Court Rejects Albuquerque Healthy Workforce Ordinance Challenge

One day after hearing argument on the challenges to the constitutionality of the proposed Healthy Workforce Ordinance, the judge rejected them all, clearing the way for the October 3 ballot initiative to proceed. Subject to an appeal, of course.

A cadre of business interests had claimed that the HWO violated the state constitution because it violated the “single subject” rule, i.e., was impermissible logrolling; exceeded a home rule municipality’s authority and the territorial reach of the City; and because ordinances may not be enacted by voter initiative. The Intervenor-Defendants, representing employees without earned sick leave and HWO proponents, had moved to dismiss all of these arguments.  In a 10 page opinion, District Court Judge C. Shannon Bacon granted that motion.

courthouse-1223280_640Last week, a judge in the proponents’ HWO litigation issued a decision concerning the logistics of the ballot.  With the HWO opponents’ litigation now dismissed, no obstacles stand in the way of the ballot initiative on October 3, approximately seven weeks from now, although appeals are possible in both litigations.

Regular visitors to my blog are familiar with my axiom about paid sick leave voter initiatives: whenever voters are asked whether they would like paid time off from work, they will say ‘yes.’ My axiom proved true in, for example, Arizona, Washington, Massachusetts, Milwaukee (since preempted), Oakland and San Diego, CA, SeaTac, Trenton and Montclair, NJ.  Will it hold true in Albuquerque as well?

Rhode Island Paid Leave Bill: See You in September!

The Rhode Island legislature last week passed a budget and a few other bills, and then left town, portending at least six more weeks of limbo for the proposed Healthy and Safe Families and Workplaces Act. The legislature will meet on September 19 to deal with various bills it left in limbo at the end of the regular session which, presumably, includes the paid leave bill.


Before a bill can be sent to the governor for her signature, the House and Senate must reconcile the versions each has passed.  Among the differences are the minimum number of employees an employer must employ to be covered by the Act, and the maximum number of paid hours an employee can accrue annually.

The wait for State Number Eight continues. I suspect that the Rhode Island legislature is the only legislature with any meaningful chance of passing a PSL bill in 2017.

Lucky 7 Wins Font Fight in Albuquerque

The text of the Healthy Workforce Ordinance will be printed on the October referendum ballot in 7 point font, not in the 8.5 font requested, a state district court judge ruled last week, according to a local newspaper report. Proponents of the HWO had filed an emergency motion to stop the City from printing the 7-point font ballot.  They had claimed a 7-point ballot was “illegible and [an] illegally-small font size.”dice-1934002_1280

The judge also rejected the City’s effort to include an “advisory” question on the ballot, according to that report. That advisory question asked whether the City should “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[].”

The judge said that the advisory question “employs semantically ‘loaded’ terms and clearly implies that the proposed (Healthy Workforce Ordinance) is not transparent, fair, wise or workable,” according to the newspaper report.

A second lawsuit challenges the constitutionality of the HWO. That complaint alleges that combining the HWO’s 14 “non-interdependent” provisions into one voter initiative is “logrolling” in violation of the state constitution. Logrolling, also known as the “single subject” rule, is defined in the lawsuit as “the presentation of double or multiple propositions to the voters with no chance to vote on the separate questions so that unpopular, unworkable or extreme new laws will be voted on, with a potentially popular idea.”  The City and other defendants have asked the court to dismiss the lawsuit. A hearing is scheduled for this Thursday, August 10. Courts in Arizona and Washington have rejected “single subject” rule challenges to their state paid sick leave law. My posts on those decisions are here and here.

Arizona Supreme Court Explains Rejection of Paid Sick Leave Challenge

The Arizona Supreme Court yesterday issued an opinion explaining its March 2017 rejection of a state constitutional challenge to Proposition 206, a ballot initiative approved by voters last November. Codified as “The Fair Wages and Healthy Families Act,” Proposition 206 increases the minimum wage incrementally and, effective July 1, 2017, requires most Arizona employers to provide paid sick days.

A cadre of business interests sued, claiming that the Proposition violated state constitution’s Revenue Source Rule, Separate Amendment Rule, and Single Subject Rule

In rejecting these arguments, the Court said that the Separate Amendment Rule only applies to proposed constitutional amendments, not to proposed statutory changes such as Proposition 206, and that the Single Subject Rule only applies to acts of the legislature, not voter initiatives.


The Court also said the Proposition did not violate the Revenue Source Rule because a “mandatory expenditure of state revenues” only occurs when it directly causes an expenditure of state revenue. The Court held that the Proposition directly causes an expenditure of state revenue only to implement and enforce the law and that, for those activities, the law states that they shall be funded by civil penalties paid by employers.

Based on this opinion, I am deleting the Arizona case from the PSL Litigation Docket.



A Font Fight in Albuquerque

The legal wrangling about presenting the proposed Healthy Workplace Ordinance to Albuquerque voters in October has been going on for about a year. One of the two lawsuits deals with the mechanics of presenting the proposal on the ballot. A judge had ruled that the entire seven page ordinance must be on the ballot and that a summary would not do. At the end of my post about that decision, I urged readers to watch for arguments concerning the ballot’s font size and margins.

Last week, HWO proponents filed an emergency motion to stop the City from printing the HWO on the ballot in 7-point font.  They claim a ballot in 7-point is “illegible and [an] illegally-small font size.” They argue that the font size should be at least 8.5-point to comply with federal voluntary ballot guidelines which, they claim, New Mexico has incorporated into its law.

Proponents also renewed arguments that the ballot should contain a summary of the HWO and that a “legible, large-text copy” of the ordinance be provided in each voting booth.


Split Decision in Counties’ Challenge to Oregon Sick Leave Law

Three of the nine counties that sued to be relieved from complying with the Oregon Sick Leave law– Linn, Douglas and Yamhill – have prevailed in their challenge. The other six plaintiff-counties have dropped their challenge. 

A Linn County judge last December agreed with the plaintiff-counties that Oregon’s Sick Leave Law is an unfunded liability. Round One to the plaintiff-counties. My report on that decision is here.


The Oregon Constitution states that if a local government must spend more than one hundredth of one percent of its budget on an unfunded new program or increased level of service, the local government “is not required to comply” with the law.  Round Two dealt with whether the counties met this spending threshold on the PSL law. A trial had been scheduled for mid-July to resolve that issue.

The case has been settled. The judge had ruled that Linn, Douglas and Yamhill had established the .01% threshold, according to a news report.  The other plaintiff-counties dropped their challenge. The State has reserved the right to appeal the judge’s decision that the Sick Leave Law is an unfunded liability.  

The Oregon Sick Leave Law requires employers with at least ten employees (six in Portland) to provide up to forty hours of paid sick leave annually. Smaller employers must provide unpaid sick leave. This litigation dealt only with the plaintiff-counties as employers. It did not involve private employers. 





Oregon “Emergency” Law Tweaks PSL Law

Declaring an “emergency” necessary “for the immediate preservation of the public peace, health and safety,” Oregon tweaked its PSL law recently. Let’s review the amendments. For each, you decide whether it was necessary to immediately preserve the public peace, health and safety, or whether declaring an emergency was legislative hyperbole.

  • An employer in a city with a population exceeding 500,000 (i.e., Portland) does not include an employer that maintains only a seasonal farm stand or a temporary, construction site trailer used for office purposes only.
  • An employer may cap the annual accrual of sick time to 40 hours. The original law did not have an accrual cap.
  • The definition of “employee” does not include certain corporate directors, members of a limited liability company, or partners in a limited liability partnership or their immediate family members.
  • seal-39732_640An employer may adopt a policy that both caps an employee’s total accrual to 80 hours and caps annual usage at 40 hours. It was unclear in the original law whether an employer’s policy could have both caps.
  • An employee paid a base wage plus piece-rate or commission shall be paid for sick time at the base wage or the minimum wage, whichever is greater.  The original law did not address how to pay these employees.
  • If an employer has a paid time off program that is “substantially equivalent to or more generous to the employee” than the requirements of the PSL law, the employer must comply with the law’s requirements “for the first 40 hours that the employer’s policy provides per year” and not beyond that.  In my view, this is the most significant of the tweaks and gives employers much-needed guidance on integrating PSL with a PTO program..

Oregon’s Sick Time Law has been in effect since January 1, 2016. The amendments dealing with hours worked and sick time accrued or used apply January 1, 2018. The remaining amendments went into effect on July 1, 2017.