The vast and complex patchwork of PSL laws added in 2Q a New Jersey law–the 10th PSL state–and an ordinance in Duluth, Minnesota. This summary includes:
- Paid Sick Leave Laws Effective in Q2
- Paid Sick Leave Laws Effective After Q2
- Paid Sick Leave Bills Introduced During Q2
- Paid Sick Leave Preemption Developments
- Paid Sick Leave Litigation
- Other Paid Sick Leave Developments To Watch
- Rhode Island Healthy and Safe Families and Workplace Act (July 1, 2018).
- New York City (amendment): New York City amended its Earned Sick Time Act to allow accrued time to be used for reasons related to domestic violence. The renamed New York City Safe and Sick Time Law was effective May 7, 2018.
- Austin Earned Sick Time Ordinance (October 1, 2018).
- New Jersey Earned Sick Leave Law (October 29, 2018).
- Duluth Earned Sick and Safe Time Ordinance (January 2020).
- None, though some introduced previously are still pending.
Alabama: Marnika Lewis v. State of Alabama et al. (11th Cir) (Case No.17-11009). Last year, a federal district court rejected challenges to the Alabama Uniform Minimum Wage and Right-to-Work Act, which bars political subdivisions from requiring employers to provide employees with wages or “employment benefits, ”including paid and unpaid leave, not required by federal or state law. The plaintiffs have appealed to the U.S. Court of Appeals for the Eleventh Circuit, which heard oral argument on April 13, 2018.
New Jersey: The New Jersey Earned Sick Leave Law preempts the existing 13 municipal PSL laws within the state as well as any future local earned sick leave laws. The state law is effective October 29, 2018, at which time the 13 municipal laws will meet their demise, which will reduce by about a third the number of PSL laws nationwide.
Proposed federal bill: The Workflex in the 21st Century Act, introduced in the House of Representatives in November, would expand ERISA preemption to override the patchwork of paid sick leave laws for an employer which voluntarily adopts a written qualified flexible workplace arrangement” (QWFA) that provides the required minimum amount of “compensable leave” and offers employees at least one of the listed “workflex options.” The bill has been referred to U.S. House Committee on Education and the Workforce, which held a hearing on the bill on July 24, 2018.
Challenges to state PSL laws
Massachusetts: A railroad had argued that the Massachusetts Earned Sick Time Law (MESTL) was preempted by the Railroad Unemployment Insurance Act (RUIA), the Railway Labor Act and ERISA with regard to interstate rail carriers. The First Circuit held last June that the section of the MESTL dealing with benefits for an employee’s own medical condition was preempted by the RUIA. The court remanded the case to have the district court decide whether any other sections are preempted by the RUIA or the Railway Labor Act or ERISA and whether any sections of the MESTL survive as applied to interstate rail carriers. CSX Transportation, Inc. v. Healey (1st Cir. 2017).
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 and the Fourteenth Amendment of the Constitution. The dormant Commerce Clause is an implicit restriction on the ability of state and local governments to impose an unreasonable burden on interstate commerce. The plaintiff also alleges that the Airline Deregulation Act (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.” 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); 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).
Challenges to local PSL laws
Pittsburgh, PA: The Supreme Court of Pennsylvania will decide whether the City of Pittsburgh had authority to enact the Sick Days Act, which it enacted in August 2015. Last year, an appellate court affirmed a lower court’s decision that the city did not have the authority to enact it and invalidated the Act. The lone dissenting judge said that Pittsburgh had the right to protect the health and safety of its residents and that the Sick Days Act was an exercise of that right. 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….” The briefing by the parties was completed on April 4, 2018. Pennsylvania Restaurant and Lodging Ass’n v. City of Pittsburgh and Service Employees Int’l Union, Local 32 BJ. (Pa. Supreme Court, 227 WAL 2017).
Austin, TX: A cadre of business interests had sued to enjoin implementation of the Austin Earned Sick Time Ordinance, which is scheduled to go into effect on October 1, 2018. Noting that the case “has the aroma of a good political blood fight,” a state district court judge denied the injunction request. However, the plaintiffs might appeal the district judge’s decision or proceed to litigate the substance of their claims. The plaintiffs claim that the Austin Ordinance is preempted by the Texas Minimum Wage Law which requires employers to follow the federal minimum wage law, which does not require employers to pay for time not worked as the Austin PSL ordinance does. They also claim the ordinance 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.” They also argue that the Ordinance 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. Texas Ass’n of Business et al v City of Austin, Texas et al (D.Ct. Travis County 2018).
Albany County, NY: The County’s Paid Sick Leave Act was introduced in March and referred to the Legislature’s Law Committee. The Albany bill has the typical PSL architecture: employees accrue one hour of paid leave for every 30 hours worked, to an annual maximum of 72 hours for employers with at least ten employees, lesser and phased-in amounts for smaller employers except that employers with five or fewer employees would provide unpaid leave. The Law Committee is scheduled to consider the bill at a July 23, 2018 meeting.
Cook County Earned Sick Leave Ordinance: Two Cook County municipalities that had previously voted to opt out of the County’s PSL ordinance revisited their decisions. In April, Western Springs opted in to the County PSL ordinance; Wilmette Village again voted to opt out of the County PSL ordinance.
Dallas and San Antonio, TX: PSL proponents in both cities have collected signatures to put the initiative on the November 2018 ballot. In Dallas, PSL proponents submitted what they believed were a sufficient number of signatures to support the ballot initiative but city officials said recently that the number of valid signatures is 871 fewer than required. In San Antonio, PSL supporters also submitted what they believed were sufficient valid signatures to support the PSL ballot initiative. The next step is for the City Council to decide whether to officially certify the issue for a ballot initiative.
Michigan: PSL proponents in Michigan have submitted what they believe are sufficient signatures to have voters decide in November whether to adopt a PSL law. Two business groups have filed challenges with the Board of State Canvassers concerning both the substance of the proposed ballot initiative and the validity of some signatures.
Westchester County, NY: 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. A public hearing has been set for September 17, 2018 at 7:30 p.m.
On Labor Day 2015, then-President Obama signed Executive Order 13706, Establishing Paid Sick Leave for Federal Contractors, which requires certain government contractors to provide certain employees with paid sick leave. The EO applies to certain government contractors who enter into certain government contracts after January 1, 2017. While there has been speculation about the plight of EO 13706 in the Trump administration, no steps have yet been taken to negate it and, unless and until it is voided, the EO is in effect.
All part of life’s rich paid sick leave pageant!