Injunction Denied in Austin Sick Time “Political Blood Fight”

Noting that the case “has the aroma of a good political blood fight,” a state district court judge yesterday denied the request of a cadre of business interests to enjoin implementation of the Austin Earned Sick Time Ordinance, scheduled to go into effect on October 1, according to a news report. The judge also ruled that the Texas Attorney General’s office could remain in the case as a plaintiff-intervenor but tossed the Workers Defense Project as a defendant-intervenor from the case, according to that report.

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The denial of the requested temporary injunction does not end the challenge to the Austin ordinance. The plaintiffs might appeal the district judge’s decision or proceed to litigate the substance of their claims.

PSL opponents are also anticipating a legislative fix. Texas Governor Greg Abbott has been vocal in his displeasure with local PSL laws (see here), raising the possibility that the legislature will enact a law preempting the Austin ordinance’ in its 2019 session. Texas preemption laws have recently banned local ride-share regulations, fracking bans and sanctuary cities.

There’s PSL-turbulence in the Lone Star State and plenty more to come. PSL proponents in Dallas and San Antonio hope to let voters decide in November whether to adopt a PSL ordinance.

Wilmette Village to Decide Whether to Opt In to County Earned Sick Time Law

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.

 

Paid Sick Leave Turbulence in Texas

There’s paid sick leave turbulence in the Lone Star State. Austin passed its PSL ordinance in February, the first PSL law in the South.   Last month, PSL advocates in San Antonio submitted signatures to support their effort to have voters decide in November whether to enact a PSL ordinance. And this week, PSL advocates in Dallas have submitted signatures in support of a similar November ballot initiative there.

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PSL opponents have been busy as well. In April, a cadre of business interests sued to enjoin the implementation of the Austin ordinance, which is effective in October. It claims the ordinance violates the state constitution and is preempted by the Texas Minimum Wage Law which requires employers to pay the federal minimum wage under the FLSA and does not require employers to pay for time not worked as the Austin PSL ordinance does.  The State of Texas has intervened in support of the minimum wage argument. PSL advocates have intervened to defend the ordinance.

Beyond that, Texas Governor Greg Abbott has been vocal in his displeasure with local PSL laws (see here), raising the possibility that if the Austin ordinance survives the litigation, the next threat to its existence may be a preemption law. Texas preemption laws have recently banned local ride-share regulations, fracking bans and sanctuary cities.

The first PSL ordinance in the South, two ballot initiatives, a PSL litigation cloud , and a possible preemption law combine to create PSL turbulence in Texas.

 

 

Paid Sick Leave Ballot Initiatives in Michigan and San Antonio

Voters in Michigan and San Antonio (TX) may have the opportunity in November to enact a paid sick leave law.  PSL proponents in both jurisdictions recently submitted what they claim are a sufficient number of valid signatures to support the initiative although neither initiative has yet to be formally certified. As I have posted often, when voters have an opportunity to vote for paid time off, the odds are very high that they will approve that measure.  Voters have rejected more paid time off only twice, in Denver (2011) and Albuquerque (2017).

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Michigan is not new to the PSL debate. In 2015, it enacted a preemption law prohibiting local governments from requiring an employer to provide paid or unpaid leave time. Efforts to enact a statewide PSL law through either legislation or a ballot initiative have been unsuccessful. The proposed PSL law which may be on the November 2018 ballot is here.

Pending legal challenges to the recently enacted Austin Earned Sick Time Ordinance will likely affect the San Antonio PSL effort. In April, a cadre of business interests filed a lawsuit seeking to enjoin implementation of the Austin ordinance, which is effective October 1, 2018.  They claim that the ordinance is preempted by the Texas Minimum Wage Act (TMWA) and violates various provisions of the state constitution. The State of Texas has intervened in the case, arguing only that the Ordinance was preempted by the TMWA. A few weeks ago, a workers’ rights organization, a restaurant and an electrician, together, intervened in the case and asked the court to dismiss the challenges to the ordinance.  The San Antonio proposed ordinance is modeled after, if not identical to, the Austin ordinance. My prior posts on this PSL litigation are here and here and here.

Duluth Passes Paid Sick Leave Ordinance

The Duluth (MN) City Council last night passed an Earned Sick and Safe Time Ordinance, requiring employers to allow employees to accrue an hour of leave for every 50 hours worked. The ordinance is effective January, 2020. The Council’s action came nearly two years after it created a task force to study and make recommendations concerning a PSL law in Duluth.

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A legal cloud hangs over the scope of the Duluth ordinance due to a state district court decision earlier this month rejecting a Minneapolis effort to require employers not located within the city limits to provide paid sick leave to their employees who work within the city.  The rejected provision would have required an employer not located within the city limits to allow an employee who works in Minneapolis at least 80 hours per year to accrue PSL time while working within the geographic boundaries of the city for use when the employee is scheduled to work within the geographic boundaries of the city.  The city has appealed the court’s decision.

The Duluth proposal requires employers located outside the city limits to allow its employees who work within Duluth “for more than 50 percent of the employee’s working time in a 12-month period” to accrue PSL time. Whether Duluth’s ordinance will be applicable to employers outside of its city limits will likely depend on the outcome of the litigation concerning the Minneapolis PSL ordinance.

For those following the relationship between jurisdictions enacting a paid sick leave law and their “blue” status, Duluth follows the established pattern. In the 2016 presidential election, just short of 60% of voters cast their ballots for Secretary Hillary R. Clinton.

 

Albany County Paid Sick Leave Public Hearing Tonight

The Albany (NY) County Legislature tonight will hold a public hearing on the paid sick leave bill it is considering. That bill entitles covered employees to 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, to lesser amounts for smaller employers. Here are a few issues I would like to see raised tonight.

  1. The bill states that ”[p]assage of this law guaranteeing paid sick time is necessary to ensure that all workers in Albany County” can address their own and their family’s health and safety needs. Yet, the bill does not guarantee any paid sick time to union-represented employees. It allows an employer and union to deny bargaining unit employees all of the benefits and protections of the PSL law by giving them a “comparable benefit,” one example of which is “holiday and Sunday time pay at a premium rate.”  Due to this “comparable benefit fiction” (see post here), union represented employees may still need to decide between their paycheck and their (or their family’s) health.
  2. The bill states that “the Legislature finds and determines that access to paid sick time promotes a healthy and safe county by reducing the spread of illness….” A recent study of the first two years of the New York City’s Paid Safe and Sick Leave Law found that “[f]ully 90 percent of employer respondents reported no change in the number of employees coming to work sick, with equal numbers (five percent) reporting a decrease and an increase.”  Why would the Albany County experience be different?
  3. The bill’s definition of “family member” includes “any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.” Once an employee, perhaps one with attendance issues, invokes this “like family to me” provision, how would an employer question that relationship?
  4. Shouldn’t a part time employee be required to at least try to schedule preventive care and other medical appointments during non-work time? The bill encourages part timers to schedule appointments during work time, even if they only work a day or two weekly.

Will Albany County ultimately pass a PSL bill? The County Executive is a Democrat, the legislature is solidly Democratic and almost 60% of Albany County voters cast their ballots for Secretary Hillary R. Clinton in the last presidential election.   While it is always dangerous to predict legislative outcomes, with this “blue” combination, the stars seem aligned for a PSL bill to pass. The legislature next meets on June 11.