Paid Sick Leave Quarterly: 3Q 2017

Updated October 4 to note rejection of Albuquerque Healthy Workforce Ordinance. 

As we start the last quarter of 2017, the vast and complicated patchwork of PSL laws consists of more than 40 laws: 8 state laws, the District of Columbia, 2 county laws and about 30 municipal or other political subdivision laws. As I said earlier this year, Rube Goldberg could not have devised such a  scheme.

Here is my 2017 third quarter PSL report. My reports for prior quarters this year are here and here.

Paid Sick Leave Laws Effective This Quarter

Paid Sick Leave Laws Effective After This Quarter

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Paid Sick Leave Bills Introduced This Quarter

Portland, ME. The Earned Paid Sick Time for Workers Ordinance has been introduced in the City Council and has been referred to the to the Health and Human Services Committee “for further research and deliberation.” The ordinance has the typical structure: 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.

Paid Sick Leave Preemption Developments

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.

Paid Sick Leave Litigation

 Challenges to state PSL laws

Arizona: The Arizona Supreme Court issued an opinion in August explaining its March 2017 one-paragraph ruling rejecting a constitutional challenge to Proposition 206, a ballot initiative approved last November which requires most Arizona employers to provide paid sick days. Arizona Chamber of Commerce & Industry et al v. State of Arizona et al (No. CV–16–0314–SA, August 2, 2017).

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 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. June 23, 2017).

Oregon: The lawsuit brought by nine counties challenging the Oregon Paid Sick Leave Law as applied to them as employers was settled in July 2017, though one issue was reserved for appeal. Under the settlement, three counties–Linn, Douglas and Yamhill–need not comply with the Oregon Paid Sick Leave law, subject to a change in the law’s funding or the counties’ cost of compliance with the PSL law. The other six plaintiff-counties must comply with the Oregon PSL law. The State has reserved the right to appeal the judge’s decision that the Sick Leave Law is a “program,” as that term is used in the state constitution. Linn County et al v. Katie Brown as Governor, et al (Or. Cir. Ct. 23rd Dist.).

Challenges to local PSL laws 

Minneapolis, MN:  The Minnesota Court of Appeals affirmed a January 2017 lower court decision that the Minneapolis Sick and Safe Time Ordinance applies to businesses within the City’s geographic boundaries but not to businesses outside the City limits.  The cadre of business interests that brought the lawsuit has said it will ask the Minnesota Supreme Court to hear the case, according to a newspaper report.  Minnesota Chamber of Commerce et al vs City of Minneapolis et al (Case No. A17-0131, September 18, 2017)

Pittsburgh, PA: An appellate court last May affirmed a lower court’s decision that Pittsburgh did not have the authority to enact its Paid Sick Days Act and invalidating that law. In June, the union filed an appeal with the Supreme Court of Pennsylvania. Pennsylvania Restaurant and Lodging Ass’n v. City of Pittsburgh and Service Employees Int’l Union, Local 32 BJ.  (Pa. Comm. Ct., 79-CD-2016, May 17, 2017).

Other Paid Sick Leave Developments To Watch

Albuquerque, NM: Voters yesterday narrowly rejected the Healthy Workforce Ordinance, which would have allowed employees to accrue paid sick time. 50.39% voted against the Ordinance.

Austin, TX: The Austin City Council voted in September to consider requiring private employers to offer paid sick leave to their workers.  Proponents hope to draft an ordinance by early 2018.

Duluth, MN: Last year, the Duluth, MN City Council created a task force to collect information, hold public hearings, and make recommendations to the City Council concerning a sick and safe time ordinance.  The task force posted online PSL surveys for employers and employees and recently posted its survey summary. The Task Force must make its recommendations no later than November.

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 2018.

 

Teacher Absence Study Finds Significant Disparities Based on Type of School

A recent study comparing teacher absence nationally should generate discussion in statehouses, school districts and bargaining tables across the country. It is a worthwhile read for any employer in any industry interested in factors that may affect employee absenteeism.

The study compared teacher absence rates between traditional district-run schools and charter schools and between non-union and unionized charter schools.   The study uses the term “chronically absent,” which it defines as a teacher who misses more than ten days a year for sick or personal leave. Absences for school holidays, summer vacation and professional development are not counted.teacher-23304_1280

Some of the studies’ conclusions are:

  • More than one-quarter of public school teachers in the United States (28.3%) are chronically absent.
  • Traditional public school teachers are almost three times as likely to be chronically absent as teachers in charter schools (28.3% vs. 10.3%).
  • The difference in “chronically absent” rates is largest where school districts must bargain collectively but charter schools are not required to.
  • Teachers in unionized charter schools are twice as likely to be chronically absent as teachers in non-unionized charter schools (17.9% v. 9.1%).

The study notes that it is “descriptive,” that it “can highlight revealing patterns in rates of teacher chronic absenteeism, but it cannot establish a causal relationship between any specific policy or factor and absenteeism.”

Yet, the study’s content leads the reader to cry out: help me understand the reasons for these disparities so our political leaders could address them.  I suspect there are many diverse views about the reasons for the disparities. Creating a consensus about the need for change or the nature of the change needed would be a significant challenge.

The study was done by the Thomas B. Fordham Institute, which is not connected with Fordham University.

 

 

Emergency Appeal to Nix Paid Sick Leave Vote in Albuquerque Rejected

The New Mexico Supreme Court has removed the remaining potential obstacle to an October 3 vote in Albuquerque on the Healthy Workforce Ordinance (HWO). The Supreme Court last Friday denied the “emergency” petition filed by a cadre of business interests, asking the Court to review a decision rejecting their arguments that the HWO was unconstitutional.  The Court rejected the petition “without prejudice,” suggesting that while the emergency aspect of the appeal was denied, the business interests may pursue their appeal on a non-emergency basis.

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With the ballot form approved by another court (see here), and the constitutional cloud cleared by the state Supreme Court, Albuquerque voters will go to the polls on October 3 to vote on whether they would like to accrue paid sick time at work.

While speculating is always fraught with peril, the odds suggest that Duke City residents will approve the HWO. Given the opportunity, voters have approved a ballot initiative giving them paid time off in all but one situation. The lone exception was in Denver in 2011.

No PSL laws have been enacted thus far in 2017.  That could change within the next few weeks.  In addition to the October 3 Albuquerque referendum, the Rhode Island legislature is convening on September 19 to consider numerous bills, including a PSL bill.

Employees’ “Sandwich Test” Sick Day Protest Unprotected, the “Equivalent of a Nuclear Bomb”

Posters hung in public places by fast food employees protesting their lack of sick days demonstrated “such detrimental disloyalty as to provide ‘cause’” for their discharge, a federal appeals court sitting en banc held recently. MikLin Enterprises, Inc. v. NLRB (8th Cir. July 3, 2017).

A union had been trying to organize employees of MikLin Enterprises, Inc., a Jimmy John’s Minnesota franchisee. During flu season, a group of employee/union supporters hung posters encouraging readers to support their effort to “win sick days.”

The poster featured photos of two identical sandwiches, noting that the sandwich on the left had been made by a “healthy Jimmy John’s employee” while the other had been made by a “sick Jimmy John’s employee.”  The poster stated that it was “too bad” if a reader could not tell the difference between the two sandwiches “Because Jimmy John’s Workers Don’t Get Paid Sick Days. Shoot. We Can’t Even Call in Sick.” The poster added: “We Hope Your Immune System is Ready Because You’re About to Take the Sandwich Test.”sandwich-311262_640-1

The poster’s “enduring image was a MikLin-made Jimmy John’s sandwich that, although appearing like any other, was filled with cold and flu germs,” the court said. “Allegations that a food industry employer is selling unhealthy food are likely to have a devastating impact on its business,” the court said, citing another court’s observation that such allegations are “the equivalent of a nuclear bomb in a labor-relations dispute.”

The National Labor Relations Board had held that the discharges were unlawful because the employees were engaged in protected concerted activity for their own mutual aid and protection. A three judge panel of the Eighth Circuit had upheld that decision. See my post here.

But the Eighth Circuit en banc court disagreed.  The NLRA ”does not protect such calculated, devastating attacks upon an employer’s reputation and products,” the court said.

A Week of Paid Sick Leave Vetoes

Maryland, Minnesota and now Nevada. Three paid sick leave-related vetoes within seven days.

On May 25, 2017, Maryland Governor Larry Hogan vetoed the PSL bill passed by the state General Assembly. Five days later, Minnesota Governor Mark Dayton vetoed the bill passed by the Minnesota legislature which would preempt municipalities from enacting a sick leave law, among other employment regulations. Then, on June 1, Nevada Governor Brian Sandoval vetoed the PSL bill passed by the legislatures.dislike-157252

My posts about the Maryland and Minnesota vetoes are here and here.

Governor Sandoval’s veto means that the wait for PSL State Number Eight continues. I had speculated previously that the stars seemed aligned for a PSL law in Rhode Island given that the governor is a Democrat, Democrats have overwhelming majorities in both the House and the Senate, and neighboring Connecticut and Massachusetts already have PSL laws.   However, the Rhode Island House bill remains in committee.

It has been seven months since any paid sick leave bill has passed anywhere in the country, although five PSL laws become effective July 1, 2017 (Arizona, Cook County, Chicago, Minneapolis and St. Paul).

As Deadline Looms, More Cook County Sick Leave Opt Outs

The end is near. Cook County political subdivisions have just one more month, until July 1, to opt out of the county Earned Sick Leave Ordinance. Add five more to the nix list: Berkeley, Harwood Heights, Niles, Northbrook and Summit.

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About three dozen of the approximatley 130 municipalities within the county –almost 30%–have opted out. More will do so before the County ordinance’s July 1, 2017 effective date.

I have listed the Cook County “opt-outs” on the PSL Laws and Resources page of my blog, just below the link to the Cook County Ordinance.

Cook County enacted the ESL Ordinance in October 2016. Generally, it requires covered employers to allow employees to accrue one hour of paid sick leave for every 40 hours worked. My posts about that Ordinance are here and here.

Georgia Paid Sick Leave Law Does Not Require Paid Sick Leave

No, Georgia, is not State Number Eight to require employers to provide paid sick leave law.  Rather, a new Georgia law regulates the paid sick leave policies of employers that choose to provide paid sick leave.

The law requires an employer with at least 25 employees to allow an employee to use up to five days of earned sick leave to care for an immediate family member. That latter term includes an employee’s “child, spouse, grandchild, grandparent, or parent or any dependents as shown in the employee’s most recent tax return.”

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The law states that it does not “require an employer to offer sick leave.” It also states that it does not create a new cause of action against an employer so it is unclear how this law will be enforced.

Other states, including California, Connecticut and Illinois, have enacted similar laws. Georgia’s law is unique in that it exempts any employer “that offers to their employees an employee stock ownership plan.” Of the many laws dealing with paid sick leave, and the many laws exempting certain employers, I do not recall ever seeing this exemption. It is unclear to my why an employer’s providing a benefit that does not deal with paid sick leave would exempt an otherwise covered employer from a paid sick leave law.