Sick Day Protests

Elementary school teachers in Glendale, Arizona have planned a sick out today to protest their low pay, according to news reports.  Calling out sick will be easy enough for the teachers. Arizona’s recently enacted PSL law, like all others, adopts a “don’t ask, don’t tell” approach to call-outs. The employee need not tell the employer anything beyond “I am sick and cannot come to work” and the employer may not ask for any information beyond that.  According to one report, however, some teachers may spend their sick day protesting at the Capital, which may cause some to question whether they are using that sick day for an authorized purpose.

The Glendale teachers are not alone in  calling out sick as a means of protest. Teachers in Prince George’s County, Maryland had planned a system-wide sick out for this past Monday to protest some central office employees receiving “secret” wage increases, according to reports. Ultimately, the teachers decided not to have their system-wide sick out though some classes in some schools were cancelled due to teacher absences. Instead of the general sick-out, teachers favored a “work to rule”protest.

Both of these situations illustrate how far we have come from the justification for sick days—that an employee should not have to choose between his/her or a family member’s health and a paycheck. Apparently, an  employee should not have to choose between a protest and a paycheck either!

New Jersey May Become Paid Sick Leave State Number Ten

With a new Democratic Governor who supports a paid sick leave law and solid Democratic majorities in both legislative chambers, New Jersey is poised to become the tenth state to enact a paid sick leave law.

Tonight, the Assembly Labor Committee will hold a hearing on the Assembly’s paid sick leave bill (A1827).  The bill has the typical PSL architecture: employers must allow employees to accrue PSL at the rate of one hour for every 30 hours worked, to a maximum of 40 hours annually for employers with fewer than ten employees and up to 72 hours annually for larger employers. If enacted, it would be effective 120 days after enactment


Thirteen Garden State municipalities already have PSL ordinances. The pending House bill would not preempt those ordinances. A similar bill pending in the Senate would not preempt the ordinances that have already been passed but would preempt any future  ordinances .

While it is always a challenge to handicap the likelihood of a bill’s passing,  the stars seem aligned for a PSL bill to pass in New Jersey.  Democrats have a 25-15 majority in the Senate and 53-26 majority in the General Assembly. As noted above, Governor Phil Murphy, sworn in this past January,  has said he supports PSL statewide. Of the states that have enacted a PSL law,  all but one were blue states during the 2016 presidential election (Arizona being the only red state). During the last presidential election, 55.5% of New Jersey voters cast their ballots for Secretary Hillary R. Clinton.

Thus far in 2018, Maryland and Austin, TX have enacted PSL laws. Last year, Rhode Island was the only jurisdiction to pass a PSL law.

A Paid Sick Leave Revival in Westchester County, New York

The Westchester County Board of Legislators is considering a PSL bill that is substantially similar to the bill introduced but not passed last year. The proposed Earned Sick Leave Law has the typical PSL architecture: employees will accrue one hour of sick time for every 30 hours worked and may earn and use up to 40 hours in a year for itemized reasons. For employees of employers with at least 5 employees, the earned time is paid.

The bill was referred to the Committee on Labor & Housing, which held an “informational meeting” on February 26. According to the minutes of that meeting, fundamental questions were raised about the bill including: whether the County has the authority to enact it or whether it is preempted by state law; how the bill will be enforced since the County does not have a labor department; and whether the bill’s provisions concerning collective bargaining agreements are enforceable without approval of the unions, presumably those representing County employees.

The County may also want to review the statements in the bill’s preamble about its benefits to employers. The preamble states that “paid sick time is good for a company’s bottom line” because fewer sick employees would come to work, thereby increasing productivity, and that it would reduce turnover.

The preamble of the New York City Earned Sick Time Act included similar statements. A recent study of the first two years of that law reports that the purported benefits to employers from that law have not materialized. The study, “No Big Deal: The Impact of New York City’s Paid Sick Days Law on Employers.” was done by the Center for Economic and Policy Research of The City University of New York Continue reading

Austin Paid Sick Leave Law is Weird

When a draft PSL ordinance was first introduced in Austin, I posted that it was not faithful to the city’s slogan to “Keep Austin Weird” because it had the same architecture as every other PSL law in the country. Last week, the City Council enacted an amended PSL law. The enacted version heeded the slogan’s injunction. It’s weird.

It’s weird because it allows an employer to limit the number of calendar days in a year on which an employee can use accrued PSL time.  It states: “The Chapter does not require any employer to allow an employee to utilize earned sick time on more than 8 calendar days in a given calendar year.”


As a result, if an employer incorporates the 8 day cap into its PSL policy, an employee can only use as much accrued PSL time as needed during 8 calendar days, even if the employee has more accrued time available.

Assume an employee has the law’s 64 hour maximum accrual available. If that employee needs eight, eight-hour days of PSL time in a year, the employee would be able to use all of that maximum accrual. However, many uses of PSL do not require a full day’s absence, such as medical appointments. If the employee has a PSL need on any (or some or all) of those 8 calendar days that requires less than a full day of absence, the employee would not be able to use all of that maximum accrual. For example, if the employee had weekly physical therapy sessions, each requiring a three-hour absence, the employee would only be able to use 24 of that 64 hour accrual that year!

No other PSL law in the country has this “calendar day” limitation. It’s weird.

Why Do Paid Sick Leave Laws Shortchange Union Employees?

Help me understand why some paid sick leave laws do not guarantee union-represented employees the same paid sick leave benefit guaranteed non-union employees. PSL proponents recite the mantra that an employee should not have to choose between his or her health, or a family member’s health, and a paycheck. Yet, many PSL laws guarantee that non-union employees will not need to make that choice, but do not make that same guarantee to union members. This is especially vexing given that labor leaders advocate strongly for PSL laws.

Take Philadelphia. Its PSL law does not even apply to employees covered by a collective bargaining agreement. PSL laws in Arizona, Maryland, Cook County, Chicago and Seattle allow unions and employers to waive employees’ PSL rights in their labor agreement.

Other jurisdictions allow PSL waivers as well:

  • In the District of Columbia, the labor contract can reduce the number of sick days bargaining unit employees receive to no less the three. The law allows employees of employers with at least 100 employees to accrue up to seven days, and employees of employers with 25 to 99 employees up to five.
  • In New York City, the labor contract can eliminate the PSL benefits for bargaining unit employees if it requires premium rates for Sunday work or has some other benefit “comparable” to paid leave. There is no requirement that an employee ever have the opportunity to work on Sunday.
  • The California law allows a labor contract to waive employees’ PSL rights if it has a provision for paid sick days, final and binding arbitration of disputes relating to those sick pay provisions, has premium wage rates for all overtime hours worked, and has regular hourly rates of pay at least 30% higher than the state minimum rate.
  • In Austin, the most recent PSL law, unions and employers can agree to a reduced cap of earned sick time. The law allows employers to have an annual cap of 48 or 64 hours, depending on the employer’s size.


Some may surmise that a union would not agree to a PSL benefit less than that in the law. If that were so, the waiver language would be superfluous and there would be no need for labor to advocate for it. Also, anyone who has even negotiated a labor contract—and I have negotiated many—knows that collective bargaining is sausage-making at its finest. It makes legislative sausage-making look like the minor leagues.

Help me understand. I have posted that entreaty about PSL waivers before (see here, here and here).




Austin Plants Paid Sick Leave Flag in the South

In the wee hours of this morning, the Austin City Council passed a paid sick leave ordinance, the first jurisdiction in the South to ever do so.  It is effective October 1, 2018 for employers with more than five employees. For smaller employers, it is effective October 1, 2020.

That the ordinance passed should come as no surprise. As we have seen, a jurisdiction’s “blue” political status increases the chances that a PSL will pass. Travis County, of which Austin is the seat, is a deep blue enclave in the red sea of Texas. Two-thirds of Travis County voters voted for Secretary Clinton in the 2016 election.


The City Council passed an amended version of the January 19 draft ordinance. It requires private sector employers with more than 15 employees to provide employees who work at least 80 hours within the city in a calendar year to accrue PSL at the rate of one hour for every 30 hours worked, up to 64 hours annually. The yearly accrual cap for employers with up to 15 employees is 48 hours annually. The amendment states that an employer may restrict an employee’s use of accrued time during the employee’s first 60 days of employment “if the employer establishes that the employee’s term of employment is at least one year.”  It is unclear, at least to me, whether an employer can impose a 60 day waiting period on at-will employees.

Unused sick time is carried over to the following year although an employer may frontload the yearly cap and avoid carrying over unused time. An employer may cap annual usage at “8 calendar days” in a calendar year.

An employee nay use accrued time for the employee’s own or a family member’s illness, injury, health condition or preventive care or for an absence related to domestic abuse, sexual assault or stalking involving the employee or a family member.

The amended ordinance adds a safe harbor provision stating that an employer that offers paid time off that meets the “accrual, purpose and usage” requirements of the ordinance need not provide additional sick time.

Enforcement of the ordinance is through with the City of Austin Equal Employment Opportunity/Fair Housing Office.

Now that Austin has passed this ordinance, the next obvious question is whether Texas will pass a preemption law banning political subdivisions from enacting local PSL laws, effectively negating the Austin ordinance. A state representative from Austin has already stated his intent to pursue that strategy., according to a report.  On to Round Two?


Austin Paid Sick Leave Showdown Begins Today

Round One in the Austin paid sick leave legislative battle begins at today’s City Council meeting. Agenda item #49 asks the Council to “approve an ordinance establishing earned sick time for private employers, creating a civil penalty, and creating an offense.” Just a hunch, but I suspect the debate will be intense.

The draft ordinance would allow private sector employees who work at least 80 hours in a calendar year within the city to accrue PSL at the rate of one hour for every 30 hours worked, to a maximum accrual of 64 hours annually. Accrued time may be used for the employee’s own or a family member’s illness, injury, health condition or preventive care or for an absence related to domestic abuse, sexual assault or stalking involving the employee or a family member.


Proponents want the proposed ordinance approved, as is. However, another council member intends to propose a substitute ordinance narrowing the paid sick leave benefit, according to one report.

If the City Council approves a PSL ordinance, the next round is likely to be at the state legislature.  An Austin state representative predicted that the state would react to any Austin PSL ordinance by enacting a law preempting local PSL laws, according to that report.

A report by the Institute for Women’s Policy Research projected that the ordinance would save employers more than $38 million by reducing turnover and flu contagion at the workplace. More than $37 million of those savings comes from a projected 5.2% reduction in the employee turnover rate, according to the report.

The turnover rate projection got my attention because a September 2016 study of the first two years of the New York City Earned Sick Time Act reported that “[v]irtually no employers reported any change in turnover” as a result of that law. Concerning contagion caused by sick employees reporting to work, the study found that “90 percent of employer respondents reported no change in the number of employees coming to work sick, with equal numbers (five percent) reporting a decrease and an increase.” That study, entitled “No Big Deal: The Impact of New York City’s Paid Sick Days Law on Employers,” was done by the Center for Economic and Policy Research of The City University of New York.

Reconciling the projected significant savings to Austin employers with the absence of any savings to New York City employers is obviously a challenge. As my readers know, I am not opposed to paid sick days. The challenge is that we have a welter of often conflicting paid sick leave laws. The compliance challenge for multi-location employers is beyond significant. To the extent the projected benefits to employers should make the effort worthwhile, the benefits are elusive at best, and perhaps non-existent, as in New York City.