Michigan Lame Duck Governor Inks Sick Leave Amendment 

Michigan lame duck GOP Governor Rick Snyder on Friday signed into law the bill amending the recently enacted PSL law,  putting the finishing touch on a two-step political ploy to have the legislature craft a PSL bill rather than have voters consider a bill crafted by PSL advocates. For the ploy to succeed, Governor Snyder needed to sign the bill before  December 31, his last day in office.  Governor-elect Gretchen Whitmer, a Democrat, takes office on January 1.

The legislature took the first step of the stratagem on September 5, 2018, when it passed the Earned Sick Time Act, which was slated to be presented to voters in November.  The second step was to amend that law, which it did within the past few weeks. The amendment renames the PSL bill the Paid Medical Leave Act.

The stratagem represents a classic illustration of Miles’ Law which, in brief, states that ‘where you stand depends on where you sit.’ (see further discussion of Miles’ Law here). PSL proponents have accused the legislature of gutting the Earned Sick Leave Law and undermining democracy, or worse. They have threatened to challenge in court the legislature’s authority to amend the initial law.  Proponents of the ploy argue that the Earned Sick Leave Law did not adequately consider or balance the interests of all constituencies, small business in particular and that the Paid Medical Leave Act does so.

The Paid Medical Leave Act makes many changes to the Earned Sick Time Act. Generally, by narrowing the definitions of employer, employee and family member, it reduces the number of employee eligible for the PSL benefit, which it also reduced.

Michigan is the eleventh state to enact a paid sick leave law.

 

Michigan Sick Leave Amendment Awaits Governor’s Signature

With just a few weeks to go before the demise of Michigan’s GOP-trifecta on December 31, Governor Rick Snyder’s signature is the last step needed to amend the recently passed Earned Sick Time Act. Both legislative chambers passed amendment bills this week and sent an enrolled bill to Governor Snyder yesterday morning.pen-33077_1280

Governor Snyder’s signature on the renamed Paid Medical Leave Act would be the culmination of a two-step legislative gambit during the last three months. The first step was to pass the Earned Sick Time Act, which was slated to be presented to the voters on November 6.  The legislature passed that bill on September 5, 2018.  The second step was to amend that law to make it more to the GOP’s liking. Passing the Earned Sick Time Act  facilitated amending it because a majority in each chamber is needed to amend a law enacted by the legislature while three-quarters vote in each chamber is needed to amend a law enacted through a ballot initiative.

Proponents of the Earned Sick Time Act claim the amended law guts it, or worse.  Proponents of the amendment argue that the amendment softens an expensive mandate to reduce its detrimental impact on businesses, especially small businesses.

The amendment bill makes many changes to the Earned Sick Time Act. Among them is a change to its scope, both of employers to whom the law would apply and of employees who would be eligible to accrue PSL. Under the amendment, only employers with at least fifty employees would need to provide paid sick leave. Employees exempt under the FLSA and employees who worked an average of less than 25 hours during the previous calendar year are not eligible to accrue PSL under the amended bill.

 

President George H.W. Bush and His Sledgehammer

As we mourn today the death of President George H.W. Bush, my thoughts turn to his sledgehammer.

President Bush signed the Americans with Disabilities Act on July 26, 1990.  The ADA was a major piece of civil rights legislation not only in this country but internationally. President Bush noted this in his statement when he signed the bill into law:

This historic act is the world’s first comprehensive declaration of equality for people with disabilities — the first. Its passage has made the United States the international leader on this human rights issue.

He emphasized the ADA’s significance by referencing the very founding of our country:

Three weeks ago, we celebrated our nation’s Independence Day. Today we’re here to rejoice in and celebrate another “independence day,” one that is long overdue. With today’s signing of the landmark Americans for Disabilities Act, every man, woman, and child with a disability can now pass through once-closed doors into a bright new era of equality, independence, and freedom.

He could have stopped with the American Revolution, but he pulled the rope on the freedom bell one more time:

Last year, we celebrated a victory of international freedom. Even the strongest person couldn’t scale the Berlin Wall to gain the elusive promise of independence that lay just beyond. And so, together we rejoiced when that barrier fell.

With the gravitas of the bill on the desk before him established, President Bush picked up his pen:

And now I sign legislation which takes a sledgehammer to another wall, one which has for too many generations separated Americans with disabilities from the freedom they could glimpse, but not grasp. Once again, we rejoice as this barrier falls for claiming together, we will not accept, we will not excuse, we will not tolerate discrimination in America.

Since the 90’s, I have given many speeches to clients and business organizations about their compliance obligations under the ADA. In my PowerPoint presentation, the first slide was often the sledgehammer quote from President Bush’s  signing statement.

President Bush and his sledgehammer. The sledgehammer lives on. President Bush, rest in peace.

 

 

Wilmette Opts In After Twice Opting Out of Cook County Sick Leave Ordinance

They were against it twice before they were for it. The Wilmette Village Board on Wednesday opted in to the Cook County Earned Sick Leave Ordinance. The Wilmette Board had opted out of it in June 2017 and again in June 2018.

The political change of heart comes three weeks after the November 6 advisory ballot initiative in which  nearly 90% of voters in municipalities that had opted out of the County law urged their municipality to enact a paid sick leave ordinance.

Earlier this year, before the November referendum, the villages of Northbrook and Western Springs opted in to the County PSL law after having initially opted out. Other municipalities are expected to revisit their opt out decision as well.

Approximately 80% of the County’s municipalities have opted out of the its Earned Sick Leave Ordinance.  My “nix list” is here.

Senate Amends Michigan Sick Leave as Political Clock Ticks

The Michigan Senate yesterday amended—PSL proponents would likely say gutted– the PSL law the state had passed less than three months ago. The Senate’s action was the second step of the “pass it, then amend it” PSL strategy the GOP-controlled legislature was pursuing when it passed the PSL law in September rather than let voters adopt it in November through a ballot initiative.  Had the voters adopted the initiative, the legislature would have needed a three-quarters vote in each chamber to amend it. Amending a legislative enactment requires a majority vote in each chamber.

The clock is ticking because if the  PSL law does not get amended by the end of 2018, the law will likely remain as it was enacted in September.  Here is why: for a few more weeks, through the end of 2018, Michigan has a GOP trifecta–a Republican Governor and GOP control of both houses of the legislature. Come January 1, 2019, Gretchen Whitmer, a Democrat, will become the governor. While the GOP maintained control of both chambers in the recent election, neither chamber will have the two-thirds majority that would be required to override the governor’s veto.

As for the substance of the Senate amendment passed yesterday, the changes are many. Among them are reducing the scope of employees eligible to accrue PSL. Under the amendment, exempt employees and those covered by a labor contract, among other categories of employees, would not be eligible to accrue PSL.

Stay tuned.

 

Austin Sick Time Ordinance Preempted, Appellate Court Rules

The Austin Earned Sick Time Ordinance is unconstitutional because it is preempted by the Texas Minimum Wage Act (TMWA), the Texas Court of Appeals, Third District, ruled on Friday. A state district court judge earlier this year said that the challenge to the Austin PSL ordinance had “the aroma of a good political blood fight,”

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The court’s ruling focused largely on whether the sick days required by the Austin ordinance were a “wage,” a term not defined in the TMWA. Relying on dictionary definitions to discern the “plain meaning” of that word, the court noted that the Austin Ordinance establishes a wage because it “increases the pay of those employees who use paid sick leave.”

The court explained that employees who use sick leave are paid a higher rate of pay for hours actually worked.  For example, the court noted, an hourly employee earning $10 per hour who works 15 hours per week for 50 weeks (750 hours total) will have earned $7500 for that work. If that same employee uses the 25 hours of sick leave earned during that period under the Austin ordinance, the employee’s hourly wage for hours worked would increase to $10.33.

The court concluded that since “the Ordinance increases the pay of those employees who use paid sick leave,” it is a “wage” under the TMWA and, for that reason, is preempted by that state law.

The court’s decision comes just a few days after a Texas  legislator pre-filed a bill to preempt local paid sick leave laws. My post on that pre-filing is here.

San Antonio is the only other Texas city to have enacted a PSL law. It is scheduled to be effective on August 1, 2019.

Paid Sick Leave Preemption Introduced in Texas

Yesterday was opening day of the pre-filing season in the Texas Legislature and one of the 400+ pre-filed bills would preempt municipalities from adopting or enforcing any ordinance requiring an employer to provide paid sick leave to an employee. House Bill 222 also voids any ordinance that requires an employer to provide paid sick leave, such as the Austin and San Antonio PSL ordinances.

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The legislative session opens on January 8, 2019. Given that Texas has a GOP trifecta—Governor Greg Abbott and Republican majorities in the House and Senate—the political stars seem aligned for this bill to have a good chance of passing. If enacted, the bill would be effective September 1, 2019.

That the bill was pre-filed comes as no surprise. The ink was barely dry on the Austin ordinance when state legislators promised to introduce a bill to preempt it. The Austin ordinance had been scheduled to go into effect on October 1, 2018 but its implementation has been enjoined pending the outcome of the litigation challenging its validity. The San Antonio ordinance is effective August 1, 2019.

The pending legal challenge to the Austin Ordinance argues that it is already preempted by the Texas Minimum Wage Law. The legislature’s passing this preemption bill would remove any doubt about that.

If enacted, House Bill 222 would make Texas a PSL preemption state, the 22nd such state according to my count.