Taking a Cruise While on FMLA  

Three Chicago police communication officers (PCOs) used the FMLA as the ticket for time off for a Caribbean cruise together, according to a recent report from the City of Chicago Office of Inspector General (OIG). Two of these PCO’s took a “combined ten cruises using sick leave and/or FMLA leave dating as far back as 2010,” according to the report. A fourth PCO took two FMLA Caribbean cruises. Three of the PCO’s have been discharged, one resigned.

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The three who cruised together had booked the cruise almost a year in advance and used intermittent FMLA leave “for at least a portion of the vacation,” according to the OIG report. The doctor of one of the cruisers had recommended the PCO be on bedrest during the time the PCO was on the cruise, according to the report. A second PCO submitted a doctor’s note indicating that he would be having a surgical procedure during the time the PCO went on the cruise, according to the report.  The OIG noted that “[w]hile on the cruise, the three PCOs consumed alcohol, went to numerous restaurants, attended night clubs, toured Caribbean islands, went Horseback riding, rode jet skis and even went on a ‘booze cruise.’”

That the FMLA is abused regularly is no secret. Just ask anyone who administers FMLA leaves. The FMLA does not protect those who abuse it but it facilitates abuse by limiting the information available to an employer concerning an employee’s absence. That is especially so when managing intermittent leave, which is one of the  most vexing leave management challenges.

Paid Sick Leave Quarterly: 1Q 2019

The vast and complex patchwork of PSL laws expanded in the first quarter of 2019. This summary includes:

  • Paid Sick Leave Laws Effective in Q1

    Paid Sick Leave Laws Effective After Q1

    Louvre Sculpture

    Paid Sick Leave Bills Introduced During Q1

    Paid Sick Leave Preemption Developments

    Alabama: Marnika Lewis v.  State of Alabama et al. (11th Cir) (Case No.17-11009)(11th Cir. July 25, 2018). The Eleventh Circuit Court of Appeals has decided to hear the challenge to Alabama’s minimum wage and employment benefits preemption law en banc, meaning that all of the Court’s judges will hear the case.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. It was passed the day after Birmingham increased the minimum wage within the city. The plaintiffs brought various race-based challenges to the Act, all of which were rejected by a federal district court last year. Last July, a three-judge panel of the Eleventh Circuit affirmed the dismissal of all claims except the “equal protection” constitutional claim, holding that the plaintiffs have plausibly alleged both that the Act “burdens black citizens more than white ones” and that  it was enacted with a discriminatory purpose.

    Texas: Two bills would bar political subdivisions from enacting various employment ordinances, including PSL laws. The bills would also void existing PSL ordinances, such as those in Austin and San Antonio. The Texas Senate passed those two bills on April 11, 2019.

    Paid Sick Leave Litigation

     Challenges to state PSL laws

    Massachusetts and Washington: The Massachusetts Earned Sick Time Law (MESTL) and Washington State Paid Sick Leave Act (WPSL) as applied to flight crew are unconstitutional and preempted by the federal Airline Deregulation Act (ADA), according to complaints filed by the Air Transport Association of America, an association of airline carriers.  The plaintiff claims these state laws violate 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 also alleges that the ADA preempts the state PSL laws with regard to both flight crew and ground crew because they relate to a “price, route or service of an air carrier.”  In the Massachusetts case, the plaintiff filed a motion for summary judgment on November 30, 2018, which remains pending. 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)(complaint filed 04/04/18)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)(complaint filed 02/06/18).

    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 scheduled a hearing on July 17, 2019. The first of three questions listed in the Court’s Order is whether it should exercise its discretion and issue the requested advisory opinion.

    Challenges to local PSL laws

    Pittsburgh, PA: The Supreme Court of Pennsylvania will decide whether Pittsburgh had authority to enact the Sick Days Act which it adopted three years ago. Last year, an appellate court affirmed a lower court decision that the City did not have the authority to enact it and invalidated the law. The appeal will focus on an interpretation of the Home Rule Charter Law, which limits the City’s authority to regulate business “except as expressly provided by statutes….”  Oral argument in the Supreme Court occurred on October 23, 2018.  Pennsylvania Restaurant and Lodging Ass’n v. City of Pittsburgh and Service Employees Int’l Union, Local 32 BJ. (Pa. Supreme Court, 57 WAP 2017).

    Austin, TX: 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 in November.  The court’s ruling focused largely on its determination that the sick days required by the ordinance were a “wage.” The Austin PSL ordinance was to be effective on October 1, 2018 but its implementation had been enjoined pending the outcome of the litigation. The City of Austin, reportedly, intends to appeal to the Texas Supreme Court. Texas Ass’n of Business et al v City of Austin, Texas et al (TX Ct of Appeals, Third District, November  16, 2018).

Other Paid Sick Leave Developments To Watch

Portland, ME may be the next municipality to vote on a PSL ordinance. The Mayor of Portland introduced a PSL bill in 2017. The City  Council will likely vote on the PSL bill on May 6, 2019.

Albany County, NY: The County’s Paid Sick Leave Act was introduced in March 2018, was  referred to the Legislature’s Law Committee, and remains there. The Law Committee’s next meeting is on April 25, 2019.

All part of life’s rich paid sick leave pageant!

Michigan Supreme Court to Consider Request for Advisory Opinion on Paid Medical Leave Law

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 scheduled a hearing on July 17, 2019. The first of three questions listed in the Court’s Order is whether it should exercise its discretion and issue the requested advisory opinion.In Michigan, a legislative chamber or the governor may ask the Supreme Court to issue an advisory opinion on “important questions of law upon solemn occasions as to the constitutionality of legislation….”

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The other two questions for which the Court solicited briefs concern the process-used to enact the PSL. PSL proponents had collected enough signatures to have voters decide in November 2018 whether to enact a PSL initiative. The Michigan Constitution gives the legislature the option to enact such an initiative, negating the need for a vote on it.  Both legislative chambers, both with GOP majorities, had concerns about the substance of the PSL bill. They decided to enact the voter initiative and then amend it. This strategy was adopted because amending a statute enacted by the legislature requires a majority vote in each legislative chamber while amending a statute enacted by a voter initiative requires a three-fourths vote of each chamber.  The urgency to implement this strategy increased in November when voters elected a Democratic governor who would take office in January and would likely veto the effort to amend the PSL law.

Last Fall, the legislature enacted the initiative and a few months later amended it. In December, lame duck GOP Governor Rick Snyder signed the amended bill.

The Supreme Court has asked the parties to brief whether the legislature may “enact an initiative petition into law and then amend that law during the same legislative session” and whether the PSL and minimum wage laws were enacted in accordance with the constitutional provision concerning voter initiatives.

Healthy Families Act Introduced, Yet Again

In the 1993 movie Groundhog Day starring  Bill Murray, events appear to repeat continually. In what had to feel like a Groundhog Day moment, .Congresswoman Rosa DeLauro and Senator Patty Warren yesterday held a press conference to introduce the Healthy Families Actfor the ninth time! Congresswoman DeLauro first introduced the bill in 2005 (along with former Senator Edward Kennedy) and has introduced the bill in every Congress since.
The bill has the typical PSL architecture. Employers must allow employees to accrue one hour of paid sick leave for every 30 hours worked to a maximum accrual of 56 hours annually. Accrual begins at the outset of employment; accrued time can be used beginning the 60th day of employment.
For those who might be thinking that it would be an improvement to have one federal law replace the patchwork of 30+ PSL laws we now have, the bill states specifically that it does not preempt any state or local PSL laws.  Thus, in jurisdictions that already have a PSL law, the Healthy Families Act would add another PSL to comply with.
Will the ninth time be the charm? Or will we repeat this moment again two years from now, in the next Congress?

Weaponizing Sick Days

Schools in Jefferson County Kentucky were closed yesterday because a third of the teachers had called out sick, according to a news report. This was the fifth day in the past two weeks that schools were closed due to widespread teacher absences.

With such repeated widespread absences, one might think health officials would be concerned about an epidemic. Not so in Jefferson County. Rather, the teachers have weaponized sick days by coordinating sickouts to protest some bills pending in the legislature. Somehow, the mantra that employees should not have to choose between a paycheck and their health does not seem to fit. fist-424500_1920

While Kentucky does not have a PSL law, such laws facilitate using sick days as a protest vehicle. Under every state and local PSL law, an employee need only report that he or she will not be at work due to illness.  An employer cannot require medical substantiation that sick leave is being used for its intended purpose unless an employee calls out sick on at least three (and sometimes more) consecutive workdays. Intermittent protests, such as those in Jefferson County, easily negate that medical substantiation provision as a useful tool.

In PSL laws, not enough legislative ink has been spent addressing abuse of sick days. A provision allowing an employer to require medical documentation when it has cause to believe an employee is not using PSL for its intended purpose—regardless of the number of sick days the employee has used–is a good start.

Such a provision would recognize that sick day fraud is a fact of workplace life, would give an employer a tool to deal with it and would add to the overall integrity of a PSL law, unless PSL proponents also believe that no one should be forced to choose between a paycheck and a protest..

Glenview Opts In to County Sick Leave Ordinance

The Board of Trustees of the Village of Glenview last week opted in to the Cook County Earned Sick Leave Ordinance, effective July 1, 2019. The Glenview Board had opted out of the County PSL ordinance in June 2017, just weeks before its effective date. Glenview joins the villages of Northbrook, Wilmette and Western Springs as municipalities that had initially opted out before opting in.

The political change of heart in Glenview comes three months 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. Approximately 80% of the County’s municipalities have opted out of its Earned Sick Leave Ordinance.  My “nix list” is here.

The agenda packet relating to last week’s meeting of Glenview’s Board of Trustees included an interesting bit of information about the enforcement of the County PSL ordinance.  A comment in that packet notes that the County Human Rights Commission, which enforces the County’s PSL law, has stated that “to date there have been no claims filed by employees against Cook County employers regarding violations” of the Earned Sick Leave Ordinance.”

 

 

 

Appeals Court En Banc to Decide Alabama Preemption Challenge

The Eleventh Circuit Court of Appeals last week decided to hear the challenge to Alabama’s minimum wage and employment benefits preemption law en banc, meaning that all of the Court’s judges will hear the case.

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The triggering event for this preemption battle occurred in February 2016 when the City of Birmingham passed an ordinance increasing the minimum wage within the city. The next day, the state legislature responded by enacting the Uniform Minimum Wage and Right-to-Work Act, which prohibits a political subdivision from requiring an employer to provide any wage or “employment benefit” not required by federal or state law, including paid and unpaid leave. It also voided the Birmingham ordinance.

The plaintiffs challenged the preemption law, arguing that it was unconstitutional and violated the Voting Rights Act. In 2017, a federal district court rejected the plaintiffs’ challenges and dismissed the case. Last July, a three-judge panel of the Eleventh Circuit affirmed the dismissal of all but the plaintiffs “equal protection” constitutional claim. That panel held that the plaintiffs had plausibly alleged both that the law “burdens black citizens more than white ones” and that  it was enacted with a discriminatory purpose. Last week’s order to hear the case en banc vacated the three-judge panel decision.

The case is Marnika Lewis et al v.  State of Alabama et al. Docket No.17-11009 (11th Cir.)