (i.e., the "bank"). For employers using the front-loading method, an employer shall provide a statement showing the name of the employee, the name of the employer, the statement's date, the statement period, the paid sick time hours made available at the beginning of the year, the amount of paid sick time used during the statement period, and the amount of the employee's available paid sick time.
Note: Exempt employees (employees who are properly exempt from the overtime pay requirements of the Fair Labor Standards Act) are presumed to work 40 hours per week for the purposes of paid sick time accrual. When an exempt employee's regular work week is less than 40 hours, paid sick time accrues based upon that employee's actual regular work week.
Example: Kayvon is an employer who uses the accrual method. He already provides each employee a bi-weekly paycheck stub that includes the employee's name, the employer's name, the statement's date, the statement period, and the number of hours worked within the geographic boundaries of the City of Dallas during the statement period. He decides it is easiest to add the amount of paid sick time accrued during the statement period, the amount of paid sick time used during the statement period, and the amount of the employee's available earned paid sick time.
Example: Hiwote is an employer who front-loads her employees' paid sick leave hours. She already has a web portal that each employee uses to check their pay and hours. She ensures it includes the name of the employee, the name of the employer, the statement's date, the statement period, the paid sick time hours made available at the beginning of the year, the amount of paid sick time used during the statement period, and the amount of the employee's available paid sick time. She updates the information at least once a month.
Example: Antonia provides a paycheck stub to her employees bi-weekly. She decides she wants to provide a separate paid sick time statement monthly. She creates the notice and includes the required information.
10. Q: How long must employees retain records relating to paid sick time?
A: Employers must retain the notification statement and other records related to an employee's use and accrual of paid sick time hours for each employee for at least three years.
Example: On September 3, 2022, an employer may dispose of an earned paid sick time statement with the statement date of September 3, 2019 that covered the statement period of August 2019.
11. Q: May employers require employees to provide advance notice of paid sick time absences?
A: Generally, yes. For use of paid sick time that is foreseeable, employers may require notice ahead of time. For an unforeseeable use of paid sick time, an employer may require notice as soon as is practicable.
Example: José works for Commercial Cleaning Inc., which typically requires its employees to provide at least 24 hours advance notice of any absence. Two hours prior to José's shift, a family member calls José from the hospital regarding a serious car accident involving José's son. May Jose use paid sick time in these circumstances? Yes. In this situation, José need not comply with Commercial Cleaning Inc.'s 24-hour advance notice policy; rather, he should provide Commercial Cleaning Inc. with notice as soon as practicable under the circumstances. Refusing to allow José's paid sick time use during this medical emergency would constitute a violation of the Earned Paid Sick Time Ordinance.
Example: Cerise Company employs Bernadette. Cerise Company has a policy requiring at least seven days advance notice (or as soon as practicable) from its employees of paid sick time use or other types of leave. Bernadette schedules an annual check-up for her daughter several months in advance but forgets to inform Cerise Company until two days before the appointment. Can Cerise Company deny Bernadette's request to use paid sick time or refuse to compensate Bernadette for work hours scheduled during her daughter's doctor's appointment? Yes. The Earned Paid Sick Time Ordinance allows employers to maintain a policy requiring advance notice, when foreseeable. Health care visits scheduled in advance are foreseeable.
12. Q: Does an employee have to provide verification for use of paid sick time?
A: Sometimes. An employer may not link approval of use of paid sick time or compensation to the employee providing documentation from a third party, such as a medical professional, unless the employee is absent for more than three consecutive scheduled workdays (i.e., three days on which they were scheduled to work and not necessarily consecutive business days or calendar days). An employer should allow an employee a reasonable amount of time to provide the employer with verification.
Example: Malachy works Mondays, Wednesdays, and Fridays. He calls in sick on Monday and misses work Monday, Wednesday, and Friday. After Malachy misses Friday, his employer may request verification that Malachy is using his paid sick time hours for a use permitted by the Ordinance. Malachy's employer may condition payment of paid sick time hours on receipt of verification (e.g., a doctor's note) because he has missed three consecutive scheduled work days.
Example: Ian needs to use paid sick time hours on Tuesday through Friday of the same work week. His employer has a form that employees complete themselves that certifies that they used paid sick time hours for a use authorized by the Ordinance and that they understand that they may be disciplined for unauthorized use. He completes the form upon returning to work.
Note: An employee who uses paid sick time hours for purposes other than those authorized under the Earned Paid Sick Time Ordinance is not protected by the Ordinance.
13. Q: What is the rate of pay for an employee who is paid an hourly wage?
A: Compensation for the use of paid sick time hours is what the employee would have earned if the employee had worked the scheduled work time, excluding an overtime premium, tips, commissions, service charges, or holiday pay that might have been lost while they were off work using their earned paid sick time.
Example: Jaylene is paid $12.00 per hour for her work. She receives $12.00 per hour of earned paid sick time used.
Example: Rosa is a server at a restaurant. Her employer takes the tip credit, so Rosa earns $2.13 from her employer and tips from customers to bring her hourly rate to at least minimum wage. Rosa normally earns $20.00 per hour with tips. When Rosa uses her earned paid sick time hours, her employer must pay her at least the minimal wage—currently $7.25 per hour.
Example: Chris was scheduled to work Thanksgiving and would have received 1.5 times his regular rate of pay. Chris became ill and used paid sick time hours, receiving only his regular rate of pay.
14. Q: How does an employer calculate hourly earned paid sick time compensation for a salaried employee who has no set schedule?
A: For employees who are paid an annual salary and are exempt from the overtime requirement of the Fair Labor Standards Act, an employer should divide the gross annual salary by 52 to determine the employee's weekly salary, and then divide the weekly salary by the number of hours in the employee's normal work week, even if the employee actually works more or fewer hours in a particular work week.
Example: D'Angela earns $36,000 per year and works 40 hours per week. Her employer should divide $36,000 by 52 weeks and then by 40 hours (($36,000 / 52 hours = $692.31) and then ($692.31 / 40 hours = $17.31)). She should earn $17.31 for every paid sick time hour she uses.
15. Q: If an employee is paid based on production (i.e., a "piece rate") what rate of pay should be used for earned paid sick time hours?
A: For an employee paid partially or wholly on a piece rate basis, an employer should divide the total earnings by the total hours worked in the most recent work week in which the employee performed identical or substantially similar work to the work the employee would have performed had the employee not used paid sick time.
Example: Steven works 40 hours per week and is paid $0.25 per widget assembled. He uses 16 hours of paid sick time. He earned $400 last work week, which is similar to the work the employee would have performed on the days he missed. His employer should divide his wages by the number of hours to get Steven's hourly rate ($400 / 40 hours = $10). His employer should pay him $10 per hour for the earned paid sick time hours Steven used.
16. Q: How quickly must an employer pay an employee for their use of paid sick time hours?
A: An employer must pay an employee for their use of paid sick time on the payday for the pay period in which paid sick time was used by the employee. If an employer requires verification of the use of paid sick time of more than three consecutive days, an employer shall pay sick time to an employee no later than the payday for the pay period during which verification is provided to the employer.
17. Q: Are employers required to pay out unused paid sick time hours at the end of an employment relationship?
A: No. Nothing in the Earned Sick Time Ordinance requires employers to allow employees to pay out unused paid sick time hours at the time of separation. However, employers may choose to do so. If an employer chooses to pay out an employee's paid sick time hours and the employee is rehired within 6 months, then the employer is not required to restore the employee's earned paid sick time balance to its level at the time of separation.
Example: Theodore quits his job at Tasty Turnovers. While not required by the Earned Paid Sick Time Ordinance, Tasty Turnovers has a policy of paying out unused paid sick time hours. Theodore has 33 paid sick time hours in his "bank" and is paid $10 per hour. Tasty Turnover pays Theodore $330. When Tasty Turnover rehires Theodore 5 months later, Theodore's paid sick time "bank" is 0 hours.
Example: Paolo is a H2B foreign guest worker who travels to the United States to work for American Landscaping Co. from March 15 to October 31 of each year. When Paolo returns on March 15 of the following year, American Landscaping Co. must reinstate Paolo's accrued unused sick time hours.
18. Q: Does an employee earn paid sick time no matter their location?
A: No. Only an employee who performs at least 80 hours of compensable work in a benefit year within geographic boundaries of the City of Dallas is covered by the Earned Paid Sick Time Ordinance. Employers may also restrict an employee's accrual of paid sick time to the time that the employee performs work within the City of Dallas. An employer may voluntarily allow accrual of paid sick time hours regardless of an employee's geographic location if it chooses.
19. Q: If an employer contracts with a temporary staffing agency or other type of joint employer, which entity is responsible under the Earned Paid Sick Time Ordinance to meet the sick and safe time obligations to employees?
A: More than one entity may be considered an employee's "employer" under the Earned Paid Sick Time Ordinance and, if so, each has an independent obligation to ensure that the Ordinance requirements are met. For example, these "joint employers," may include a staffing agency or professional employer organization and a client. Joint employers may agree between themselves which will monitor their collective compliance with the Ordinance. However, any such assignment of responsibility does not affect the rights of employees under the Ordinance. An employee is not entitled to a duplicative paid sick time hour from each "joint employer."
Example: An employee has worked for various businesses through a temporary staffing agency and has accrued 32 hours of paid sick time. However, the employee has only worked for one week at her current assignment. Is the employee entitled to use paid sick time? The temporary staffing agency has the responsibility for providing sick time in this scenario since the employee has worked for it for at least 80 hours and accrued paid sick time hours.
20. Q: Does the Earned Paid Sick Time Ordinance require employers to provide earned paid sick time to independent contractors?
A: No. However, merely labeling someone as an "independent contractor" does not necessarily relieve the employer of its obligations under the Earned Paid Sick Time Ordinance. To determine whether a worker is an employee or independent contractor, employers should use the common-law test under Section 821.5 Texas Administrative Code, outlined in Workforce Commission Form C-8, located at: https://texreg.sos.state.tx.us/fids/200700686-1.pdf.
21. Q: What is retaliation?
A: Retaliation is conduct that disciplines or discourages an employee's proper request and use of paid sick time hours, report or attempted report of a violation of the Earned Paid Sick Time Ordinance, participation or attempted participation in an investigation or proceeding under the Ordinance, or exercise or attempted exercise of an employee's rights under the Ordinance. Both the Ordinance and Rules describe conduct that constitutes retaliation.
Example: Because it discourages proper use of paid sick time, an employer may not establish a point system in which employees receive points for using their paid sick time, and after receiving a specific number of points, the employee is terminated.
22. Q: May an employer discipline an employee who misuses their earned paid sick time hours?
A: Yes. An employee who uses their paid sick time hours for purposes other than those authorized under the Earned Paid Sick Time Ordinance is not protected by the Ordinance. The anti-retaliation provision of the Ordinance does not prohibit discipline for misuse of paid sick time hours.
23. Q: How may an employer address unauthorized use of paid sick time hours?
A: If an employer discovers that an employee has used their paid sick time hours for a use not permitted by the Paid Sick Time Ordinance or the employer's policy, the employer may discipline or terminate the employee. If an employer discovers misuse of leave before payday, an employer may refuse to pay the employee for the paid sick time hours that the employee misused. If an employer discovers misuse of leave after payday, an employer may deduct the number of hours the employee misused from the employee's "bank."
24. Q: How will the Earned Paid Sick Time Ordinance be administered?
A: For employers with 6 or employees, except for violations of the anti-retaliation provision, the City of Dallas will not enforce the Earned Paid Sick Time Ordinance until April 1, 2020. Even if an employee properly files a complaint within 2 years of the alleged violation, the Office will not investigate complaints of alleged violations that occur between August 1, 2019 and March 31, 2020 or enforce the Ordinance during that period. For employers with 5 or fewer employees, no part of the Ordinance, including enforcement goes into effect until August 1, 2021. The Office of Fair Housing and Human Rights will administer the Ordinance in accordance with the Ordinance and the Rules.
25. Q: How can someone file a complaint if they believe their right to earned paid sick time has been violated?
A: A complaint may be submitted on the complaint form, and the complaint form may be emailed, hand delivered, or mailed. A complaint does not have to be on the complaint form; it can be in writing or by email. Complaints may be taken over the phone. Complaints may be anonymous and made on behalf of someone else. While the enforcement of the Ordinance is complaint-based, the Office of Fair Housing and Human Rights is not confined to investigating only the issue specified in the complaint. If the Office of Fair Housing and Human Rights discovers additional violations through the course of its investigation, the Office of Fair Housing and Human Rights may pursue enforcement action for those violations.