Sick of it

Rob Bartlett

Members of Organize Now and Citizens for a Greater Orange County make some noise June 30 in downtown Orlando.

On June 28, while all eyes were on the Supreme Court decision on President Barack Obama's Affordable Care Act – most notably its effects on small businesses, states' rights and the individual mandate – a ragtag coalition of local activists was keeping its focus on a different side of the health-care discussion: the almost silent majority of low-wage earners, many of whom aren't allowed to take sick time off from work, whether they have health coverage or not. According to 2010 census estimates, only 46 percent of Orange County workers receive earned (or paid) sick time at their jobs. In fact, the numbers are probably worse than that, says Organize Now Executive Director Stephanie Porta.

"We think it's actually higher, because we know that in places that provide or claim they provide earned sick time, that is used against workers if they take a sick day off," she says. In other words, our region, which is driven by a service economy, is not necessarily interested in serving those who do the labor that keeps the money flowing. Porta and others are pushing to get a question on the November ballot that would give employees of many Orange County businesses the basic right to call out sick, get paid for it (after they've earned the time) and not fear losing their jobs. The initiative also seeks to provide time off to care for loved ones, including all family members and domestic partners.

The initiative comes in sharp contrast to Florida Gov. Rick Scott's one-stop shop take on job growth: less regulation for businesses coupled with more financial incentives. In March, the governor signed an economic development package into law that would provide more than $1 billion in tax relief and reduce regulatory oversight from state agencies for businesses willing to make the leap to set up shop in the Sunshine State. But along with the anticipated business growth in the state comes the fear that more businesses – many of which are all too willing to cut corners to make a buck – will take advantage of the fact that the state doesn't offer enough protections for its workforce. That's the situation that Porta – along with others comprising Organize Now parent group Citizens for a Greater Orange County – are trying to prevent.

The earned sick-time initiative poses a simple question to voters: "Shall Orange County adopt an ordinance providing that employees of businesses in Orange County earn up to 56 hours of sick time each year unless the business provides more – with pay required only in businesses with 15 or more employees as defined – to seek medical care, recover from illness/injury, care for a family member as defined, or use when necessary during a public health emergency, with such ordinance enforceable in court?"

It may not seem like a lot to ask, but given the strict time limit to make the ballot (more than 43,000 signatures are required by the middle of this month) and the expected industry pushback on the issue, the battle is massive. Porta insists, however, that fairness will prevail. "According to our polls, Republicans support this as well. Democrats support it more. Independents are clearly in favor of it, too," she says. "Especially when you get into a lot of religious communities, people see it as they shouldn't have to choose between their job and their family."

It's a familiar refrain for those working in service jobs: "Either you come in today, or you don't have a job." However, the federal Family and Medical Leave Act of 1993 mandates 12 weeks of unpaid leave  to employees working in companies that employ more than 50 people without fear of reprisal, but according to the nonpartisan Urban Institute, that law – which does not mandate paid leave in any jurisdiction – skews in favor of higher wage earners and men. A 2002 study by the Urban Institute found that 76.2 percent of female working parents aged 18 to 54 received paid leave, while 83.5 percent of male working parents received the same. Likewise, the closer the income of parents in relation to the poverty line, the less likely they are to see any paid leave. Among those who were living below the 100 percent level of poverty in 2002, only 45 percent reported any access to paid leave. Those who need it most are least likely to receive it.

In December 2009, then-22-year-old Brendon Rivard was moonlighting as a cook for Friendly Confines at Waterford Lakes (he was a full-time student at the University of Central Florida and a substitute teacher by day) when he came down with a throat infection. He tried to call in sick.

"They said you can either come in tonight or you don't have a job," he recalls.

Rivard did go into work, where he trudged through a five-hour shift, even coughing up an aspirin that he was trying to swallow to allay the pain. He ended up in the emergency room.

"It think it's just they know they have control," he says of his bosses. "They know they have the power in the situation."

Until about a year ago, 27-year-old Maria McCluskey was a manager at Dillard's. During the busy holiday season, she had a gallbladder attack and knew that she couldn't work. Her doctor recommended that she take a full week off for recovery.

"I went back to work the next day at 9 a.m., not 100 percent, not feeling so hot," she says, adding that because it was an internal injury, she didn't look sick. "Had I decided to follow the doctor's orders, I would have been out of a job."

Garrett Poulin, 43, has worked as a server in the restaurant industry for more than two decades, though he won't discuss his current employer on the record for fear of losing his job. He's seen this all before.

"Earned sick time just does not exist in our profession," he says. "You learn by watching your friends and watching yourself. The truth of the matter is you go into work sick. And what you hope is going to happen is that you're so sick – and you've already prepped the line, delivered the food, scooped out the ice – that your boss sends you home early.

"The issue I have is the fact that you cannot discriminate against a person who is ill," he adds, meaning that though employers may take issue with an employee's integrity, that shouldn't come into play when the person is legitimately sick. "That's when people are really scared. [The companies] don't make decisions that are necessarily good for the workplace. Being afraid and being poor is a fact of life for a lot of people in Orlando."

Last month, the Food Chain Workers Alliance released a report that found that only 13.5 percent of U.S. workers in food service earn a livable wage (that includes grocery store employees, farm workers and servers, among others), and that more than half of all workers in the food industry do go to work sick because of financial insecurity. The executive director of the alliance, Joann Lo, told NPR food blog The Salt last month that the implications of these findings were broader than the swath of impoverished employees polled. "I think so few food employers offer benefits like paid sick days because they think it will cost them money and they will lose profit," she said. "I don't think they're understanding that when food workers go to work sick, they're getting co-workers sick, and they're getting consumers sick. It's impacting the safety of food." The same blog reports that, according the Centers for Disease Control, 20 percent of food-borne illness outbreaks are linked to sick workers. In Central Florida, the scope of the problem expands when you consider the public interactions of unwell theme park employees (Porta says she has heard stories from both Disney and SeaWorld workers) and hospitality staff. "A lot of our youth are in part-time jobs and unfortunately a lot of the business owners don't take the youth seriously," she says. "'Well, they have a hangover,' and stuff like that is common."

The local earned sick-time movement is part of a national campaign to push paid-leave ordinances and legislation protecting and improving the rights of low-wage earners. The first such ordinance was passed in San Francisco in 2007; that has become the template for earned sick-time ordinance efforts like the one in Orange County. A survey conducted by the Institute for Women's Policy Research in 2011 found that the San Francisco ordinance was "functioning well." Among the institute's findings about workers: People with paid sick days were less likely to use them all; minority workers saw the greatest positive impact; parents who were able to stay home with a sick child were more than 20 percent less likely to send said child to school sick with a contagious disease. Perhaps more importantly, though, six out of seven businesses reported no detriment to profitability, and only one-sixth had to overhaul their sick-time policies. Two-thirds of employers supported the measure after it was enacted.

According to the National Partnership for Women & Families, similar measures are being actively pursued in 20 states and cities. In 2011, Connecticut was the first to enact a statewide paid sick-day law.

In Orange County, the stakes are high. If the group succeeds in Central Florida, it will be the first such ordinance in the South to pass, something Porta hopes will influence other communities to consider the issue – in a similar way to the influence of Orlando's groundbreaking passage of a domestic-partnership registry. Organize Now and Citizens for a Greater Orange County initially set out to push the ordinance through a city vote in Orlando, but because of election rules presented to them by Orange County Supervisor of Elections Bill Cowles, they switched to a countywide strategy last month.

That strategy can be a little confusing, according to Cowles, who is struggling to keep up with the fast-approaching primary and general election season.

"They need more than 43,000 in legitimate, verified signatures to even take it to the Orange County Board of County Commissioners," he says. "The [county] charter says, interestingly enough, that the BCC can accept the petitions and vote on the ordinance or they can vote to send it to the voters and let the voters decide [in November]."

But Cowles also says that the sheer size of the ballot this year – three separate ballots for 650,000 voters – could make things difficult. Also, he's never seen a grass-roots ballot campaign succeed.

Regardless, the campaign moves on. As of June 27, the campaign has presented 26,574 petitions, though not all have been verified yet. Porta says that the group has employed 70 people to knock on doors and attend events, each receiving an average of $11 an hour (after a $9-an-hour probationary period). And, yes, they do earn sick time.

The initiative has received public endorsements from a broad swath of institutions such as Equality Florida and the NAACP. So far, according to Porta, the response has been relatively positive from both city and county officials (the group has met with Orange County commissioners Scott Boyd and Ted Edwards), though she doesn't expect the county commissioners to pass the ordinance outright.

"The reality is, we're not asking them to support this issue, because it's up to the voters," she says. "But they have to make the vote to put it on the ballot. … I don't think they're taking us seriously, honestly. I don't think they think it's going to happen, so I don't think they're putting any effort into thinking about it."

Who will be thinking about it, she suspects, are industry leaders such as Orlando-based Darden Restaurants, parent company of Red Lobster and the Olive Garden, and lobbying groups like the National Restaurant Association, the Chamber of Commerce, the Florida Retail Federation and the Florida Restaurant and Lodging Association, to name a few.

Though the Florida Retail Federation has yet to take a "formal position" on the ballot campaign, the organization's director of communications, John Fleming, is already ringing the bells of opposition.

"We would definitely be in a position to educate as to what some of the effects would be. I can predict that there would be a cost to employers. … A lot of businesses have had to cut their expenses just to provide," he says.

Meanwhile, Sue Hensley, senior vice president of public affairs communications for the National Restaurant Association, directed inquiries to the organization's local affiliate, the Florida Restaurant and Lodging Association. That group's communications representative, Lauren Searcy, at first told us, "We've been talking about it all week." When pressed for a position, she later said this: "Typically we would coordinate with the National Restaurant Association. We will continue to monitor the situation, but we are not ready to take a position on it."

But positions have been taken by industry leaders.

"Employees who are sick should absolutely let their employer know and discuss options on scheduling," Scott DeFife, executive vice president for policy and government affairs at the National Restaurant Association, told NPR in an email. "Restaurants typically offer flexible work schedules and hours that best meet the needs of their workplace and their employees, with the ability to switch or pick up shifts."

And in a December 2011 op-ed for CNN's website, Darden Restaurants CEO Clarence Otis Jr. said he felt maligned by pro-employee policies (including the Affordable Care Act), saying, "The list also includes measures such as new mandatory paid-leave provisions that require us to change the way we accommodate employees who need to take time off when they are ill and even more unrealistic requirements regarding employee meal and rest breaks that, in California, for example, force our employees to take breaks in the middle of serving lunch or dinner." Darden, it should be noted, repeatedly tops the list of employee-offending restaurants in the national earned sick-time campaigns. Calls to Darden for comment on this issue were not returned as of press time.

Porta says that she expects the opposition to heat up as the local initiative becomes more prevalent. Already, she says, Darden has been snooping around looking to see which candidates are accepting petitions at campaign events. Also, local progressive activist Lisa Murano confirms that she's received a phone poll on the issue from a Texas area code that identified the poll as coming from Voter Consumer Research. The questions were largely skewed toward employer interests, she says.

But for Porta, the opposition isn't so much of a threat. She hopes to sit down with business interests and lay out the actual costs and intentions of implementation. There's nothing punitive in the ordinance beyond the employee's right to sue in a right-to-work state, for instance. She's just trying to level the playing field.

"There's this whole approach in Orlando," Porta says. "We want to build a city of people that want to live, work and play. This is a living standard. This is about how we are bettering our community at the end of the day and making sure that people are treated appropriately."

And just as we wind up our conversation at a popular local eatery, Porta looks up at our waiter and asks, "Do you get any kind of earned sick time? Can you call out?"

"We do not," our waiter grins, sheepishly. "No way."