After spending months last spring tracking the blitz of municipal opt outs from the Cook County Earned Sick Leave Ordinance, and after more than 80% of municipalities in the County were on my “nix list,” I had posted that we may have seen the end of the voting on the County’s ordinance. Alas, it was not to be.
Undeterred by the overwhelming rejection of its sick leave ordinance by its municipalities, the County Board of Supervisors last week decided to try a PSL end-around by taking the issue to the voters directly. The Board decided to include an advisory referendum question on the November 6, 2018 ballot to ask voters:
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?
The import of the question seems apparent. When asked whether they would like more paid time off, voters almost always say ‘yes.’ 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 County ordinance.
Earlier this year, two Cook County municipalities revisited their decision to opt-out of the earned sick leave ordinance. Western Springs voted to opt-in to the ordinance; Wilmette Village voted to continue to opt-out.
November is shaping up to be the PSL month of the year. In addition to the Cook County advisory vote, voters in Michigan and San Antonio will be voting on PSL ballot initiatives.
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.
None, though some introduced previously are still pending.
Paid Sick Leave Preemption Developments
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.
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).
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).
Other Paid Sick Leave Developments To Watch
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.
After opting out of the Cook County minimum wage and sick leave ordinances almost exactly a year ago, the Wilmette Village Board this week opted back in to the County minimum wage law but voted to “remain opted out” of the County’s Earned Sick Time Ordinance. More than 80% of the County’s 132 municipalities have opted out of the County Earned Sick Time Ordinance.
Wilmette Village (IL) Board of Trustees tonight will decide whether to opt in to the Cook County Earned Sick Time Ordinance from which the Village Board opted out last year. More than 80% of the County’s 132 municipalities have opted out of the County’s sick time ordinance. The Village of Western Springs (IL) recently became the first municipality to opt into the County ordinance after having opted out of it.
Regardless of the Board’s decision tonight, PSL kudos to the Village for the process leading to the vote. After opting out last year, Wilmette Village established a “working group” to study the paid sick leave (and minimum wage) issue. In April 2018, the group issued a comprehensive analysis of the impact of adopting PSL on employees, businesses and residents in the Village.
The aspect of the report that warrants significant kudos is its color-coded “framework for identifying a hierarchy of information” cited in the report, from the most to the least reliable information, and the weight to be given each type of information. For example, facts and data are coded green and given very high weight, while non-peer-reviewed studies by advocacy groups are coded yellow and given “moderate [weight], depending on availability of other, peer reviewed studies.”
I was impressed with this approach because, to state the obvious, all information is not of the same quality. There are facts, arguments, and statistics. To no one’s surprise, PSL studies inevitably support the view of the advocacy group that sponsored the study. Once such a study is published, others on the same side of the issue cite it as if it were gospel.
I was also impressed with the fact that the working group study analyzed all employee paid time off, not just sick time. Often, advocacy pieces cite that X percent of employees do not receive any paid sick time, suggesting that if a law is passed, everyone without sick time will get sick time, while omitting the fact that under all PSL laws, a “safe harbor” allows employers to use any existing paid time off—vacation, personal days, PTO– to satisfy the sick pay requirement.
In addition to PSL developments in Wilmette, today will be the second day of hearing in the lawsuit seeking to enjoin the Austin Paid Sick Leave Ordinance.
In the PSL-equivalent of “man bites dog,” the Western Springs, Illinois Village Board this week voted to opt in to the Cook County Earned Sick Time Ordinance from which it had opted out almost a year ago, according to a report.
More than 80% of the County’s 132 municipalities have opted out of the County Earned Sick Time Ordinance. As a result, employees who travel for work throughout the County likely go into and out of PSL-accrual regularly. That situation is one of the reasons I awarded Cook County the 2017 Paid Sick Leave Patchwork Award. See my post on that award here.
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.
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.
Could it be? Is it possible that we have reached the end? Have we seen the last opt out from the Cook County Earned Sick Leave Ordinance? I have yearned for this moment ever since the onset of the opt out onslaught.
Earlier this week, the Village of Deer Park opted out of the [20% of] Cook County Earned Sick Leave Ordinance. East Dundee opted out last week. My nix list has 108 entries.
Where do we go from here? To litigation, I suspect. None has been filed yet but it seems ineluctable. It might come from the County itself. A County Commissioner said earlier this month that the County may challenge the authority of some political subdivisions to opt out. It might come from an employer or cadre of business interests challenging the County’s authority to enact the Ordinance. Or it might come in an enforcement proceeding by the County. Issues of the County’s authority to enact the Ordinance and a political subdivision’s authority to opt out go to the heart of an employer’s liability for an alleged violation.
The Cook County PSL future is uncertain. But it is a pretty good bet that the [20% of] Cook County Earned Sick Leave Ordinance kerfuffle is far from over.