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.

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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.

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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.

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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.

Super Bowl Flu Hits Hawaii Correction Officers Hard, Yet Again

The Super Bowl Flu has hit Hawaii corrections officers hard the past few years. This year, 213 of 733 officers, almost 30%, called out sick on Super Bowl Sunday, according to a report citing the state Department of Public Safety. That number of call-outs is fewer than both last year, when 260 called out sick on Super Bowl Sunday, and 2016 when 230 called out sick for the big game. My post about the  2017 Super Bowl Flu outbreak is here.

Airline Group Challenges Washington Paid Sick Leave Act’s Application to Flight Crew

The Washington State Paid Sick Leave Act (WPSL) as applied to pilots and flight attendants is unconstitutional and preempted by the federal Airline Deregulation Act (ADA), according to a complaint filed last week in federal court by the Air Transport Association of America, doing business as Airlines For America (A4A), an association of airline carriers.  Complying with the various paid sick leave laws that could apply to flight crew will lead to “mass confusion.” Applying the WPSL to flight crew will lead to “delays, cancelled departures and, in some cases, closed bases of operations,” according to the complaint.

The WPSL law is unconstitutional because it violates both the “dormant” Commerce Clause and the Fourteenth Amendment, according to the complaint.  The Commerce Clause gives Congress authority to regulate interstate commerce. The dormant Commerce Clause is a misnomer since it not a clause at all. Rather, it is the concept that implicit in the affirmative grant of authority to Congress is an implicit restriction on the ability of state and local governments to impose an unreasonable burden on interstate commerce.

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The Fourteenth Amendment states: No state shall make or enforce any law which shall abridge the privileges or immunities of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law.” The complaint alleges that because “the bulk of the work done by A4A’s member airlines’ flight crews is wholly or mostly outside of Washington’s borders, the [WPSL] constitutes an extraterritorial application of Washington law in violation of the Fourteenth Amendment.”

The plaintiff also alleges that the ADA preempts the WPSL law because it relates to a “price, route or service of an air carrier,” because, for example, the WPSL “impedes A4A’s member airlines’ abilities to enforce attendance and reliability policies designed to ensure safe on-time and efficient operations.”

The plaintiff seeks a declaration that the WPSL law is unconstitutional and preempted by the ADA with regard to flight crew and an injunction prohibiting the Washington Department of Labor and Industries from enforcing the WPSL against member airlines.

Washington voters approved Initiative 1433—the WPSL law–in November 2016. It went into effect on January 1, 2018. A state court last year rejected claims brought by a cadre of business interests that the law violated the state constitution. My post on that decision is here.

Maryland Healthy Working Families Act: A PSL-4Step Analysis

The Maryland General Assembly last month overrode Governor Larry Hogan’s veto of the Healthy Working Families Act. Since the HWFA is effective in a few days, on February 11, it seems fitting and proper, as lawyers are wont to say, to post my 4Step analysis of that law.

The law requires the Commissioner of Labor and Industry to develop and post on its website (https://www.dllr.state.md.us/paidleave/) a model poster, notice, and sick and safe leave policy and to provide technical assistance to employers. As of this writing, the model documents have not yet been posted. The Commissioner also “may” adopt regulations necessary to carry out the HWFA.

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Here, I use the PSL-4Step framework to analyze the HWFA.

Step 1: Does it apply?

“Employer” includes state and local government units and “a person that acts directly or indirectly in the interest of another employer with an employee.”

“Employee” does not include an individual who

  • performs work under a contract of hire that is determined not to be covered employment under Labor and Employment, Section 8-205;
  • is not a covered employee under Labor and Employment, Section 9-222 (deals with real estate brokers and salespeople);
  • is under the age of 18 years before the beginning of the year;
  • is employed in the agriculture sector on an agricultural operation;
  • is employed by a temporary staffing agency which does not have day to day control over the work assignments and supervision of the individual while providing the temporary staffing services; or
  • is directly employed by an employment agency to provide part-time or temporary services to another person.

Also, the HWFA does not apply to an employee:

  • who regularly works less than 12 hours a week for an employer;
  • is in the construction industry but is not a janitor, a building cleaner, a building security officer, a concierge, a doorperson, a handyperson or a building superintendent and who is covered by a collective bargaining agreement in which the requirements of the HWFA law are expressly waived in clear and unambiguous terms;
  • who is “called to work by the employer on an as-needed basis in a health or human services industry, [who] can reject or accept the shift offered by the employee, is not guaranteed to be called on to work by the employer and is not employed by a temporary staffing agency.”

Also, the law does not affect any bona fide collective bargaining agreement entered into before June 1, 2017 for the duration of the contract term, excluding any extensions, options to extend, or renewals of the term of the original agreement.

Finally, if a unit of state or local government’s sick leave accrual and use requirements meet or exceed leave under the HWFA, employees of that unit who are part of the unit’s personnel system are subject to the unit’s laws, regulations, policies, and procedures providing for accrual and use of leave, grievances and disciplinary actions. Any employees in such unit not covered by the unit’s sick leave and accrual and use requirements are subject to the HWFA.

Step 2: The Benefit Continue reading

From Super Bowl Sunday to Paid Sick Leave Monday

How many employees at your company called out sick today? I suspect it’s many more than on a typical Monday. An estimated 13.9 million Americans will call out sick today, the day after the Super Bowl, according to a recent survey by the Workforce Institute at Kronos and Mucinex. About one in five employees have reported that they have called out sick the day after the Super Bowl, according to the survey.

It seems that many have declared Super Bowl Monday their own personal holiday. Paid sick leave laws enable these absences by making calling out a low to no-risk undertaking. “I am sick today. I cannot come to work” is all PSL laws require for an employee to get a Super Bowl pass from attendance policies.

pretzel-3093219_1920An employee who uses PSL time has no need to worry about cross-examination by the boss concerning the reason for the absence. PSL laws prohibit employers from asking or requiring any information about the condition for which PSL time is used.

No need for an employee who calls out to be concerned about a request for medical documentation either. PSL laws, generally, prohibit employers from requiring employees to produce medical documentation to substantiate the absence unless the employee has been out at least three days.

While every jurisdiction, I suspect, would proclaim that its PSL law does not sanction fraud and that an employer need not tolerate fraud ever, even on Super Bowl Monday, by requiring employers to take an employee’s word about the need for leave, and prohibiting further inquiry or substantiation of the need for leave, PSL laws are huge, perhaps insurmountable, obstacles for an employer wanting to investigate PSL fraud.

With so much absence on Super Bowl Monday, and lost productivity from those who manage to get to work, some have suggested making Super Bowl Monday a national holiday. That might make sense, After all, no employee should have to choose between recovering from Super Bowl festivities and a paycheck, should they?