A city lifeguard claims the city of St. Paul violated its own “Earned Sick and Safe Time” ordinance by failing to allow him and possibly hundreds of other seasonal, part-time workers to access their paid sick leave on demand.
In a class action lawsuit served to the city on Tuesday, Benjamin Smith says his supervisors never informed him he qualified for accrued sick leave in 2017 or 2018, despite a city ordinance requiring that employers citywide alert workers of St. Paul’s new sick leave regulations.
Smith’s civil complaint states there was no evidence of sick leave accrual on his pay stubs, or those of hundreds of other seasonal and part-time city employees.
According to his lawsuit, attempts to speak with supervisors about his unpaid sick leave were met with evasive, dismissive, misleading and intimidating responses, including being told that all seasonal employees had lost their accrued sick leave hours at the end of 2017.
In his lawsuit, Smith said he eventually discovered he had indeed been paid out for unused sick leave hours at the end of 2017, but he had no knowledge he was accruing them until he inquired in the summer of 2018. A supervisor then told him he was not allowed to use sick leave during the year, he said.
Smith, a high school student, is represented by his parents — attorneys with the St. Paul-based law firm of Wrobel and Smith. The 24-page lawsuit is scheduled to be filed with Ramsey County District Court and alleges eight civil claims, including multiple violations of the city’s Earned Sick and Safe Time ordinance and the Minnesota Whistleblower Act.
“We’re not looking to hurt the city,” said Mark Smith, the plaintiff’s father, noting he and his son made multiple efforts to resolve the situation without litigation. “We support the sick leave ordinance. It’s the lack of an appropriate response from the city that led to the lawsuit that was filed today. … The city, as an employer, needs to comply with its own ordinance.”
St. Paul City Attorney Lyndsey Olson said in a written statement Tuesday that “the city is currently in the process of reviewing the complaint. After becoming aware of this matter and prior to receiving the complaint, the city initiated an investigation which is still underway.”
‘A FULL INVESTIGATION OF ALL CITY DEPARTMENTS’
In the civil suit, Smith is asking for attorney’s fees, at least $50,000 in damages and “a full investigation and review of all city departments” to determine how many other city employees might have been left in the dark about the ordinance.
“The wording we put in the complaint was ‘hundreds’ based on the number of part-time and seasonal employees who work at the pools in the summer,” Mark Smith said. “It’s not just seasonal part-time (workers). We think it’s at least seasonal plus other part-timers.” City officials have said the impacted group could be limited to 80 Parks and Rec workers.
St. Paul City Council Member Kassim Busuri shared news of the lawsuit on Facebook.
“We heard from the Human Resources department last week … how 80 employees from the Parks department have been cheated out of their sick and vacation pay,” said Busuri, in the social media post. “They are working on trying to fix this problem. Most of these employees that were cheated are people of color. Let’s get to work and focus on what is important for the people of St. Paul.”
During a public rally at St. Paul City Hall last week, labor advocates criticized a series of fast food franchise operators for failing to abide by the city’s sick leave mandate at at least nine restaurants.
The city’s labor unit reported receiving 38 written and 15 oral complaints involving sick leave in 2018 alone, leading to some $4,200 in ordered restitution. During the rally, City Council Members Dai Thao and Rebecca Noecker called for greater education, outreach and enforcement of the sick leave mandate, including additional outreach personnel. The city has currently assigned one attorney to investigate complaints.
In the summer of 2018, Smith said he held off on filing a formal complaint with the city’s Labor Standards Unit — a division of the Human Rights and Equal Economic Opportunity Department — because two supervisors told him employees would be paid for their sick leave hours at the end of the calendar year.
“It was a conscious choice by Benjamin to wait and get paid his time,” said Mark Smith.
When he was not, he filed a complaint with the unit in February.
His complaint has yet to be resolved, but he claims he learned through co-workers in March that a supervisor had stated he would not be returning to lifeguard duty because he was “suing the city.” He showed up for training anyway.
Smith said that he needed to access sick leave in July 2018. When an immediate supervisor was unable to help him, he spoke to another supervisor, who asked him “how do you know about ESST,” a reference to the Earned Sick and Safe Time regulations that took effect in July 2017. The regulations — which are intended to guarantee an hour of paid sick leave for every 30 hours worked — were approved by the city council in September 2016 following months of public discussion.
In January 2016, the city council had joined then-St. Paul Mayor Chris Coleman in promising to extend sick leave benefits to all city employees within a year.
During the conversation with the Parks and Rec supervisor, Smith said the “supervisor advis(ed) that all aquatics employees had been paid all of their accrued ESST at the end of 2017 and that most other employees had lost all of their ESST at the end of the year,” according to the lawsuit. The supervisor stated that the “plaintiff could find his accrued sick and safe time on his pay stub and insist(ed) that plaintiff ‘look harder’ when plaintiff told him the stubs did not contain any ESST information.”
In addition, according to the lawsuit, the supervisor said that he had not accrued enough sick leave hours to cover a full shift, and “inform(ed) plaintiff that plaintiff had only earned 2.93 ESST hours and that ‘maybe if you worked more hours, you would have more ESST.'”
Smith claims the supervisor “demanded to know if plaintiff ‘was the one who had called downtown’ asking about sick and safe time.”
The suit states: “Plaintiff communicated with another supervisor/manager and was informed that employees could not access ESST during the course of the year, but that all earned hours would be paid out to employees at the end of the year.”