Sept. 21 2016 01:58 PM

Construction-industry work-around goes viral

A spat over paid sick leave has Councilmember Todd Gloria feeling under the weather.
Photo illustration by John R. Lamb

Without labor, nothing prospers.

—Sophocles

It seems like only yesterday that termed-out San Diego City Councilman Todd Gloria, close to punching his ticket for new adventures in Sacramento, was basking in the glow after voters in June overwhelmingly approved Proposition I.

The measure, which boosted the city’s minimum wage to $10.50 an hour in July when the City Council certified the election results, also mandated five paid sick days per year for all employees in San Diego, two more than guaranteed by the state.

So it would be natural to assume that a ballot measure approved by 63 percent of city voters would be a breeze to implement. Then again, Spin Cycle will remind you this is San Diego, where nothing comes easy and the best-laid plans can go awry.

The good news is the current brouhaha has nothing to do with the wage hike, which will rise again in January to $11.50 an hour, as the measure requires. The not-so-good news, however, centers on the earned sick leave portion of the measure.

When the City Council gathered on July 11 to consider approval of an implementing ordinance for the ballot measure, most observers were anticipating a fairly quick, drama-free discussion and thumbs-up vote. Instead, the conversation turned testy and weird, leaving Gloria visibly perturbed.

At the heart of the angst? Last-minute language proposed by advocates of construction industry workers that Proposition I proponents argued would sabotage the will of the voters when it comes to paid sick days.

The proposed amendment, introduced by San Diego Councilmember Marti Emerald at the July 11 meeting at the request of building-trade representatives, read as follows: “An employer who provides greater paid time off, either through a contract, collective bargaining, agreement, employment benefit plan, or other agreement, than that required by the Division is deemed to be in compliance even if the employer utilizes an alternative methodology for calculation of, payment of, and use of sick leave or other paid time off that can be used as sick leave.”

Quite a mouthful, indeed, to throw into the mix at the last minute, but construction workers are a different lot, moving from one project to another and often serving multiple employers.

Tom Lemmon, business manager for the San Diego County Building and Construction Trades Council AFL-CIO who spoke in favor of the change in July, was succinct in assessing the brouhaha churned up over the amendment: “It’s complicated!”

But Clare Crawford, executive director of the Center for Policy Initiatives, a key player in the local minimum-wage push, said the result is not complicated. Unless the language is corrected, Crawford argued, “What you’re going to see as a result is workers who won’t get access to their sick days that the city provided because the language says essentially you can make an agreement with an employee that basically signs away their ability to access those days.”

“The bottom line,” she added, “is if you want to look for a solution that meets the needs of the construction industry vis-à-vis workers being able to receive the benefit, then that’s what we should do. The intention here of voters is to ensure that all workers have access to five earned sick days.”

For many workers, Crawford noted, it’s not as simple as waking up one day with a fever and calling in sick. Without the guaranteed sick days, many employees fear retaliation, loss of income and even termination if they miss work.

She can imagine a scenario where a fast-food or retail worker not represented by a union could be told by their employer that they will provide the five sick days, just not using the same accrual method as the city or “you can’t use it without giving us two weeks notice. Under this provision, I don’t see how the city would say they’re not complying.”

In a memo to council members following the July 11 hearing, the Center for Policy Initiatives argued that the amendment should be stricken from the implementing ordinance: “Rather than creating a narrowly targeted policy to address the specific conditions of the building and construction trades, the currently proposed language…creates a broad and significant loophole in the provision of local earned sick days.”

Local workers are already taking note. In its latest newsletter, Boilermakers Local 1998—the shipyard workers union representing hundreds of NASSCO employees—mentions the new paid sick leave requirement and urges workers “if you believe you are not being paid correctly, please see your union shop steward and file a complaint form TODAY” with the city’s newly created Minimum Wage Enforcement Office.

“Hundreds” of complaints have been filed by those workers, a labor organizer confirmed privately. NASSCO and its employees are currently enmeshed in contract negotiations.

Concerns also abound over how Mayor Kevin Faulconer will react to the amended language. An opponent of the minimum-wage hike and mandated sick leave, the mayor has veto power on the matter. Faulconer’s office did not respond to a request for comment. Gloria’s office says he hopes to have a “fix” by October.

“I think at a minimum we would hope that the mayor would be willing to strike that language and return it to the original intention of the ordinance now that there are actually complaints and there’s a test case,” Crawford said. “There are employees of NASSCO asking for Proposition I to be enforced on their employer who does not allow them to take sick days without notice.”

Crawford said she has spoken to carpenters’ representatives who are “open to limiting that language to the construction industry so it’s not negatively impacting other workers. You could deal with the construction industry in a different way than you deal with other employees, but what got passed got applied to all employees, and what it did was actually undercut other workers’ abilities to access those paid days.”

Crawford had hoped to speak at the July 11 council meeting but got stuck on a train outside of Solana Beach. She wound up watching the council deliberations on her mobile device. “I was literally screaming at my phone,” she added.

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