Nebraska Comes to the Paid Sick Leave Table

With the introduction of the Healthy and Safe Families and Workplaces Act on January 4, 2018, Nebraska comes to the paid sick leave table. Legislative Bill 844 was introduced into the state’s unicameral legislature and then referred to the Business and Labor Committee.

The bill has the typical PSL architecture. Employees of employers with at least four employees would accrue paid safe and sick time at the rate of one hour for every 30 hours worked to a maximum of 40 hours per calendar year. Employees would be able to use the accrued time after 60 days of employment for the usual reasons.  An employee may pursue alleged violations through either an administrative process or a private right of action in court.

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The Cornhusker State is the only state in the country with one legislative chamber. The bicameral legislature was eliminated in 1934 to save money. The Nebraska legislature is also the smallest legislature in the country, with 49 members.

For those who believe a state’s status as a blue state increases the chances that a PSL will pass while the chances are decreased in a red state, the odds that LB 844 will pass are not very good. In the 2016 presidential election, about 59% of the Nebraska electorate voted for President Donald Trump while slightly more than one-third voted for Secretary Hillary R. Clinton.

Cook County Wins Paid Sick Leave Patchwork Award

And the 2017 Paid Sick Leave Patchwork Award for its contribution to the vast and complex patchwork of paid sick leave laws goes to (drumroll please) Cook County, Illinois.  There was not a close second.

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Before the County enacted its Earned Sick Leave Ordinance in October 2016, the State’s attorney cautioned that the County did not have the authority to enact it. The County Commissioners were undeterred.

The Illinois Constitution gives home rule municipalities the right to not comply with a County ordinance if the municipality has a conflicting ordinance. Thus far, by my count, 110 municipalities—about 80% of those in the County–have enacted an ordinance whose sole purpose is to conflict with the Cook County Ordinance, essentially negating or opting out of that Ordinance. These opt-outs include many non-home rule municipalities.

You need not look too far into your crystal ball to see the litigation likely to result. When the County seeks to enforce its Ordinance against an employer in a non-home rule municipality that has opted out and claims that the municipality did not have the authority to opt out, the employer will say “well, YOU had no authority to pass the ESL in the first place.”

But there is more. As a result of the opt outs, a mobile employee who travels throughout the County, such as a delivery driver or cable television tech will, during any given day, travel through municipalities where the employee accrues paid sick leave and others when the employee is not accruing such leave.  Accurately tracking the time when such an employee is and is not accruing paid time during a day will be near impossible.

But that is not all. The carry-over provision is the most complicated I have ever seen in any paid sick leave law nationwide. The amount of unused hours that can be carried over differs depending on whether the employer is an “FMLA-Eligible Covered Employer” or not. A non-FMLA-Eligible employee can carryover up to half of the unused hours, to a maximum of 20 hours. An FMLA-Eligible employee can carry over up to 40 hours in addition to that twenty. The 20 hours are “Ordinance-Restricted Earned Sick Leave” and can only be used for reasons set out in the Ordinance. The other 40 hours are “FMLA-Restricted Earned Sick Leave” and can be used for FMLA purposes only. The confusion this will cause will be limitless.

A PSL-hat tip to Cook County!

 

Turning the Paid Sick Leave Page to 2018

As we turned the PSL page to a new year, the vast and complex patchwork of PSL laws consisted of more than 40 laws: 8 state laws, the District of Columbia, 2 county laws and about 30 municipal laws.

The Rhode Island Healthy and Safe Families and Workplace Act was the only PSL law enacted in 2017, the fewest number of PSL laws enacted in a year since 2011.  The Maryland and Nevada legislatures passed PSL bills last year but, in each case, the governor vetoed the bill. On January 11, 2018, the Maryland legislature overrode that veto, making Maryland the ninth PSL state.

In the only 2017 PSL referendum, Albuquerque voters very narrowly rejected the Healthy Workforce Ordinance.  Prior to the vote, lawsuits challenged the manner in which the proposal would be printed on the ballot and its constitutionality.

Paid Sick Leave Laws Effective in 2017

Nine PSL laws went into effect in 2017. While the Spokane ordinance is one of these, it “sunset,” became null and void, on January 1, 2018.  Also, while the Cook County ordinance went into effect in 2017, approximately 80% of the municipalities within the County have opted out of complying with the Ordinance. The nine are:

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Other political subdivisions

Paid Sick Leave Laws Effective After 2017

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Other political subdivisions

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Paid Sick Leave Bills Introduced During 2017 Continue reading

Maryland One Vote Away from Paid Sick Leave State Number Nine

The eyes of the PSL world today are on Maryland. The House of Delegates yesterday voted to override Governor Larry Hogan’s veto of the Healthy Working Families Act,. If the Senate also votes to override the Governor’s veto, Maryland will become the ninth state to enact a PSL law.

In the House of Delegates, to override a veto, at least 60% of the members of the House needed to vote to override. The House tally in favor of overriding the veto was 88-52, three more than needed to meet the 60% threshold. When the bill was passed initially last May, 87 House members had voted for the bill.

The Senate is expected to take up the override vote today, Friday. In that chamber, 29 votes are needed to override, the exact number of senators who voted for the bill in May.

The Healthy Working Families Act requires employers with 15 or more employees to provide up to five days of paid sick and safe leave to be used for reasons relating to the employee’s or family member’s illness, injury or condition; for maternity and paternity; and for absences related to domestic violence, sexual assault or staking committed against the employee or the employee’s family member. The Governor has described  this bill as a “deeply flawed, job-killing” bill.

The eight states with paid sick leave laws are Arizona, California, Connecticut, Massachusetts, Oregon, Rhode Island, Vermont, Washington.

Maryland May Become Paid Sick Leave State Number Nine 

Maryland this week may become state number nine to enact a paid sick leave law. The legislature last May passed the Maryland Healthy Working Families Act but Governor Hogan vetoed it, favoring instead his own The Common Sense Paid Leave Act, which never came to a vote.

The vetoed bill requires employers with 15 or more employees to provide up to five days of paid sick leave which can be used for an itemized list of reasons.  The Common Sense Paid Leave Act would have required employers with 50 or more employees to provide employees up to forty hours of leave which employees may use for any reason. 

state-house-annapolis-mdGovernor Hogan recently proposed the Paid Leave Compromise Act, which would scale down the size of the employer required to provide paid leave from fifty employees in 2018, to forty employees in 2019, to 25 employees in 2020 and subsequently but allow employees to use accrued time for any reason.

Maryland can become state Number Nine by either overriding the Governor’s veto of the Maryland Healthy Working Families Act; accepting the Governor’s Compromise Act; or negotiating something in-between. The Healthy Working Families Act passed the legislature with sufficient votes to override the Governor’s veto but narrowly so.
Stay tuned. Regardless of the weather, the heat will be on in Annapolis this week.

Paid Sick Leave Quarterly: 4Q 2017

As we wrap up the last quarter of 2017, the vast and complex patchwork of PSL laws consists of more than 40 laws: 8 state laws, the District of Columbia, 2 county laws and about 30 municipal laws. My reports on the first three quarters of 2017 are here, here and here.  My 2017 fourth quarter PSL report is below.

In January, i will post a summary of 2017 PSL developments. In that post, I will also name the winner of the “2017 Paid Sick Leave Patchwork Award” to recognize the jurisdiction that has made the greatest contribution to the PSL patchwork in 2017. I suspect that most who follow this blog could guess the winner quite easily.

Paid Sick Leave Laws Effective This Quarter

Paid Sick Leave Laws Effective After This Quarter

  • New York City (amendment): New York City amended its Earned Sick Time Act to allow employees to use accrued time for reasons related to domestic violence. The law, now called the New York City Safe and Sick Time Law, is effective  May 7, 2018.
  • Rhode Island Healthy and Safe Families and Workplace Act (July 1, 2018).
  • Seattle, WA (amendment). On December 15, 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.” Generally, where the state law is more generous than the Seattle ordinance, this amendment raises the ordinance standards to that state level. Among the changes, the Seattle ordinance now applies to employers with just one employee (it previously applied to employers with at least four employees); has expanded “family member” definitions; eliminates caps on the use of accrued time; and reduces the waiting period for use of accrued time from 180 to 90 days.  It is effective 30 days after enactment.
  • Tacoma, WA (amendment). Tacoma amended its PSL law to align it more closely with the Washington PSL law. The amendment is effective January 1, 2018.
  • Washington Law Establishing Fair Labor Standards by Requiring Employers to Provide Paid Sick Leave to Employees (January 1, 2018).

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Paid Sick Leave Bills Introduced This Quarter

Maryland: Governor Hogan recently proposed the Paid Leave Compromise Act, which would gradually reduce the size of an employer required to provide paid leave from fifty employees in 2018, to forty employees in 2019, to 25 employees in 2020 and subsequent years.  It would allow employees to use accrued time for any reason. The compromise bill is an attempt to avoid a January PSL showdown over the Governor’s veto last spring of a PSL bill passed by the General Assembly.

Albuquerque: Just ten weeks after voters narrowly rejected the Healthy Workforce Ordinance, on December 18, the Albuquerque Sick Leave Ordinance was introduced in the City Council. It has the typical PSL-ordinance architecture. The Ordinance would require employers with at least 50 employees to allow employees to accrue one hour of paid sick leave for every 40 hours worked, with a maximum accrual and use of forty hours annually, and carryover of up to forty hours of unused time.

Paid Sick Leave Preemption Developments

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. Oral argument on the appeal is likely to be held in the first quarter of 2018.

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.

Federal: 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 in 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).

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. In 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….”

Other Paid Sick Leave Developments To Watch

Austin, TX: The Austin City Council voted in September to consider requiring private employers to offer employees paid sick leave.  Austin has held three meetings to obtain the views of the community.  The city staff will submit a recommendation to the City Council for its consideration.

Duluth, MN: The Duluth Safe and Sick Time Task Force presented its report to the City Council on November 20. The majority recommendation has the typical PSL-ordinance architecture, though the task force lacked a consensus on an annual cap or carryover provisions. A second recommendation would require employers to have a written policy publicly available providing at least three days of PSL annually for full-time employees, a pro-rated amount for part-time employees.

Michigan: The state Board of State Canvassers has approved a petition to allow proponents of the Earned Sick Time Act to collect signatures to try to have the Act on the ballot in November 2018. Proponents have until early Spring 2018 to collect enough signatures.

Portland, ME. The mayor has presented his  proposed Earned Paid Sick Time for Workers Ordinance to the City Council. It has been referred to the Health and Human Services Committee “for further research and deliberation.” The ordinance has the typical PSL-architecture: employees working in Portland would accrue one hour of sick time for every 30 hours worked, to a maximum of 6 days annually. If enacted, the Ordinance would be effective July 1, 2018.

Spokane:  In response to voters having approved a state-wide PSL bill in November 2016, Spokane amended its PSL law to “sunset,” i.e., have no effect, upon the effective date of the state law, i.e., January 1, 2018.