Village Opts In to Cook County Earned 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.


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.


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!


The Last Cook County Earned Sick Leave Opt Out?

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.


From a Red Asterisk to [The 20%] of Cook County Earned Sick Leave Ordinance

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.

Paid Sick Leave Quarterly: 2Q 2017

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.


Searching for Words to Describe the Cook County Earned Sick Leave Fiasco

What words aptly describe the fiasco wrought by Cook County’s enacting its Earned Sick Leave and minimum wage ordinances last fall?  Though the State’s Attorney concluded that the County Commissioners “lacked the home rule authority” to enact such ordinances, the Commissioners were undeterred.

Now, more than 75% of the County’s political subdivisions have exercised their home rule prerogative to not comply with, or “opt out” of, the County ordinances.

Those searching for words to describe the situation may get some ideas by reading the recent memorandum from the Skokie Corporation Counsel to the Skokie Mayor and Board of Trustees, available here. Today, Skokie will discuss whether to “opt out” of the County’s PSL and minimum wage ordinances.  Some of the Corporation Counsel’s descriptive observations are below. I have added the italics.

  • The opt-outs have caused “unpredictability from community to community….[which have] rendered the Cook County Ordinances untenable.”
  • “The goals and purpose of the ordinances have been gutted by the reality of the situation.”
  • The Ordinances “have created a hodge-podge of regulations which create unfair competition between businesses from town to town.”
  • “The issue before the [Skokie] Village Board is no longer discourse concerning the importance and timeliness of minimum wage and sick leave ordinances, but rather, the questionable endorsement of a disparate patchwork of minimum wage and sick leave standards and the impact it will have on local business should Skokie, as one of a few municipalities, abide by the Cook County Ordinances.”
  • The “Skokie elected officials are faced with considering not the very merits of the ordinances, but the unfair and chaotic predicament resulting from the pre-emptive actions by other municipalities.”

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Two City Councils Holding Special “Opt Out” Meetings Today, the Last Day to Opt Out of Cook County Ordinances

After having nearly nine months to consider whether to opt out of the Cook County earned sick leave and minimum wage ordinances, and as the time ticks down to the final hours, the City of Evanston and Village of Oak Park have called for special meetings today, June 30, the very last day to opt out, to discuss the issues. Each municipality will consider adopting an ordinance opting out effective July 1, with a sunset date of July 11, just ten days later. The ten days seems intended to allow time in July to allow the city council of each municipality to have a more comprehensive discussion of the issues.hourglass-26111_1280

The Mayor of the City of Evanston, in an “Emergency Declaration,” said that the fact that two contiguous villages have decided to opt out within the past few days, and Oak Park may do so as well, would “constitute a fiscal emergency in the City of Evanston” that must be considered by the City Council.  The Village of Wilmette opted out earlier this week. According to the Mayor’s Declaration, the Village of Skokie “announced its intention to opt out” as well.

The Mayor of the Village of Oak Park said that he was calling a “special meeting” at the request of the business community, which has proposed opting out for a 90 day period to allow for a “community-wide” discussion.

On a related note, more nix. I have added Bensenville, Burnham, Country Club Hills, Lyons and Posen. My list now has 87 opt-outs. When the final tally is done, and the final ordinances are collected, there will be more than 90 opt outs! One hundred is possible.

Thanks and a PSL-hat tip to those who have emailed me with information about other municipalities that have opted out. The assistance is much appreciated.