Bernalillo County (NM) to Vote on Sick Leave Ordinance Today

A vote on the Bernalillo County (NM) Sick Leave Ordinance is on the agenda for today’s Board of County Commissioners meeting. The proposed ordinance applies to employers in the unincorporated limits of the County, which excludes the  City of Albuquerque.

The County ordinance has the typical PSL architecture: employees accrue PSL at the rate of one hour for every 30 hours worked to a maximum of 56 hours annually. An employee can carryover up to 56 unused hours.  It has some nuances, as most PSL laws do. In addition to including a broad definition of “family member,” this ordinance allows an employee to designate an addition individual to care for.  It also allows a successful plaintiff to recover liquidated damages equal to “three times the value of the earned sick time accrued.”

While it is always a challenge to handicap the likelihood of a PSL ordinance passing,  the stars seem aligned for this ordinance to pass. The five member Board of County Commissioners has four Democratic members., two of whom–the Chair and Vice-Chair–have sponsored this ordinance.  I’ll blog tomorrow about the outcome in Bernalillo County today.

Excessive Absence Day Today; Some Likely Fraudulent

It’s likely that some employees in your workforce called out sick today because they were watching the Game of Thrones finale last night. A recent study found that more than 10 million employees.will not report to the office today due to activities related to the Game of Thrones finale. If that occurs, the finale will join the Super Bowl and Oscars as entertainment events that instigate widespread absenteeism the day after.screen-310714_1280

Some percent of this group will likely report that they cannot come to work because they are sick when, in fact, they are not. No law protects an employee who reports fraudulently that he or she cannot come to work due to illness. The challenge, of course, is proving fraud.

Logic suggests an employer might ask the employee for a more detailed explanation of the reason for the employee’s illness to flesh out the employee’s explanation. Doing so would be unlawful in jurisdictions with a PSL law. The EEOC may view such inquiries as violating the ADA as well.

Logic also suggests an employer would require the employee to produce a doctor’s note substantiating the reason for the absence. Alas, that’s not allowed either. The various PSL laws prohibit an employer from requiring an employee to produce a doctor’s note unless the employee has been out three (or, under some laws, more than three) consecutive workdays. Even when a doctor’s note is allowed for a day here/day there absence, a note stating that the employee was absent for medical reasons, which is woefully unsatisfying when dealing with suspected fraud, is sufficient.

I have argued for some time that insufficient ink  is devoted in PSL laws to the fraudulent use of sick days. Few statutes acknowledge the issue; none give employers effective tools to deal with it. Which leads me to question whether PSL proponents believe, to paraphrase their mantra, that no one should have to choose between missing a paycheck and watching the Game of Thrones finale!

 

Amended Minneapolis Sick and Safe Leave Law Upheld on Appeal

The Minneapolis Sick and Safe Time Ordinance can be enforced against businesses not physically located in the city but who have employees who work at least eight (80) hours in a year within the geographic boundaries of the city, according to a state appellate court decision last week. The court also held that the Minneapolis ordinance was not preempted by a state law allowing employees to use their sick leave benefits to care for ill or injured family members and for safe time.

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A cadre of business interests brought the legal challenge to the Minneapolis ordinance in January 2017, months before the ordinance went into effect on July 1, 2017. The initial court decisions enjoined the city from enforcing its PSL law against employers who did not have a physical presence in the city. To address this issue, in March 2018, Minneapolis amended its ordinance by narrowing its application to such “extraterritorial” employers. The amendments added that employees accrue PSL time for hours worked “within the geographic boundaries of the city” and could use that time only when scheduled to work “within the geographic boundaries of the city.” These amendments, the city argued, salvaged the Ordinance’s extraterritorial provisions.

Last week, the court of appeals agreed, reversing a state district court decision a year ago which had rejected the Ordinances’ application to businesses outside the city limits.

 

Dallas Undeterred, Adds to Paid Sick Leave Turbulence in Texas

Undeterred by an appellate court’s decision that the Austin Earned Sick Time Ordinance  is unconstitutional. Undeterred by the passage in the state Senate of two bills to bar political subdivisions from enacting a PSL ordinance. Undeterred by the failure of PSL supporters to collect sufficient valid signatures to allow Dallas voters to consider a PSL ballot initiative last November. Undeterred, the Dallas City Council yesterday passed an Earned Paid Sick Time Ordinance, adding to the PSL turbulence in Texas.

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While there are serious doubts about whether the ordinance will ever become effective, by its terms it is effective August 1, 2019 for employers with at least five employees (the same effective date as the San Antonio PSL ordinance) and two years later for employers with less than that.

The ordinance has the typical PSL architecture. Employees accrue an hour of PSL for every 30 hours worked to a maximum of 64 hours annually for employers with more than 15 employees and a maximum of 48 hours annually for smaller employees. The ordinance has the provision unique to the Austin and San Antonio ordinances that an employer need not allow an employee to use PSL on more than eight days a year.

 

Michigan Supreme Court to Consider Request for Advisory Opinion on Paid Medical Leave Law

The Michigan Supreme Court will wade into the clash involving the constitutionality of the state’s Paid Medical Leave Act, at least to decide whether to consider the substance of that clash. In response to requests by both legislative chambers for an advisory opinion on the legality of the recently enacted state PSL law, the court scheduled a hearing on July 17, 2019. The first of three questions listed in the Court’s Order is whether it should exercise its discretion and issue the requested advisory opinion.In Michigan, a legislative chamber or the governor may ask the Supreme Court to issue an advisory opinion on “important questions of law upon solemn occasions as to the constitutionality of legislation….”

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The other two questions for which the Court solicited briefs concern the process-used to enact the PSL. PSL proponents had collected enough signatures to have voters decide in November 2018 whether to enact a PSL initiative. The Michigan Constitution gives the legislature the option to enact such an initiative, negating the need for a vote on it.  Both legislative chambers, both with GOP majorities, had concerns about the substance of the PSL bill. They decided to enact the voter initiative and then amend it. This strategy was adopted because amending a statute enacted by the legislature requires a majority vote in each legislative chamber while amending a statute enacted by a voter initiative requires a three-fourths vote of each chamber.  The urgency to implement this strategy increased in November when voters elected a Democratic governor who would take office in January and would likely veto the effort to amend the PSL law.

Last Fall, the legislature enacted the initiative and a few months later amended it. In December, lame duck GOP Governor Rick Snyder signed the amended bill.

The Supreme Court has asked the parties to brief whether the legislature may “enact an initiative petition into law and then amend that law during the same legislative session” and whether the PSL and minimum wage laws were enacted in accordance with the constitutional provision concerning voter initiatives.