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CAUSE NO. 2019CI13921

ASSOCIATED BUILDERS & § IN THE DISTRICT COURT

CONTRACTORS OF SOUTH TEXAS §

INC., AMERICAN STAFFING §

ASSOCIATION, BBM-ONLINE, LLC §

D/B/A BBM STAFFING, THE BURNETT §

COMPANIES CONSOLIDATED, INC. §

D/B/A BURNETT SPECIALISTS, §

CARDINAL SENIOR CARE, LLC D/B/A §

CARDINAL MED STAFFING, CHOICE §

STAFFING, LLC, EMPLOYERS §

SOLUTIONS, INC., HAWKINS §

PERSONNEL GROUP, LEADINGEDGE §

PERSONNEL, LTD. STAFF FORCE, INC. §

D/B/A STAFF-FORCE PERSONNEL §

SERVICES, SAN ANTONIO §

MANUFACTURERS ASSOCIATION, §

SAN ANTONIO RESTAURANT §

ASSOCIATION, §

Plaintiffs, §

§

v. § BEXAR COUNTY, TEXAS

§

CITY OF SAN ANTONIO, TEXAS, RON §

NIRENBERG, MAYOR OF THE CITY OF §

SAN ANTONIO, ERIK WALSH, CITY §

MANAGER OF THE CITY OF SAN §

ANTONIO, and COLLEEN BRIDGER, §

DIRECTOR OF THE SAN ANTONIO §

METROPOLITAN HEALTH DISTRICT, §

Defendants, §

§

and §

§

MARILYN WASHINGTON, §

MOVE TEXAS ACTION FUND, and §

TEXAS ORGANIZING PROJECT §

EDUCATION FUND, §

Intervenor-Defendants. § 408TH JUDICIAL DISTRICT

INTERVENOR-DEFENDANTS’ PETITION IN INTERVENTION

Intervenor-Defendants, Marilyn Washington, MOVE Texas Action Fund (“MOVE”), and

Texas Organizing Project Education Fund (“TOP”), (collectively, “Intervenors”) respectfully file

this Petition in Intervention as a matter of right pursuant to Tex. R. Civ. P. 60. By this filing,

Intervenors appear in the above-captioned case as defendants. As parties with justiciable interests

in the outcome of this case, Intervenors seek to defend City of San Antonio Ordinance No. 2018-

08-16-0620 (August 16, 2018) (“Ordinance”) against claims advanced by Plaintiffs. The

Ordinance at issue requires certain employers in the City of San Antonio to allow eligible

employees to earn paid sick time under certain circumstances.

Intervenors each have justiciable interests in this litigation that permit them intervention

by right. As described below, each would benefit from the City’s Earned Sick Time Ordinance,

and, conversely, sustain substantial economic loss were the Earned Sick Time Ordinance to be

enjoined. In support of this Petition, Intervenors respectfully show as follows:

I.

INTERVENTION

The Parties

1. Plaintiffs filed this lawsuit on July 15, 2019. Plaintiffs are trade associations and

business entities allegedly injured by the Earned Sick Time Ordinance, which is attached as

Exhibit A. Plaintiffs seek declaratory judgment that the Earned Sick Time Ordinance is

preempted by the state’s minimum wage law and unconstitutional pursuant to several provisions

of the Texas Constitution, and seek temporary and permanent injunctions of the Ordinance on this

basis.

2. Intervenor Marilyn Washington is a resident of San Antonio, Texas where she

works as a home care provider. The last three digits of her driver’s license number are 064. The

last three digits of her Social Security number are 531. Ms. Washington meets all eligibility

requirements to earn sick time under the Earned Sick Time Ordinance. Ms. Washington’s

employer is not subject to a collective bargaining agreement and does not provide Ms. Washington

the opportunity to earn sick-time prior to implementation of the Ordinance. Over the past year,

Ms. Washington has had to take unpaid time off from work for several visits to the hospital and

doctor’s office to treat an injury to her hand, as well as to her back, shoulder, and neck. She has

also recently had to take unpaid time off from work, and anticipates needing to take additional

time off from work, to consult with an eye doctor about a vision problem. Ms. Washington’s

ability to pay bills on time, maintain her residence, and provide for her family is hindered without

the benefit of paid sick time. Ms. Washington stands to benefit directly from the Earned Sick Time

Ordinance by earning paid sick time to which she would not otherwise be entitled. Ms.

Washington’s financial stake in the outcome of this litigation is obvious on the face of the

Ordinance and the Plaintiffs’ Original Petition.

3. Intervenor MOVE is a Texas nonprofit corporation, organized under section

501(c)(4) of the Internal Revenue Code, with its principal place of business in San Antonio,

Texas. MOVE empowers underrepresented youth communities to build a better democracy

through voter engagement, leadership development, and issue advocacy. Founded in 2013, MOVE

now employs 18 people. MOVE serves underrepresented youth communities who are qualifying

employees who are eligible for earned sick time under the Earned Sick Time Ordinance, and

thereby directly affected by it. Accordingly, the Earned Sick Time Ordinance directly advances

MOVE’s mission and personally and economically benefits the community it serves. MOVE has

spent and continues to spend significant resources to educate the public about the Ordinance and

their rights thereunder. Should the Ordinance be enjoined, MOVE will be required to spend

significant additional resources to reeducate the communities it serves about their rights and

options as workers. Additionally, as an employer that provides paid sick time to its employees,

MOVE stands to suffer a competitive disadvantage compared to the status quo under the Ordinance

if it is enjoined relative to similar organizations that do not provide this benefit. As an advocacy

organization, MOVE also has a justiciable interest in this litigation as an injunction would force

MOVE to expend additional resources in advocating for new reforms that it would not have spent

had the law gone into effect as planned. In addition to rendering past advocacy efforts

inconsequential, it would require an enormous amount of additional time, money, and effort, and

would severely strain MOVE’s resources set aside for other advocacy projects. As an organization

committed to empowering underrepresented youth to advocate for young workers’ rights and a

sustainable economy, the interests in earned sick time that MOVE seeks to protect in this litigation

fall squarely within MOVE’s stated mission and purpose.

4. Intervenor TOP is a Texas nonprofit corporation, organized under section 501(c)(3)

of the Internal Revenue Code, with its principal place of business in San Antonio, Texas. TOP is

a membership-based organization that empowers low and moderate-income neighborhoods to

build political power and stronger communities through issue advocacy, lobbying efforts, and

electoral organizing. Founded in 2009, TOP now has 38 employees working in three offices across

the state. TOP’s membership is comprised of low to moderate-income workers, including those

who are qualifying employees within the City of San Antonio, eligible for earned sick time under

the Earned Sick Time Ordinance, and thereby directly and financially affected by its

implementation. Accordingly, the Earned Sick Time Ordinance directly advances TOP’s mission

and personally and economically benefits its members. Nevertheless, defending the Ordinance

does not require the participation of TOP’s individual members, as Plaintiffs’ claims are primarily

questions of law and the benefit conferred to TOP’s members is obvious on the face of the Earned

Sick Time Ordinance itself. TOP also has a justiciable interest in this case in its own right as an

employer that would suffer a competitive disadvantage if the Ordinance were enjoined and as an

advocacy organization that has and continues to spend significant resources to educate workers

about their rights under the ordinance and would additionally be required to duplicate their

previous efforts if the Ordinance were enjoined.

5. Defendant, the City of San Antonio, is an incorporated “home-rule” city in Bexar

County, Texas. The remaining Defendants are sued in their official capacity as representatives of

the City of San Antonio.

Intervention as a Matter of Right

6. Intervenors join this case as defendants denying Plaintiffs’ claims. See Tex. R. Civ.

P. 60 (“Any party may intervene by filing a pleading, subject to being stricken by the court for

sufficient cause on the motion of any party.”); Guar. Fed. Sav. Bank v. Horseshoe Operating Co.,

793 S.W.2d 652, 657 (Tex. 1990) (“[U]nder Rule 60, a person or entity has the right to intervene

if the Intervenor could have brought the same action, or any part thereof, in his own name, or, if

the action has been brought against him, he would be able to defeat recovery, or some part

thereof”). “Intervenors can be characterized as plaintiffs or defendants depending on the claims

asserted and relief requested by the intervenor.” In re Ford Motor Co., 442 S.W.3d 265, 274 &

nn. 27–28 (Tex. 2014) (orig. proceeding); see also Perkins v. Freeman, 518 S.W.2d 532, 534 (Tex.

1974) (characterizing an intervenor as a defendant because there “was no antagonism between the

intervenors and defendant”). Additionally, intervention as a defendant is proper even if a plaintiff

could not have sued the intervening defendant directly; the proper consideration is the intervenors’

interest in the outcome of the case. Jenkins v. Entergy Corp., 87 S.W.3d 785, 797 (Tex. App.—

Corpus Christi 2006, pet. denied) (“Even where an intervenor has not or could not have been sued

directly, if a judgment for the plaintiff may lead to an action against the intervenor or otherwise

seriously prejudice the intervenor, the intervention is necessary to assure a proper defense against

the claim.”); Evan’s World Travel, Inc. v. Adams, 978 S.W.2d 225, 234 (Tex. App.—Texarkana

1998, no pet.) (same); see also Stansell v. Fleming, 16 S.W. 1033, 1034 (Tex. 1891) (explaining

that a party is entitled to intervene in an action when their rights are implicated by the subject-

matter of the litigation making it necessary for the party “to come into the case for the preservation

of that right”).

7. Intervenors are entitled to intervene in this case because (a) they have justiciable

interests in the controversy sufficient to have “brought the same action or defeated any part

thereof,” even if they could not have been sued directly by the Plaintiffs, (b) “the intervention will

not complicate the case by an excessive multiplication of the issues,” and (c) this intervention is

“essential to effectively protect the intervenor’s interest.” See Guar. Fed. Sav. Bank v. Horseshoe

Operating Co., 793 S.W.2d 652, 657 (Tex. 1990) (emphasis added) (overturning district court’s

order to strike intervention); Jenkins v. Entergy Corp., 87 S.W.3d 785, 797 (Tex. App.—Corpus

Christi 2006, pet. denied) (recognizing that intervention as a defendant does not require that the

intervenor could have been sued directly by the Plaintiffs).

8. Because Intervenors enter this case as defendants, they need not have any live

claims in order to proceed in defending against Plaintiffs’ claims, and they have a justiciable

interest because the outcome of the case will prejudice their rights in the status quo.

9. While Intervenor Washington is an individual worker directly and economically

affected by the outcome of this case, the principles of organizational and associational standing

demonstrate that MOVE and TOP are also proper intervenors with justiciable interests in this case.

Each organization, as a representative of the workers who make up their membership, as

employers, and/or as advocates for San Antonio workers, satisfy the general standing principles

that permit organizations to protect their interests and the interests of their members in litigation.

As a general rule, a membership organization has associational standing when: “(a) its members

would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are

germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested

requires the participation of individual members in the lawsuit.” Texas Ass’n of Bus. v. Texas Air

Control Bd., 852 S.W.2d 440, 447 (Tex. 1993) (quoting Hunt v. Washington State Apple

Advertising Commission, 432 U.S. 333, 343 (1977)). Additionally, an organization has standing

to intervene in its own right when it, as an organization, will have its rights implicated by the

litigation. See OCA-Greater Houston v. Texas, 867 F.3d 604, 610–12 (5th Cir. 2017) (holding that

voter advocacy group had organizational standing in its own right because of additional outreach

made necessary by the allegedly invalid Texas law at issue); Ass’n of Cmty. Organizations for

Reform Now v. Fowler, 178 F.3d 350, 356 (5th Cir. 1999) (“An organization has standing to sue

on its own behalf if it meets the same standing test that applies to individuals.”); see also Texas

Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 447 (Tex. 1993) (indicating that Texas

courts use the terms “associational standing” and “organizational standing” interchangeably but

nevertheless relying on federal case law for establishing whether an injury-in-fact exists for

standing purposes).

10. MOVE and TOP’s potential injury is directly a result of the risk of the Earned Sick

Time Ordinance potentially being enjoined, and resolution in favor of Intervenors in this case will

redress and prevent that injury. See Bennett v. Spear, 520 U.S. 154, 167 (1997) (citing Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (discussing the “irreducible constitutional

minimum” for standing requiring injury, causation, and redressability)).

Other Factors Favoring Intervention

14. Because Intervenors seek only to defend against Plaintiffs’ claims, Intervenors’

interest and defenses arise from the same transaction or occurrence and involve only questions of

law and/or fact as to Plaintiffs’ claims—namely, whether the Earned Sick Time Ordinance is

preempted by the state minimum wage law and whether the Ordinance is lawful under the state’s

Constitution. Intervention in this case will not complicate the case by adding any new claims of

law or any factual evidence that was not already relevant to the case, but will only permit

Intervenors to protect their interests. See Texas Supply Center, Inc. v. Daon Corp., 641 S.W.2d

335, 337 (Tex. App.—Dallas 1982) (allowing intervention where intervention was permitted, and

where intervenor bank established a viable financial interest in the outcome of the litigation); Inter-

Continental Corp. v. Moody, 411 S.W.2d 578, 589 (Tex. Civ. App.—Houston 1966) (allowing

intervention where intervenor shareholder could have initiated the suit, and where intervention

would prevent the need to file a separate suit). Indeed, “[j]udicial economy requires that [the

intervenors] intervene and participate in the trial in order to avoid a multiplicity of lengthy

lawsuits.” Guar. Fed. Sav. Bank, 793 S.W.2d at 658.

15. A party may intervene when, as is the case here, intervention is essential to protect

the Intervenors’ interests. See, e.g., Guar. Fed. Sav. Bank, 793 S.W.2d at 657–58 (allowing

intervention where “almost essential to effectively protect [intervenor]’s interests”). Absent

participation in this litigation, Intervenors have no legal recourse to protect their affirmative rights

currently under attack by the Plaintiffs.

16. Upon information and belief, the original Defendants in this case will not

adequately protect the rights of the Intervenor Defendants. Specifically, upon information and

belief, including news articles quoting the San Antonio City Attorney’s Office Employees, the

original Defendants may intend to agree to a temporary injunction of the Ordinance, severely

prejudicing the rights of the Intervenors who, in the status quo, will begin to earn paid sick time

on August 1, 2019.

II.

GENERAL DENIAL

18. Subject to such stipulations and admissions as may be made in this litigation,

Intervenors generally deny each and every allegation in Plaintiffs’ Petition in accordance with

Texas Rule of Civil Procedure 92 and demand strict proof of such allegations in accordance with

the appropriate burden of proof as the Court may order in accordance with the laws of the State of

Texas.

III.

AFFIRMATIVE DEFENSES

19. Plaintiffs fail to meet the pleading verification requirements for injunctive relief in

Tex. R. Civ. P. 682, and therefore are not entitled to injunctive relief. The Court is barred from

granting such relief by the Texas Rules of Civil Procedure.

20. The equitable doctrine of laches bars Plaintiffs request for a temporary injunction.

The right to temporary injunction, itself being an equitable remedy dependent on the circumstances

of the case, must we weighed against all other equitable considerations. A party is not entitled to

equitable relief when it is guilty of inequitable conduct, such as unclean hands or laches. Landry’s

Seafood Inn & Oyster Bar-Kemah, Inc. v. Wiggins, 919 S.W.2d 924, 927 (Tex. App.--Houston

[14th Dist.] 1996, no writ). Despite knowing of the Earned Sick Time Ordinance’s passage and

planned implementation date for nearly a year (indeed, some Plaintiffs or their representatives

testified at City Council prior to the Ordinance passing), Plaintiffs chose to bring this suit a mere

15 days before the Ordinance is set to go into effect, with a hearing only 7 days prior to its effective

date. By doing so, Plaintiffs have gained an unfair business advantage over hundreds or thousands

of businesses who have worked diligently to prepare for the Ordinance’s effective date, and caused

the City of San Antonio and Intervenors to spend massive amounts of resources to educate

businesses and the public about the implementation of the Ordinance. The doctrine of laches

requires that Plaintiffs not be rewarded for their delinquency in filing suit.

21. Pursuant to Texas Rule of Civil Procedure Rule 91a, Intervenors affirmatively

reserve their right to move the Court to dismiss Plaintiffs’ claims in this case because Plaintiffs’

claims have no basis in law or fact in that (1) the allegations, taken as true, together with inferences

reasonably drawn from them, do not entitle Plaintiffs to the relief they seek, and (2) to the extent

that Plaintiffs’ claims are dependent on pleaded facts, no reasonable person could believe the facts

as pleaded.

22. Defendants and Intervenors have an affirmative right to severance of any particular

provision of the Ordinance that may be deemed unlawful or subject to injunction. See San Antonio

City Code § 1-17 (“the sections, paragraphs, sentences, clauses and phrases of this Code are

severable”); Earned Sick Time Ordinance at § 6. To the extent Plaintiffs show they are entitled to

relief on any specific claim, only the challenged portion of the Ordinance should be enjoined,

leaving the remainder of the Ordinance intact.

IV.

SPECIAL EXCEPTIONS

23. Intervenors Specially Except to Plaintiffs’ claims seeking Temporary and

Permanent Injunction and the setting thereof for hearing by the Court, as their Pleadings are not

verified, and/or not properly verified by each and every Plaintiff for whom allegations are made

in the Petition. Tex. R. Civ. P. 682 (“No writ of injunction shall be granted unless the applicant

therefor shall present his petition to the judge verified by his affidavit . . . .”).

V.

REQUEST FOR ATTORNEY’S FEES & COSTS

24. Intervenors request their attorney’s fees and costs be awarded to fullest extent

permitted by law, including for successfully defending against Plaintiffs’ claims under the

Declaratory Judgment Act.

VI.

JURY DEMAND

25. Intervenors respectfully request a trial by jury.

VII.

REQUEST FOR DISCLOSURE

26. Intervenors request that Plaintiffs disclose the information and materials described

in Rule 194.2 of the Texas Rules of Civil Procedure within 30 days of receipt of this request.

X.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Intervenors respectfully request the

following relief: (1) that this matter be set for trial by jury; (2) that, upon trial/hearing, the Court

enter a judgment pursuant to the Declaratory Judgment Act that Plaintiffs take nothing, and deny

their requested relief, declaring that the Earned Sick Time Ordinance is valid and enforceable, is

not preempted by State law, and is in harmony with the Texas Constitution, Article I, §§ 3, 9, &

19; (3) that Plaintiffs’ application for temporary and permanent injunction be denied; (4) that

Intervenors be awarded their costs and attorney’s fees to the full extent permissible by applicable

law; and (5) that Intervenors be awarded all such other relief in law or equity as Intervenors may

show themselves entitled.

Respectfully submitted,

By: /s/ Ryan V. Cox

Ryan V. Cox

Mimi M.D. Marziani

Texas Bar No. 24091906

[email protected]

Rebecca Harrison Stevens


[email protected]

Ryan V. Cox


[email protected]

Emma Hilbert


[email protected]

TEXAS CIVIL RIGHTS PROJECT

1405 Montopolis Drive

Austin, Texas 78741

512-474-5073 (Telephone)

512-474-0726 (Facsimile)

ATTORNEYS FOR INTERVENORS

MARILYN WASHINGTON,

MOVE TEXAS ACTION FUND and

TEXAS ORGANIZING PROJECT

EDUCATION FUND

CERTIFICATE OF SERVICE

I hereby certify that on the 18th day of July, 2019 a true and correct copy of the foregoing Petition

in Intervention was served upon all counsel of record via the State E-file system in accordance

with Tex. R. Civ. P. 21(a).

/s/ Ryan V. Cox

Ryan V. Cox

mailto:[email protected]




CWK 08/16/18 Item No.7

AN ORDINANCE 2 0 1 8 - Q 8 - 1 6 - 0 6 2 0

AMENDING CHAPTER 15, HEALTH, OF THE CITY CODE OF SAN ANTONIO, TEXAS TO CREATE A NEW ARTICLE XI ENTITLED "EARNED PAID SICK TIME" TO REQUIRE THAT CERTAIN EMPLOYEES IN SAN ANTONIO BE PROVIDED EARNED PAID SICK TIME FOR USE IF AN EMPLOYEE NEEDS TO BE ABSENT FROM WORK BECAUSE THE EMPLOYEE OR THE EMPLOYEE'S FAMILY MEMBER EXPERIENCES ILLNESS, INJURY, STALKING, DOMESTIC ABUSE, SEXUAL ASSAULT, OR OTHERWISE REQUIRES MEDICAL OR HEALTH CARE, INCLUDING PREVENTATIVE CARE AND MENTAL HEALTH CARE, ESTABLISHING NOTICE, POSTING, AND RECORDKEEPING REQUIREMENTS, ESTABLISHING ENFORCEMENT AUTHORITY, ESTABLISHING CIVIL PENALTIES FOR VIOLATIONS AND SETTING THE EFFECTIVE DATE.

* * * * *

WHEREAS, most workers in the City of San Antonio will at some time during each year need limited time off from work to care for their own health and safety needs or the health and safety needs of a close family member; and

WHEREAS, denying earned paid sick time to employees is detrimental to the health, safety, and welfare of the residents of the City of San Antonio; and

WHEREAS, the lack of earned paid sick time for employees contributes to employee turnover and unemployment, and harms the local economy; and

WHEREAS, the City of San Antonio, as a home-rule municipality, has the ability to address matters of public health and safety; and now finds that establishing earned paid sick time requirements is a matter of public health and safety; NOW THEREFORE:

BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SAN ANTONIO:

SECTION 1. Chapter 15, Health, of the City Code of San Antonio, Texas is hereby amended by adding the underlined (added) language and deleting stricken (deleted) language:

SECTION 2. Chapter 15, Health, of the City Code of San Antonio, Texas is hereby amended by adopting a new Article XI, entitled "Earned Paid Sick Time," to read as follows:

ARTICLE XI. EARNED PAID SICK TIME

Sec. 15-269. Definitions

Exhibit A


In this Article:

City means the City of San Antonio, Texas.

Department means the health department of the city also known as the San Antonio Metropolitan Health District.

Director means the Director of the San Antonio Metropolitan Health District or their authorized designee .

Earned paid sick time means a period of paid leave from work accrued by an employee in accord with this Article.

Employee means an individual who performs at least eighty (80) hours of work for pay within the City of San Antonio, Texas in a year for an employer including work performed through the services of a temporary or employment agency. Employee does not mean an individual who is an independent contractor according to Title 40, Section 821.5 of the Texas Administrative Code. Employee does not mean an unpaid intern.

Employer means any person, company, corporation, firm, partnership, labor organization non-profit organization or association that pays an employee to perform work for an employer and exercises control over the employee's wages hours and working conditions. The term does not include:

ill

ill

ill

(4)

the United States;

a corporation wholly owned by the government of the United States;

the state or any state agency; or

the City of San Antonio, Texas, or any other political subdivision of the state or other agency that cannot be legally regulated by City ordinance.

Family member means an employee's spouse, child, parent or any other individual related by blood or whose close association with the employee is the equivalent of a family relationship.

Medium or large employer means an employer with more than fifteen (15) employees at any time in the preceding twelve (12) months, excluding family members.

Predecessor means an employer that employs at least one individual covered in this Article, and for which a controlling interest in such employer or a recognized

2


division of such employer is acquired by a successor.

Small employer means any employer that is not a medium or large employer.

Successor means an employer that acquires a controlling interest in a predecessor or a controlling interest in a recognized division of a predecessor.

Year means a regular and consecutive twelve (12) month period as determined by the employer.

Sec. 15-270. Scope and Intent of Article.

To provide employees with the ability to accrue and use earned paid sick time when they need to be absent from work because the employee or the employee's family member suffer illness, injury, stalking, domestic abuse, sexual assault, or otherwise require medical or health care, including preventative care and mental health care.

Sec.15-271. Duties and Powers of the Director.

(a) The Director is hereby authorized to carry out and enforce the provisions of this Article, to educate employers and employees about this Article, to render interpretations of this Article, and to adopt policies and procedures in order to clarify and administer the application of this Article's provisions. Such interpretations, policies and procedures shall be in compliance with the intent and purpose of this Article. Such policies and procedures shall not have the effect of waiving requirements specifically provided for in this Article.

Sec. 15-272. Earned Paid Sick Time Requirements.

(a)

(b)

General. An employer shall provide an employee with earned paid sick time that meets the requirements of this Article in an amount up to the employee's available earned paid sick time. The employer shall pay earned paid sick time in an amount equal to what the employee would have earned if the employee had worked the scheduled work time, exclusive of any overtime premium, tips, or commissions, but no less than the state mm1mum wage.

Accrual Requirements and Yearly Cap.

ill An employer shall grant an employee one hour of earned paid sick time for every thirty (30) hours worked for the employer in the City of San Antonio. Earned paid sick time shall accrue in one hour unit increments. There shall be no accrual of a fraction of an hour of earned paid sick time unless an employer chooses such smaller increment.

3


(c)

ill

(3)

(4)

(5)

(6)

Earned paid sick time shall accrue starting at the commencement of employment or the date this Article is effective, whichever is later.

This Article does not require an employer to provide an employee with more earned paid sick time in a year than the yearly cap provided in this Section. This Article does not require an employer to allow an employee to accrue more than the yearly cap of earned paid sick time in a year. An employer may inform an employee that leave requested in excess of the employee's available earned paid sick time will not be paid. The yearly cap for earned sick time under this Article is:

(A)

(B)

Sixty-four (64) hours per employee per year for medium or large employers, unless the employer chooses a higher limit; and

Forty-eight ( 48) hours per employee per year for small employers, unless the employer chooses a higher limit.

All available earned paid sick time up to the yearly cap provided in this Section shall be carried over to the following year. Provided, that an employer that makes at least the yearly cap of earned paid sick time available to an employee at the beginning of the year under the purpose and usage requirements of this Article is not required to carry over earned paid sick time for that year.

A written contract made pursuant to Title 29, Section 158(d) of the United States Code between an employer and a labor organization representing employees may modify the yearly cap requirement established in this Section for employees covered by the contract if the modification is expressly stated in the contract.

A successor must provide to an employee who was employed by a predecessor at the time of the acquisition and hired by the successor at the time of acquisition all earned paid sick time available to the employee immediately before the acquisition.

Usage Requirements.

(1) Earned paid sick time shall be available for an employee to use in accord with this Article as soon as it is accrued, provided, that an employer may restrict an employee from using earned paid sick time during the employee's first sixty (60) days of employment if the employer establishes that the employee's term of employment is at

4


(d)

least one year.

ill An employee may request earned paid sick time from an employer for an absence from the employee's scheduled work time caused by:

(Al The employee's physical or mental illness or injury, preventative medical or health care or health condition; or

_{_fil The employee's need to care for a family member's physical or mental illness, preventative medical or health care, injury or health condition; or

~ The employee's or their family member's need to seek medical attention, seek relocation, obtain services of a victim services organization or participate in legal or court ordered action related to an incident of victimization from domestic abuse, sexual assault, or stalking involving the employee or the employee's family member.

ill An employer may adopt reasonable verification procedures to establish that an employee's request for earned paid sick time meets the requirements of this Section if an employee requests to use earned paid sick time for more than three (3) consecutive work days. An employer may not adopt verification procedures that would require an employee to explain the nature of the domestic abuse, sexual assault, stalking, illness, injury, health condition or other health need when making a request for earned paid sick time under this Section.

{1l An employer shall provide earned paid sick time for an employee's absence from the employee's scheduled work time if the employee has available earned paid sick time and makes a timely request for the use of earned paid sick time before their scheduled work time. An employer may not prevent an employee from using earned paid sick time for an unforeseen qualified absence that meets the requirements of this Section.

ill This Section does not require any employer to allow an employee to use earned paid sick time on more than eight (8) days in a year.

_(fil An employee who is rehired by an employer within six (6) months following separation from employment from that employer may use any earned paid sick time available to the employee at the time of the separation.

Requiring Employees to Find a Replacement to Work Scheduled Time Prohibited.

5


(e)

(f)

An employer shall not require an employee to find a replacement to cover the hours of earned paid sick time as a condition of using earned paid sick time. This Article does not prohibit an employer from allowing an employee to voluntarily exchange hours or voluntarily trade shifts with another employee or prohibit an employer from establishing incentives for employees, to voluntarily exchange hours or voluntarily trade shifts.

Donating Unused Earned Paid Sick Time. This Article does not prohibit an employer from permitting an employee to donate available earned paid sick time to another employee.

Employee Transfer. Neither the amount of earned paid sick time nor the right to use earned paid sick time shall be affected by an employee's transfer to a different facility, location, division or job position with the same employer.

Sec. 15-273. No Change to More Generous Sick Leave Policies.

An employer may provide paid leave benefits to its employees that exceed the requirements of this Article. This Article does not require an employer who makes paid time off available to an employee under conditions that meet the purpose, accrual, yearly cap, and usage requirements of this Article to provide additional earned paid sick time to that employee.

This Article does not require an employer to provide additional earned paid sick time to an employee if the employee has used paid time off that meets the requirements of this Article for a purpose not specified in Section 15-272.

This Article does not prohibit an employer from granting earned paid sick time to an employee prior to accrual by the employee.

Sec.15-274. Notice, Recordkeeping, and Signage Requirements.

Monthly Notice to Employee. On no less than a monthly basis, an employer shall provide electronically or in writing to each employee a statement showing the amount of the employee's available earned paid sick time. This Section does not create a new requirement for certified payroll.

Notice in Employee Handbook. An employer who provides an employee handbook to its employees must include a notice of an employee's rights and remedies under this Article in that handbook.

Recordkeeping. For the period required for maintenance of records under Title 29, Section 5 l 6(a) of the Code of Federal Regulations, an employer shall maintain records establishing the amount of earned paid sick time

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accrued and used by each employee.

{ill_ Posting of Signs. If the Director makes such signage publicly available on the Department's website, an employer shall display a sign describing the requirements of this Article in a conspicuous place or places where notices to employees are customarily posted. The Director has the authority to prescribe the size, content, and posting location of signs required under this Section. The signs displayed under this Section shall be in English and other languages, as determined by the Director.

Sec. 15-275. Retaliation Prohibited.

An employer may not transfer, demote, discharge, suspend, reduce hours or directly threaten these actions against an employee because that employee requests or uses earned paid sick time, reports or attempts to report a violation of this Article, participates or attempts to participate in an investigation or proceeding under this Article, or otherwise exercises any rights afforded by this Article.

Sec. 15-276. Investigations of Complaints.

ill An employee may file a complaint with the Department and the Department may investigate complaints, including anonymous complaints alleging a violation of this Article.

ili} A complaint alleging a violation of this Article must be filed with the Department by or on behalf of an aggrieved employee within two (2) years from the date of the violation .

.(u An employer shall timely provide relevant information and testimony when requested by the Department for the purposes of determining compliance with this Article. Relevant information and testimony includes, and is limited to, only the information necessary to determine whether a violation of this Article has occurred.

{ill_ The Department may inform employees at a worksite of any investigation of a complaint at that worksite alleging a violation of this Article.

Sec.15-277. Enforcement.

The Department has the authority to enforce the provisions of this Article.

Sec.15-278. Violation(s); Civil Penalties; Voluntary Compliance.

ill Civil Penalty. The Department may impose a civil penalty in an amount not to exceed five hundred dollars ($500.00) per violation of this Article. Each violation of a particular section or subsection of this Article

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constitutes a separate offense. If the Department finds after investigation of a timely complaint that a violation of this Article has occurred an employer shall receive written notice of the violation and the civil penalty assessed, if any. Such written notice is presumed to have been received on the fifth day after the notice is mailed .

.(h.l Voluntary Compliance. If the Department finds after investigation of a timely complaint that a violation of this Article has occurred, the Department may seek voluntary compliance from the employer to remedy any violation of this Article before collecting any civil penalty. If voluntary compliance is not achieved within ten (10) business days following the employer's receipt of the written violation notice, the employer shall be liable for any assessed civil penalty.

(fl For a violation of this Article that occurs after the effective date of the ordinance from which this Article derives but before April 1, 2020, the Department may issue a notice to the employer that a civil penalty may be assessed for a violation that occurs on or after April 1, 2020. Provided, that a civil penalty for a violation of Section 15-275 (Retaliation Prohibited) may be assessed anytime after the effective date of the enabling ordinance.

@ This Section does not create a criminal offense.

Sec. 15-279. Annual Report.

The Director may publish an annual report regarding implementation and enforcement of this Article including, without limitation, information about the number and nature of complaints reported, investigations undertaken, specific violations found, compliance achieved, and penalties assessed in the prior year, information about the the industries and occupations with high rates of complaints and violations, and a discussion of this Article's impact on employers and employees. This report may also include the Director's recommendations for improvements to this Article.

Sec. 15-280. Effective Date.

This Article shall become effective on August l, 2019 except as provided in this Section.

Delayed implementation for very small employers. This Article shall become effective on August 1, 2021 for employers having no more than five (5) employees at any time in the preceding twelve (12) months.

SECTION 3. The Director of the San Antonio Metropolitan Health District, in consultation and collaboration with the City Manager, as appropriate, may design and provide a multilingual public education campaign to inform employers and employees of the requirements of this Ordinance, such as creating a website with best practices for employers and an educational outreach strategy to inform

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employees and City residents of their rights under this Article.

SECTION 4. The Director of Finance, City of San Antonio, may determine where funds generated by this Ordinance shall be deposited. Wherever possible, funds generated by this Ordinance shall be used to implement and carry out the provisions of this Ordinance.

SECTION 5. The Director of Finance may, subject to concurrence by the City Manager or the City Manager's designee, correct allocations to specific SAP Fund Numbers, SAP Project Definitions, SAP WBS Elements, SAP Internal Orders, SAP Fund Centers, SAP Cost Centers, SAP Functional Areas, SAP Funds Reservation Document Numbers, and SAP GL Accounts as necessary to carry out the purpose of this Ordinance.

SECTION 6. Should any Article, Section, Part, Paragraph, Sentence, Phrase, Clause, or Word of this Ordinance for any reason be held illegal, inoperative, or invalid, or if any exception to or limitation upon any general provision in this Ordinance be held to be unconstitutional or invalid or ineffective, the remainder shall, nevertheless, stand effective and valid as if it had been enacted and ordained without the portion held to be unconstitutional or invalid or ineffective.

SECTION7. No other provision of the City Code is amended by this Ordinance. All other provisions remain in effect.

SECTION 8. The City Clerk for the City of San Antonio may publish notice of this Ordinance in a newspaper published in the City of San Antonio, Texas, as required by Article 2, Section 17 of the City Charter of San Antonio, Texas.

SECTION 9. The publishers of the City Code of San Antonio are authorized to amend the City Code to reflect the changes adopted in this Ordinance, to correct typographical errors and to index, format and number paragraphs to conform to the existing code.

SECTION 10. Except as provided in Section 2, this Ordinance is effective January 1, 2019.

PASSED AND APPROVED on this the 16th day of August, 2018.

Ron Nirenberg

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