“General Judgment” Adds Insight to Oregon Paid Sick Leave Settlement

The lawsuit brought by nine counties challenging the Oregon Paid Sick Leave Law was settled last month. My post about that settlement was based on a newspaper report. I now have the official “General Judgment,” which provides insight into the circumstances that led to the settlement.

A bit of background to put the settlement in context. A Linn County judge last December agreed with the plaintiff-counties that Oregon’s Sick Leave Law was an unfunded liability. My report on that decision is here. The Oregon Constitution states that if a local government must spend more than one hundredth of one percent of its budget on an unfunded program, the local government need not comply with the law.

Following the December ruling, the parties engaged in discovery concerning whether the plaintiffs had met the .01% financial threshold. Following discovery, the parties stipulated that Linn, Douglas and Yamhill Counties met that threshold and “would be “more likely than not to continue to satisfy the financial threshold in this manner in future years if they continued to comply with the paid sick leave law,” according to the Court’s General Judgement. The Court concluded that those three counties “may lawfully refuse to comply with the Paid Sick Leave Law unless and until the Legislative Assembly allocates sufficient funding for the program, or identifies and directs the imposition of a fee or charge to be used by plaintiffs to recover the actual cost of the program, or circumstances change such that” the county no longer meets the financial threshold.

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The other six plaintiff-counties withdrew from the case. While the General Judgment does not explain why they withdrew, I is likely that they were unable to meet the financial threshold.

While a settlement typically ends a litigation, in this settlement, the State has reserved the right to appeal the judge’s decision that the Sick Leave Law is a “program,” as that term is used in the state constitution.  Now the State must decide whether to appeal that decision.

The Oregon Sick Leave Law requires employers with at least ten employees (six in Portland) to provide up to forty hours of paid sick leave annually. Smaller employers must provide unpaid sick leave. This litigation dealt only with the plaintiff-counties as employers. It did not involve private employers.

UPS Delivers $2 Million to Settle ADA Inflexible Leave Case

The EEOC continues to ring the “inflexible leave policy” settlement register despite a 2014 opinion authored by then-10th Circuit Judge, now Associate Justice of the Supreme Court, Neil Gorsuch that such policies are neither inherently unlawful nor retaliatory, and can “serve to protect rather than threaten the rights of the disabled.” Hwang v. Kansas State University, (10th Cir.  2014).

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The EEOC had claimed that UPS violated the ADA by failing to provide reasonable accommodations and by maintaining an “inflexible leave policy, whereby the company fired disabled employees automatically when they reached 12 months of leave, without engaging in the interactive process required by law,” according to the EEOC’s press release  about the settlement.

 

In Hwang, the plaintiff had exhausted her employer’s six month leave policy, requested more leave and alleged that her employer’s denial of her request denied her a reasonable accommodation in violation of the Rehabilitation Act. Continue reading

Court Rejects Albuquerque Healthy Workforce Ordinance Challenge

One day after hearing argument on the challenges to the constitutionality of the proposed Healthy Workforce Ordinance, the judge rejected them all, clearing the way for the October 3 ballot initiative to proceed. Subject to an appeal, of course.

A cadre of business interests had claimed that the HWO violated the state constitution because it violated the “single subject” rule, i.e., was impermissible logrolling; exceeded a home rule municipality’s authority and the territorial reach of the City; and because ordinances may not be enacted by voter initiative. The Intervenor-Defendants, representing employees without earned sick leave and HWO proponents, had moved to dismiss all of these arguments.  In a 10 page opinion, District Court Judge C. Shannon Bacon granted that motion.

courthouse-1223280_640Last week, a judge in the proponents’ HWO litigation issued a decision concerning the logistics of the ballot.  With the HWO opponents’ litigation now dismissed, no obstacles stand in the way of the ballot initiative on October 3, approximately seven weeks from now, although appeals are possible in both litigations.

Regular visitors to my blog are familiar with my axiom about paid sick leave voter initiatives: whenever voters are asked whether they would like paid time off from work, they will say ‘yes.’ My axiom proved true in, for example, Arizona, Washington, Massachusetts, Milwaukee (since preempted), Oakland and San Diego, CA, SeaTac, Trenton and Montclair, NJ.  Will it hold true in Albuquerque as well?

Paid Sick Leave Focus Shifts to Albuquerque Lawsuits

After spending most of the past few months on the [20% of] Cook County Earned Sick Leave Ordinance, the PSL focus shifts to Albuquerque, the Duke City.

Two lawsuits are pending concerning the Albuquerque ballot referendum on the Healthy Workforce Ordinance (HWO)–one brought by HWO proponents, the other by opponents.

My earlier post concerning the judge’s recent decision in the proponents’ lawsuit was based on a newspaper report. Thanks to a little help from my friends, I now have the judge’s decision, which adds some insight. According to that decision:

  • The HWO will be on the October 3, 2017 ballot, and will be printed in 7-point type on a single two-sided page, 8 1/2 in. X 19 in,;
  • The City will have “magnifier devices” and copies of the proposed HWO in 12-point type available to voters at the polling places;
  • The City’s proposed “advisory question” is stricken from the ballot because it “employs semantically ‘loaded’ terms and clearly implies that the proposed HWO is not transparent, fair, wise or workable. It is likely to mislead, confuse, or misdirect the voters….[and] is an inappropriate attempt to inject political advocacy onto the ballot and into the election process.”
  • The stricken proposed advisory question asked: “Shall the governing boy of CABQ [City of Albuquerque] promptly enact a sick leave ordinance in a manner that promotes pubic participation, public hearings, transparency and fairness so that a wise and workable sick leave policy is adopted…””

Concerning the opponents’ litigation, a hearing was held in court yesterday. The judgechopped-wood-1846182_1920 did not issue a decision on the HWO at the hearing. My post about that “single subject,” aka “logrolling,” case is here.

Finally, for those who have not had enough of the [20% of] Cook County Earned Sick Leave Ordinance, I added the Village of Dixmoor to my opt out list, which now has 110 entries.

 

 

Rhode Island Paid Leave Bill: See You in September!

The Rhode Island legislature last week passed a budget and a few other bills, and then left town, portending at least six more weeks of limbo for the proposed Healthy and Safe Families and Workplaces Act. The legislature will meet on September 19 to deal with various bills it left in limbo at the end of the regular session which, presumably, includes the paid leave bill.

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Before a bill can be sent to the governor for her signature, the House and Senate must reconcile the versions each has passed.  Among the differences are the minimum number of employees an employer must employ to be covered by the Act, and the maximum number of paid hours an employee can accrue annually.

The wait for State Number Eight continues. I suspect that the Rhode Island legislature is the only legislature with any meaningful chance of passing a PSL bill in 2017.

Lucky 7 Wins Font Fight in Albuquerque

The text of the Healthy Workforce Ordinance will be printed on the October referendum ballot in 7 point font, not in the 8.5 font requested, a state district court judge ruled last week, according to a local newspaper report. Proponents of the HWO had filed an emergency motion to stop the City from printing the 7-point font ballot.  They had claimed a 7-point ballot was “illegible and [an] illegally-small font size.”dice-1934002_1280

The judge also rejected the City’s effort to include an “advisory” question on the ballot, according to that report. That advisory question asked whether the City should “promptly enact a sick leave ordinance in a manner that promotes public participation, public hearings, transparency and fairness so that a wise and workable sick leave policy is adopted and effective no later than January 1, 2019[].”

The judge said that the advisory question “employs semantically ‘loaded’ terms and clearly implies that the proposed (Healthy Workforce Ordinance) is not transparent, fair, wise or workable,” according to the newspaper report.

A second lawsuit challenges the constitutionality of the HWO. That complaint alleges that combining the HWO’s 14 “non-interdependent” provisions into one voter initiative is “logrolling” in violation of the state constitution. Logrolling, also known as the “single subject” rule, is defined in the lawsuit as “the presentation of double or multiple propositions to the voters with no chance to vote on the separate questions so that unpopular, unworkable or extreme new laws will be voted on, with a potentially popular idea.”  The City and other defendants have asked the court to dismiss the lawsuit. A hearing is scheduled for this Thursday, August 10. Courts in Arizona and Washington have rejected “single subject” rule challenges to their state paid sick leave law. My posts on those decisions are here and here.

Arizona Supreme Court Explains Rejection of Paid Sick Leave Challenge

The Arizona Supreme Court yesterday issued an opinion explaining its March 2017 rejection of a state constitutional challenge to Proposition 206, a ballot initiative approved by voters last November. Codified as “The Fair Wages and Healthy Families Act,” Proposition 206 increases the minimum wage incrementally and, effective July 1, 2017, requires most Arizona employers to provide paid sick days.

A cadre of business interests sued, claiming that the Proposition violated state constitution’s Revenue Source Rule, Separate Amendment Rule, and Single Subject Rule

In rejecting these arguments, the Court said that the Separate Amendment Rule only applies to proposed constitutional amendments, not to proposed statutory changes such as Proposition 206, and that the Single Subject Rule only applies to acts of the legislature, not voter initiatives.

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The Court also said the Proposition did not violate the Revenue Source Rule because a “mandatory expenditure of state revenues” only occurs when it directly causes an expenditure of state revenue. The Court held that the Proposition directly causes an expenditure of state revenue only to implement and enforce the law and that, for those activities, the law states that they shall be funded by civil penalties paid by employers.

Based on this opinion, I am deleting the Arizona case from the PSL Litigation Docket.