San Antonio Sick and Safe Leave Law Enjoined

The PSL turbulence in Texas continues. A Bexar County judge today temporarily enjoined implementation of San Antonio’s Paid Sick and Safe Leave Ordinance. The Ordinance was to be effective on December 1, 2019.

The petitioners seeking the injunction were the State of Texas and a cadre of business interests.  Judge Peter Sakai  heard oral argument on the request for a temporary injunction two weeks ago and granted that request in a letter ruling today. The court ordered that a date certain for a trial on the merits be set as soon as possible.

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San Antonio’s efforts to enact a PSL ordinance have been challenged in litigation since July. The initial San Antonio Earned Paid Sick Leave Ordinance was to be effective August 1, 2019.  On July 15, a lawsuit was filed seeking to enjoin its implementation The lawsuit raised a myriad of constitutional claims including that it was preempted by the Texas Minimum Wage Act. The plaintiffs and defendants had agreed to postpone the ordinance’s implementation until December 1, 2019. In October, the City Council amended the ordinance and renamed in the Sick and Safe Leave Ordinance.  Today’s ruling temporarily enjoins implementation of the amended ordinance

In addition to San Antonio, Austin and Dallas have also enacted PSL ordinances. The PSL ordinance in Austin was enjoined a year ago.  The City of Austin has asked the Supreme Court of Texas to review that decision. There is also a legal challenge pending to the  Dallas PSL ordinance.

Paid Sick Leave Quarterly: 3Q 2019

The PSL turbulence in Texas garnered most of the PSL headlines in the third quarter. How that turbulence ends will determine the fate of PSL ordinances in Austin, Dallas and San Antonio. This quarterly summary includes:

Paid Sick Leave Laws Effective in Q3

Paid Sick Leave Laws Effective After Q3

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Paid Sick Leave Bills Introduced During Q3

  • In August, Bernalillo County Commissioners (NM) enacted an “any reason” leave law. The Employee Wellness Act applies to employers in the unincorporated limits of the County, which excludes the  City of Albuquerque. The County ordinance has the typical PSL architecture less the list of approved uses. In October, 2019, the Commissioners amended the law to include annual caps on paid leave accrued based on the size of the employer and removes the 90 day wait period to begin accruing leave. The  ordinance at the link above includes the amendments.

Paid Sick Leave Preemption Developments

Alabama:  The Eleventh Circuit Court of Appeals en banc will resolve the challenge to Alabama’s minimum wage and employment benefits preemption law. The Court heard oral argument on June 25, 2019. The Alabama Uniform Minimum Wage and Right-to-Work Act bars municipalities from requiring employers to provide employees wages or “employment benefits,” including leave, unless required by federal or state law. The plaintiffs brought various race-based challenges to the Act. In July 2018, a three-judge panel of the Eleventh Circuit affirmed the lower court’s dismissal of all claims except the “equal protection” constitutional claim. Marnika Lewis v.  State of Alabama et al. (11th Cir) (11th Cir. Case No.17-11009).

Paid Sick Leave Litigation

 Challenges to state PSL laws

Washington: A federal district court has rejected claims by an association of airline carriers that the  Washington State Paid Sick Leave Act (WPSL) as applied to flight crew was unconstitutional and preempted by the federal Airline Deregulation Act (ADA).  The plaintiff had claimed the WPSL violated the dormant Commerce Clause–the implicit restriction on a state or local government’s ability to unreasonably burden interstate commerce and the Fourteenth Amendment of the Constitution.  The plaintiff had also claimed the ADA preempts the WPSL law with regard to both flight crew and ground crew because they relate to a “price, route or service of an air carrier.” Air Transport Association of America, d/b/a Airlines For America v. The Washington Dep’t of Labor and Industries et al (W.D. WA. October 11, 2019).

Massachusetts : The same plaintiff-airline association in the Washington case also sued in Massachusetts, arguing that the Massachusetts Earned Sick Time Law (MESTL) as applied to flight crew is unconstitutional and preempted by the federal Airline Deregulation Act (ADA), Air Transport Association of America, d/b/a Airlines For America v. Maura Healey in her capacity as Attorney General of the Commonwealth of Massachusetts (D.MA, Case No. 1:18-cv-10651,  filed 04/04/18).

Michigan: The Michigan Supreme Court will wade into the clash involving the constitutionality of the state’s Paid Medical Leave Act, at least to decide whether to consider the substance of that clash. In response to requests by both legislative chambers for an advisory opinion on the legality of the recently enacted state PSL law, the court heard oral argument on July 17, 2019. The first of three questions listed in the Court’s Order concern whether it should exercise its discretion and issue the requested advisory opinion.

Challenges to local PSL laws

Austin, TX: In November 2018,  a Texas appellate court ruled that the Austin Earned Sick Time Ordinance is unconstitutional because it is preempted by the Texas Minimum Wage Act (TMWA). The City of Austin has asked the Texas Supreme Court to hear an appeal of that decision. The Austin PSL ordinance was to be effective on October 1, 2018 but its implementation has been enjoined pending the outcome of the litigation. If the court decides to hear the case, its decision will likely affect the Dallas and San Antonio PSL ordinances as well. City of Austin, Texas et al v. Texas Ass’n of Business et al  (TX SupCt No. 19-0025).

Dallas, TX: The Dallas City Council passed an Earned Paid Sick Time Ordinance in April. In July, the Texas Public Policy Foundation on behalf of two employers sued to enjoin its implementation and sought a preliminary injunction. The case is pending. ESI/Employee Solutions, LP et al v. City of Dallas et al (E.D.TX,  Case 4:19-cv-00570).Dallas has announced that it “will not enforce the Ordinance except for violations of the anti-retaliation provision, until April 1, 2020.”

San Antonio, TX: The original San Antonio Earned Paid Sick Leave Ordinance was to be effective August 1. On July 15, a cadre of business interests had filed a lawsuit seeking to enjoin implementation of the ordinance. The lawsuit raised a myriad of constitutional claims as well as the TMWA preemption claim. The plaintiffs and defendants had agreed to postpone the ordinance’s implementation date until December 1, 2019. On October 3, 2019, the San Antonio City Council amended its PSL law, now renamed the San Antonio Sick and Safe Leave Ordinance, which is scheduled to go into effect on December 1, 2019.  The lawsuit  had been stayed but remains pending.  Associated Builders & Contractors of South Texas et al v. City of San Antonio et al (Bexar County Court, 408th Judicial District; Cause No. 019CI13921).

New York City: American Airlines sued the NYC Department of Consumer Affairs alleging arguments similar to those raised in the Washington and Massachusetts cases described above. In addition, American alleges that the New York City Earned Safe and Sick Time Act as applied to its flight crews “violates the prohibition against extraterritorial application of local laws under New York” and is void for vagueness. American also alleges it complies with the PSL law for some of its ground crew because their collective bargaining agreement expressly waives the PSL law and provide a comparable benefits in the form of paid days off. American Airlines, Inc. v. NYC Dep’t of Consumer Affairs et al (E.D.N.Y. Case 1:19-cv-04424l, filed 08/01/19). The suit also seeks to enjoin NYC’s enforcement action filed July 24, 2019 against American at the Office of Administrative Trials and Hearings.

Pittsburgh: The Supreme Court of Pennsylvania held in July the City of Pittsburgh had authority to enact the Paid Sick Days Act. This opinion reverses a lower court opinion and frees the PSDA from the legal limbo it has been in since its enactment in 2015. The PSDA hews to the typical architecture of a PSL law. Employees of employers with at least fifteen employees accrue one hour of paid time for every 35 hours worked, to a maximum of 40 hours annually. Employees of smaller employers accrue up to 24 hours of unpaid sick time during the first year of the PSDA’s implementation and up to 24 hours of paid time subsequently.

Other Paid Sick Leave Developments To Watch

  • With primary campaign season in full swing, many of the candidates support some form of paid leave. Ballotopedia compiled the candidates’ statements about paid leave here.
  • Some states with PSL laws have enacted paid family and medical leave laws which, in effect, are a significant expansion of their PSL laws.  Eight states now offer paid family and medical leave: CA, CT, MA, NY, NJ, OR, RI, WA. .

Paid Leave Laws Shortchange Some Union-Represented Employees

I have posted often about union-represented employees being shortchanged by paid leave laws. See here, here and here.   This has always baffled me since unions have been staunch advocates of such laws. For my most recent On the Labor Front article, I analyzed the extent to which some paid leave laws shortchange union-represented employees and the legislative tactics used to achieve that result.

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I also sought, without success, to identify the reason union-represented employees come up short in the legislative drafting of these laws.  To me, it remains “a riddle wrapped in a mystery inside an enigma,” to borrow a phrase from Winston Churchill.

Here is a link to my On the Labor Front article.

I end with the same entreaty I have made in my prior posts on this topic:  help me understand!

 

Introduction to “On the Labor Front”

In addition to focusing on leave management issues for the past few decades, I have also negotiated many collective bargaining agreements and represented employers in other “traditional labor law” issues. Earlier this summer, legal publisher Wolters Kluwer, a global provider of professional information, software solutions and services, asked me to write a monthly article about a labor issue. “On the Labor Front” is the name of the column. Here is the link to my first article, which discusses a first in our country’s history: campaign employees in five presidential campaigns have chosen to be represented by a union.

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As unionized employers know, dealing with leave management issues within the confines of a collective bargaining agreement presents unique challenges. The intersection of leave management laws and collective bargaining agreements has been of great interest to me and will be addressed in upcoming On the Labor Front articles.

I hope you enjoy the article. As always, I welcome your comments.

Bernalillo County (NM) Passes “Any Reason” Leave Law

Bernalillo County Commissioners (NM) last night approved by a narrow margin an “any reason” leave law. The initial proposal was a paid sick leave bill but in June, after Maine and Nevada passed “any reason” leave laws, the Commissioners decided to  consider a broadened “any reason” proposal.

The Employee Wellness Act applies to employers in the unincorporated limits of the County, which excludes the  City of Albuquerque. The ordinance considered last night stated that it is effective July 1, 2020 though an ABQ Journal article noted that the ordinance is effective July 1, 2020.  We will need to see the effective date in the final version of the amended ordinance when it becomes available.

The County ordinance has the typical PSL architecture less the list of approved uses. Employees accrue PSL at the rate of one hour for every 32 hours worked to a maximum of 56 hours annually. At the meeting last night, the Commissioners agreed to phase into that 56 hour cap, according to the ABQ Journal. The maximum accrual in the first year of implementation is 24 hours; 40 hours in the second year; and 56 hours in the third year.

With Maine, Nevada and now Bernalillo County having passed  “any reason” leave laws, we may be seeing the end of PSL laws as we have known them and are evolving to what I will call PSL 2.0 laws, which are structurally similar to a PSL law less the limitations on the use of accrued time.

Pittsburgh Sick Leave Law Upheld

The Supreme Court of Pennsylvania held recently the City of Pittsburgh had authority to enact the Paid Sick Days Act. This opinion reverses a lower court opinion and frees the PSDA from the legal limbo it has been in since its enactment in 2015.

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The Court’s July 17 decision was based on the state’s Home Rule Charter Law which limits the City’s authority to regulate business “except as expressly provided by statutes…” Determining the scope of that business exception is a “vexing question,” the Court said but held that Pittsburgh has the right to protect the health and safety of its residents under various statutes and that the PSDA was an exercise of that right.

Enforcement of the PSDA had been enjoined pending the outcome of the legal challenge to it.  It is unclear when Pittsburgh will begin enforcing the PSDA and how it will deal with the fact that employers were supposed to have allowed employees to accrue and use sick leave for the past 3 1/2 years.

The PSDA hews to the typical architecture of a PSL law. Employees of employers with at least fifteen employees accrue one hour of paid time for every 35 hours worked, to a maximum of 40 hours annually. Employees of smaller employers accrue up to 24 hours of unpaid sick time during the first year of the PSDA’s implementation and up to 24 hours of paid time subsequently.

Sick Leave Turbulence in Texas Continues

More than a year ago, I posted about the paid sick leave turbulence in the Lone Star State. The turbulence lives on.

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Austin, San Antonio and Dallas have enacted PSL ordinances. Cadres of business interests have sued to enjoin each.

It started in Austin. Last November,  a Texas appellate court ruled that the Austin Earned Sick Time Ordinance is unconstitutional because it is preempted by the Texas Minimum Wage Act (TMWA). The City of Austin has asked the Texas Supreme Court to hear an appeal of that decision. The Austin PSL ordinance was to be effective on October 1, 2018 but its implementation has been enjoined pending the outcome of the litigation.

The San Antonio Earned Paid Sick Leave Ordinance was to be effective today, August 1. On July 15, a lawsuit was filed seeking to enjoin implementation of the ordinance. The lawsuit raised a myriad of constitutional claims as well as the TMWA preemption claim. The plaintiffs and defendants have agreed to postpone the ordinance’s implementation date until December 1, 2019.

The Dallas Earned Paid Sick Time Ordinance is also scheduled to be effective today. Two days ago, a cadre of business interests sued to enjoin its implementation.

Meanwhile, the Texas Legislature failed to enact a PSL preemption law this past session, which many had thought would make litigation unnecessary.  As of now, the viability of the three PSL ordinances lie with the judiciary.

More PSL turbulence to come in Texas before it settles down, I suspect.