Waiting for New Jersey Governor Phil Murphy to sign the PSL bill passed by both legislative chambers reminds me of waiting for Beckett’s Godot, where Estragon and Vladimir lament daily that Godot did not come today, he might come tomorrow.
The New Jersey legislature sent the governor the PSL bill last week. When that signing occurs, with the stroke of a PSL pen, Governor Murphy will lop off almost a third of the paid sick leave patchwork because the bill will preempt the 13 municipal PSL bills within the state when it goes into effect 180 days after the governor signs it. (See my post about that provision here.)
Despite the lopping, PSL proponents should be pleased because the scope of PSL coverage will expand to the entire state. Because of the lopping, PSL patchwork opponents should be pleased because there will be a dozen fewer PSL laws.
Post-lop, about 30 jurisdictions will have PSL laws; 10 states, the District of Columbia, 2 counties and about 17 municipalities.
If the wait for the New Jersey governor’s signature is too long, Hawaii might sneak in as PSL state number ten. A conference committee there will be hammering out the differences between the House and Senate passed PSL bills.
Paid sick leave proponents in Dallas, TX have filed paperwork enabling them to collect signatures to try to put a paid sick leave initiative on the ballot in November, according to a report. Proponents now have 60 days, until June 11, 2018, to collect nearly 65,000 signatures, which is 10% of city voters, according to that report.
Austin planted the PSL flag in the South by passing its ordinance in February. That ordinance is effective on October 1, 2018. My post about that ordinance is here. The proposed Dallas PSL ordinance is identical to that of Austin, according to that news report. An initiative to put PSL on the ballot in San Antonio is also underway.
As we have seen, a state’s status as a blue state increases the chances that a PSL will pass while those chances are decreased in a red state. The Dallas situation is very similar to that of Austin and requires a bit of nuance.
In the 2016 presidential election, Texas was a red state: 53% of Texans voted for President Donald Trump while 43% voted for Secretary Hillary Clinton. However, Dallas County was deep blue, with more than 61% of votes cast for Secretary Clinton. Given that deep blue status, one would expect to see strong support for a PSL ballot initiative. For that reason, it is worth keeping an eye on Dallas PSL developments.
The next obvious question is whether Texas will enact a preemption bill to ban political subdivisions from enacting PSL laws. One state legislator has said that he would introduce such a bill in response to the Austin ordinance.
The governor’s signature is all this is needed to make New Jersey the tenth state to require employers to provide employees with paid sick leave. The Senate yesterday passed the PSL bill which the Assembly had passed last month. The governor has said he supports PSL and is expected to sign the bill. My prior post on that bill is here.
A substitute Senate paid sick leave bill yesterday was reported from the Senate Budget & Appropriations Committee and will move forward in the legislative process (S2171). The Assembly had approved a substitute PSL bill last week. (A1827). If New Jersey enacts a PSL law, it will be the tenth state in the nation to have done so.
Since thirteen New Jersey municipalities have already enacted PSL ordinances, a significant issue is whether the state law would be in addition to those ordinances or would preempt them. Both the Senate and Assembly bills have an identical provision that prohibits political subdivisions from adopting a PSL ordinance after the effective date of the state-wide law. That provision also appears to preempt the thirteen municipal PSL ordinances although, in my opinion, that language could have been drafted a bit more clearly. That provision states:
The governing body of a county or municipality shall not, after the effective date of this act, adopt any ordinance, resolution, law, rule, or regulation regarding earned sick leave. The provisions of this act shall preempt any ordinance, resolution, law, rule, or regulation regarding earned sick leave adopted by the governing body of a county or municipality.
The stars seem aligned for New Jersey to enact a PSL bill. Democrats have a 25-15 majority in the Senate. Democratic Governor Phil Murphy has said he supports PSL statewide.
The vast and complex patchwork of PSL laws expanded in the first quarter of 2018 with the addition of a state law in Maryland and a local law in Austin, Texas. The patchwork now has more than 40 laws: 9 state laws, the District of Columbia, 2 county laws and about 31 municipal laws. This summary includes:
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 is effective May 7, 2018.
Seattle, WA (amendment). In December, Seattle amended its Paid Sick and Safe Time Ordinance “to incorporate the more generous provisions of voter-passed, Washington Initiative 1433 establishing statewide paid sick leave,” effective January 14, 2018.
Tacoma, WA (amendment). Tacoma amended its PSL law to align it more closely with the Washington PSL law, effective January 1, 2018.
Alaska: House Bill No. 30, An act relating to the payment of sick leave by employers. (Introduced in 2017, the first year of a two-year legislative session.)
California: AB2841, to amend the existing PSL law by changing the requirements of the employer’s alternate sick leave accrual method and by increasing the sick leave accrual for in-home supportive services providers.
Connecticut, HB5044, to amend the existing PSL law by reducing the workforce size of a covered employer and expanding coverage from specified job titles to all non-exempt employees.
Georgia: HB 267, The Paid Sick Leave Act. (Introduced in 2017, the first year of a two year legislative session.)
Hawaii: HB4 and SB 425 (untitled)(carried over from 2017 regular session).
Illinois: HB 2771, Healthy Workplace Act. (Introduced in 2017, the first year of a two year legislative session.)
Minnesota: SF 1794, Earned Safe and Sick Time Act. and HB 239, Working Parents Act. (Both introduced in 2017, the first year of a two year legislative session.)
Nebraska; LB844, Healthy and Safe Families and Workplaces Act.
New Jersey; AB 1827, an act concerning earned sick leave, passed the Assembly on March 26, 2018. Related bill S2171 pending in the Senate.
New York; SB2826, Paid Sick Leave Act. (Introduced in 2017, the first year of a two year legislative session.)
North Carolina: SB 556, H544, Healthy Families and Workplaces/Paid Sick Days; Senate Bill 174/House Bill 238, the Economic Security Act of 2017 (All bills introduced in 2017, the first year of a two-year legislative session.
Alabama: Marnika Lewis v. State of Alabama et al. (11th Cir) (Case No.17-11009). In February 2017, a federal court judge 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” not required by federal or state law. An“employment benefit” includes paid and unpaid leave. The plaintiffs have appealed to the U.S. Court of Appeals for the Eleventh Circuit.
Maryland: The Healthy Working Families Act, enacted in January over Governor Larry Hogan’s veto, has a qualified preemption provision. It prohibits local jurisdictions from enacting a law regulating sick and safe leave but grandfathers in Montgomery County’s Earned Sick and Safe Leave Law.
Rhode Island: The Healthy and Safe Families and Workplace Act, passed in September, has a “uniformity” clause which prohibits municipalities from requiring employers to provide more paid sick and safe time than is required by this law.
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. A subcommittee held a hearing on paid leave policies in December.
Paid Sick Leave Litigation
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).
Washington: 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 in February by the Air Transport Association of America, doing business as Airlines For America (A4A), an association of airline carriers. The plaintiff claims that the WPSL violates both the “dormant” Commerce Clause and the Fourteenth Amendment of the Constitution. The dormant Commerce Clause is not a clause at all but the idea that implicit in the affirmative grant of authority to Congress to regular interstate commerce 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 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.” 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 has agreed to hear an appeal concerning the City of Pittsburgh’s authority to enact the Sick Days Act, which it enacted in August 2015. Last May, 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….”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).
Other Paid Sick Leave Developments To Watch
Michigan: The Board of State Canvassers has approved the form of an initiative petition submitted by MI Time to Care to allow proponents to try to collect the required number of signatures to put the initiative on the November 2018 ballot.
Albuquerque, NM: After voters rejected a PSL bill last fall, a new PSL bill was introduced in the City Council in December 2017. The bill has been assigned to a finance committee.
San Antonio, TX: Proponents of a paid sick leave ordinance are collecting signatures to put the initiative on the November 2018 ballot.
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.
The statute says that employees accrue an hour of paid sick and safe leave time for every thirty-five (35) hours worked.
The proposed rule says: “Employees shall accrue earned sick time or PSSL benefits for all hours worked and all hours paid while collecting paid time off benefits, including but not limited to holiday pay, personal time, sick time and vacation time.” (Italics added)
My comment: Hours worked and hours paid are two very different concepts. The standard in the 40+ PSL laws nationwide is that employees accrue time off based on hours worked, not hours paid.
Documentation to Support the Need for Leave
The statute says: “For paid sick and safe leave time of more than three (3) consecutive work days, an employer may require reasonable documentation that the paid sick and safe leave time has been used for a purpose covered by [the law]….” It then specifies the types of documentation that shall be considered reasonable.
The proposed rule says: “Any expense or burden on an employee shall be considered to be unreasonable if the total cost to the employee to obtain certification regarding their absence is more than two times their hourly rate of pay. In determining the total cost to the employee, costs such as administrative, government or medical fees, and transportation cost shall be included.”
My Comment: The statute does not impose a cost or burden limitation on an employer’s entitlement to reasonable documentation. There’s a waiting limitation (more than 3 consecutive work days of PSSL time) but that’s it. The proposed rule creates an additional hurdle. PSL laws do not typically impose a cost limitation relating to obtaining documentation.
The comment period on the proposed rules closes on April 8.
When Connecticut in 2012 became the first state nationwide to require private sector employees to provide paid sick leave to employees, the bill passed by the narrowest of margins. To garner votes, the scope of the bill was narrowed: it would only apply to employers with at least 50 employees; manufacturing operations were excluded; only a covered employer’s “service workers,” a collection of about 70 job titles would be eligible for PSL.
Now, six years later, legislative creep has come to Connecticut. A bill is pending in the House that would undo many of those compromises. The Act Concerning the Fair Treatment of Sick Workers (HB5044) was approved last week by the Joint Committee on Labor and Public Employees strictly along party lines—7 Democrats voted to move the bill; 6 Republicans voted no. It would reduce the size of an employer required to provide paid sick leave from 50 to 20 employees. It would require employers with less than 20 employees to provide unpaid sick leave. It would eliminate the “service worker” limitation and require covered employers to provide sick leave to all non-exempt employees. The manufacturing exemption would be deleted. The waiting time before an employee could use accrued leave would be reduced from 680 hours, or 17 weeks, to 90 calendar days.
The bill has been sent to the Legislative Commissioners’ Office, which checks its constitutionality and consistency with other laws. After that stop, a fiscal analysis and legislative explanation will be done before bill is passed to the House and Senate for a vote. As we have seen many times before, a state’s status as a red or blue state is a very good indicator of the likelihood of success of a PSL bill. Connecticut is a blue state. Governor Dannel Malloy is a Democrat and has said he supports this bill. The Democrats have a majority of the House seats. In the Senate, there is an 18-18 split. The Lieutenant Governor, a Democrat, votes to break ties.
Time is also a factor. The General Assembly adjourns in about seven weeks, on May 9. That leaves plenty of time for PSL-sausage making (again).