No need for a new Texas law to preempt the Austin Earned Sick Time Ordinance because it is already preempted and unconstitutional, according to a lawsuit filed Tuesday by a cadre of business interests. The lawsuit launches three broad challenges to the Austin ordinance and seeks to enjoin it from ever going into effect. It alleges that the ordinance:
- is preempted by the Texas Minimum Wage Law which requires employers to pay the federal minimum wage under the FLSA and the FLSA does not require employers to pay for time not worked as the Austin PSL ordinance does;
- violates the due process clause of the state constitution because the “articulated governmental interests are factually unsupported,” “…its mandates “have no rational connection to furthering those interests” and even if they did, the mandates are “so burdensome as to be oppressive in light of the alleged governmental interest”; and
- violates the state constitution’s equal protection clause because it allows employers and unions to modify the yearly cap in their labor contracts but does not afford non-union employers the right to modify the cap.
The lawsuit also alleges that the section of the Austin ordinance that allows for administrative subpoenas is an unconstitutional search and seizure because it does not provide for “judicial review before being required to comply” with the subpoena.
On May 29, 2018, a hearing will be held on the plaintiff’s request for a temporary injunction, according to the suit.