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.
A PSL-hat tip to Cook County!
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.
The crumbling of the Cook County Earned Sick Leave Ordinance into merely one-fifth of its original reach started with an asterisk. On November 23, 2016, I titled my post: “Cook County Paid Sick Leave Gets Barrington Asterisk.” A few weeks later, Rosemont opted out, so I gave it an asterisk, this time including an image of a red asterisk. A week or two later, Oak Forest opted out, so I added three asterisks to the post. Sensing a potential swarm of asterisks, I abandoned that approach and thank goodness I did. Had I continued, this is how many red asterisks I would be including in my posts about Cook County opt outs.
My nix list now has 106 entries, more than 80% of the County’s political subdivisions. The latest additions are Calumet City, Forest View, Harvey, Hazel Crest, Markham, Sauk Village, Stone Park and Westchester. The list of municipalities on my watch list is down to five.
I suspect we will soon transition from watching the opt-outs to watching the litigation concerning the opt-outs. A Cook County Commissioner has said that the County is planning to file a lawsuit challenging the ability of some or all of the municipalities to opt out.
As the first half of 2017 came to a close, Practical Law asked me to prepare a mid-year checkup on PSL developments. Thanks and a PSL-hat tip to Practical Law for that opportunity. Here is a link to the June 27 mid-year checkup.
Since that checkup…
- Rhode Island remains in a budget stalemate. If PSL is to pass there, it will likely be in conjunction with resolving that stalemate. This means that the wait for State Number Eight to enact a PSL law continues. It is unlikely that a state legislature other than Rhode Island’s will enact a PSL law this year.
- About 80% of Cook County’s political subdivisions, more than 100 of them, have opted out of the County Earned Sick Leave law. I have renamed the law “[The 20% of] Cook County Earned Sick Leave Ordinance.” A Cook County Commissioners said the County will file a lawsuit in response to the widespread rejection of its Ordinance.
- Albuquerque PSL supporters hope an October ballot initiative will offer voters the option between approving a seven-page Healthy Workforce Ordinance or authorizing the City to “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.” Recall my observation that any time voters are asked if they would like more paid time off from work, they will say “yes.” A lawsuit claiming that the HWO amounts to unconstitutional logrolling is still pending. My post about the Albuquerque litigation is here.
Just about all state legislatures have concluded their sessions this year. 3Q 2017 developments are likely to be from PSL litigation and ballot initiatives.