Wilmette Opts In After Twice Opting Out of Cook County Sick Leave Ordinance

They were against it twice before they were for it. The Wilmette Village Board on Wednesday opted in to the Cook County Earned Sick Leave Ordinance. The Wilmette Board had opted out of it in June 2017 and again in June 2018.

The political change of heart comes three weeks after the November 6 advisory ballot initiative in which  nearly 90% of voters in municipalities that had opted out of the County law urged their municipality to enact a paid sick leave ordinance.

Earlier this year, before the November referendum, the villages of Northbrook and Western Springs opted in to the County PSL law after having initially opted out. Other municipalities are expected to revisit their opt out decision as well.

Approximately 80% of the County’s municipalities have opted out of the its Earned Sick Leave Ordinance.  My “nix list” is here.

Senate Amends Michigan Sick Leave as Political Clock Ticks

The Michigan Senate yesterday amended—PSL proponents would likely say gutted– the PSL law the state had passed less than three months ago. The Senate’s action was the second step of the “pass it, then amend it” PSL strategy the GOP-controlled legislature was pursuing when it passed the PSL law in September rather than let voters adopt it in November through a ballot initiative.  Had the voters adopted the initiative, the legislature would have needed a three-quarters vote in each chamber to amend it. Amending a legislative enactment requires a majority vote in each chamber.

The clock is ticking because if the  PSL law does not get amended by the end of 2018, the law will likely remain as it was enacted in September.  Here is why: for a few more weeks, through the end of 2018, Michigan has a GOP trifecta–a Republican Governor and GOP control of both houses of the legislature. Come January 1, 2019, Gretchen Whitmer, a Democrat, will become the governor. While the GOP maintained control of both chambers in the recent election, neither chamber will have the two-thirds majority that would be required to override the governor’s veto.

As for the substance of the Senate amendment passed yesterday, the changes are many. Among them are reducing the scope of employees eligible to accrue PSL. Under the amendment, exempt employees and those covered by a labor contract, among other categories of employees, would not be eligible to accrue PSL.

Stay tuned.

 

Austin Sick Time Ordinance Preempted, Appellate Court Rules

The Austin Earned Sick Time Ordinance is unconstitutional because it is preempted by the Texas Minimum Wage Act (TMWA), the Texas Court of Appeals, Third District, ruled on Friday. A state district court judge earlier this year said that the challenge to the Austin PSL ordinance had “the aroma of a good political blood fight,”

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The court’s ruling focused largely on whether the sick days required by the Austin ordinance were a “wage,” a term not defined in the TMWA. Relying on dictionary definitions to discern the “plain meaning” of that word, the court noted that the Austin Ordinance establishes a wage because it “increases the pay of those employees who use paid sick leave.”

The court explained that employees who use sick leave are paid a higher rate of pay for hours actually worked.  For example, the court noted, an hourly employee earning $10 per hour who works 15 hours per week for 50 weeks (750 hours total) will have earned $7500 for that work. If that same employee uses the 25 hours of sick leave earned during that period under the Austin ordinance, the employee’s hourly wage for hours worked would increase to $10.33.

The court concluded that since “the Ordinance increases the pay of those employees who use paid sick leave,” it is a “wage” under the TMWA and, for that reason, is preempted by that state law.

The court’s decision comes just a few days after a Texas  legislator pre-filed a bill to preempt local paid sick leave laws. My post on that pre-filing is here.

San Antonio is the only other Texas city to have enacted a PSL law. It is scheduled to be effective on August 1, 2019.

Paid Sick Leave Preemption Introduced in Texas

Yesterday was opening day of the pre-filing season in the Texas Legislature and one of the 400+ pre-filed bills would preempt municipalities from adopting or enforcing any ordinance requiring an employer to provide paid sick leave to an employee. House Bill 222 also voids any ordinance that requires an employer to provide paid sick leave, such as the Austin and San Antonio PSL ordinances.

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The legislative session opens on January 8, 2019. Given that Texas has a GOP trifecta—Governor Greg Abbott and Republican majorities in the House and Senate—the political stars seem aligned for this bill to have a good chance of passing. If enacted, the bill would be effective September 1, 2019.

That the bill was pre-filed comes as no surprise. The ink was barely dry on the Austin ordinance when state legislators promised to introduce a bill to preempt it. The Austin ordinance had been scheduled to go into effect on October 1, 2018 but its implementation has been enjoined pending the outcome of the litigation challenging its validity. The San Antonio ordinance is effective August 1, 2019.

The pending legal challenge to the Austin Ordinance argues that it is already preempted by the Texas Minimum Wage Law. The legislature’s passing this preemption bill would remove any doubt about that.

If enacted, House Bill 222 would make Texas a PSL preemption state, the 22nd such state according to my count.

Cook County Voters in “Opt Out” Municipalities Urge Paid Sick Leave Law

In the only PSL ballot initiative last week, nearly 90% of voters in Cook County municipalities that had opted out of the County’s Earned Sick Leave law voted in favor of their municipality enacting an ordinance matching the County’s PSL law.

The County Board of Supervisors had assigned the following advisory referendum question for the November 8 ballot:

Shall your municipality match the Cook County earned sick time law which allows for workers to earn up to 40 hours (5 days) of sick time a year to take care of their own health or a family member’s health?”

With 95% of precincts reporting, 89.37% of voters favor a matching municipal PSL.ballot-1294935_640

Approximately 80% of the County’s municipalities had opted out of the County’s Earned Sick Leave Law, which went into effect in July 2017. My “nix list” is here.

The outcome of last week’s advisory vote comes as no surprise.  When asked whether they would like more paid time off, voters almost always say ‘yes’ by a wide margin.  The Board of Supervisors, I suspect, is counting on that voter sentiment to pressure the municipalities that had opted out to either opt back in to the County ordinance or enact a municipal ordinance matching the benefits of the County ordinance. Earlier this year, two villages–Northbrook and Western Springs– repealed their opt-out ordinance, effectively agreeing to be subject to the County PSL law.

Michigan and San Antonio were slated to have PSL ballot referenda but in both situations, the legislature took the issue from the voters and enacted the PSL law that would have been on the ballot.

A Dozen Paid Sick Leave Laws Disappear

It happened last night, while you slept, and it happened in New Jersey. The Garden State had passed the New Jersey Earned Sick Leave Law last May; it is effective today. A provision of that law nullifies—preempts is the legal term–the thirteen municipal PSL laws that had been passed in the state, for a net reduction of twelve PSL laws. That reduces the total number of PSL laws nationwide by almost thirty percent. Of course, despite this reduction, many more Garden State employees are now covered by the single statewide PSL law than had been covered by the thirteen municipal ordinances.

PSL states in which political subdivisions had enacted a PSL law have taken different approaches to those local laws. Oregon, like New Jersey, preempted local PSL laws. California and Washington did not. Maryland’s law preempted local PSL laws but grandfathered in the Montgomery County law.

Paid Sick Leave on its Way to Albany County?

Gazing into my PSL crystal ball, I see Albany County (NY) becoming the fourth county in the nation to adopt a paid sick leave law. The only question is when it will be adopted. The Law Committee of the County Legislature held a public hearing earlier this week on an amended proposed Albany County Paid Sick Leave Act. The political stars are aligned: the County Executive is a Democrat and Democrats have a roughly a 2-1 majority in the legislature.

While noting in the “legislative intent” that the bill is being implemented “in a manner that is feasible for employers,” the bill includes some of the more pro-employee provisions. For example:

  • Employees accrue PSL time at the rate of one hour for every 30 hours worked.
  • Employees of employers with at least 100 employees can accrue up to 72 hours in a 12 month period, one of the largest PSL annual accrual amounts nationwide. Employees of employers with more than five but less than 100 employees can accrue up to 40 hours. Employees carryover their unused time unless the employer pays it out at the end of the period and frontloads the following 12-month period’s allotment.
  • Its definition of “family member” extends beyond a broad definition of family members to include individuals who are akin to family members, including “any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.”
  • PSL time may be used for a litany of reasons. It almost seems that the drafters compiled a list of every reason listed in every other safe and sick leave law nationwide.

The proposed law also shortchanges union-represented employees through what I call the “comparable benefit fiction,”  which allows an employer and union to deny bargaining unit employees all of the benefits and protections of the PSL law by including in their agreement a “comparable benefit.” One of the listed examples of a comparable benefit” is “holiday and Sunday time pay at a premium rate.” That premium time on holidays and Sunday is not comparable to paid sick leave is self-evident. Beyond that, the law does not define “premium rate”, does not require that an employee ever be offered the opportunity to earn that premium and does not even require that the employer be open for business on a holiday or Sunday! Help me understand that one.

The “County of Albany” will enforce the law. Employees must file a complaint with the County within one year of when the employee knew or should have known of the alleged violation. An employee  may bring a civil action after 120 days have passed from either the filing or the final County action.

The other three counties to have enacted a PSL law are Montgomery County, MD, Cook County, IL and Westchester County, NY.