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.

Extraterritorial Reach of Minneapolis Sick Time Ordinance Rejected, Yet Again

When we last left the Minneapolis PSL law, the Minnesota Court of Appeals had affirmed a district court decision temporarily enjoining Minneapolis from enforcing its Sick and Safe Time Ordinance against businesses outside the City limits.  The Supreme Court of Minnesota in December 2017 declined to review the Court of Appeals’ decision, which left the appeals decision in place.  The Ordinance went into effect on July 1, 2017 with regard to businesses within the City limits only.

Since those decisions dealt only with the request for a temporary injunction, the case continued on the plaintiff’s further request that the Minneapolis PSL law be permanently enjoined because it was preempted by state law and because its purported application to businesses outside the City whose employees work within the City exceeded the City’s legislative authority.

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To attempt to address the territorial issue, in March 2018, the City amended its ordinance in two respects. Under the Ordinance, an employee who works in Minneapolis at least 80 hours per year is entitled to accrue PSL time. 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.” Continue reading

Duluth Paid Sick Time Bill Has Unique Accrual Rate

In nearly all duluth-minnesota-170208_1920paid sick laws nationwide, employees accrue PSL time at the rate of one hour per either 30 or 40 hours worked. A couple peg the accrual rate at one hour for every 35 hours worked.

Now comes Duluth, Minnesota, where the City Council is debating a proposed Earned Safe and Sick Time ordinance. The Council approved an amendment earlier this week which allows employees to accrue PSL time at the rate at one hour for every 50 hours worked. If the proposal is ultimately enacted, Duluth’s accrual rate will be its unique contribution to the vast and complex PSL patchwork.

 

Three More Intervene in Austin Sick Time Litigation

Add three more voices to be heard in the case challenging the Austin Earned Sick Time Ordinance. Last week, 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.

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Last month, a cadre of business interests filed a lawsuit seeking to enjoin implementation of the ordinance, which is scheduled to go into effect on 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 TMWA requires Texas employers to pay employees a minimum wage established by the federal Fair Labor Standards Act (FLSA). The State of Texas has already intervened in the case, arguing only that the Ordinance was preempted by the TMWA. My prior posts on this PSL litigation are here and here.

New Jersey Adds Paid Sick Leave, Cancels Thirteen Municipal PSL Ordinances 

With the stroke of his paid sick leave pen, New Jersey Governor Phil Murphy yesterday made the Garden State the tenth in the nation to enact a PSL law and also canceled—preempted is the legal term—13 municipal PSL laws within the state. The new state law takes effect in six months, at which time the 13 municipal laws will meet their collective demise.
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Due to that collective demise, the number of PSL laws nationwide will decline by about a third. This is only the second time in PSL history that the number of PSL laws has declined. The first occurred in 2011 when Wisconsin’s preemption law negated Milwaukee’s PSL ordinance.

With the addition of the New Jersey PSL law, the vast and complex PSL patchwork will consist of laws in 10 states, the District of Columbia, 2 counties, and 18 municipal laws.

Texas Joins Challenge to Austin Sick Time Ordinance

The State of Texas yesterday requested to intervene in the lawsuit brought by a cadre of business interests challenging the validity of the Austin Earned Sick Time Ordinance. While the lawsuit seeks to invalidate the ordinance on both preemption and constitutional grounds, in its plea to intervene, Texas argues only that the Austin ordinance is preempted by the state Minimum Wage Act (MWA).  That law requires Texas employers to pay employees a minimum wage established by the federal Fair Labor Standards Act (FLSA).

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The State’s preemption argument is very similar to that made by the plaintiffs in the lawsuit: that the MWA supersedes a wage established by a municipal ordinance, and that the Austin ordinance establishes a wage because it goes beyond the FLSA in two respects: it requires employers to pay wages for hours not worked and that employee pay be based on the hour or day rather than a work week.

Dallas and San Antonio will likely follow this case very closely since petition drives are underway in both cities to have voters consider paid sick time initiatives in November.

Albany County Sick Leave Bill Shortchanges Union Employees

Add Albany County (NY) to your PSL-watch list. The County’s Paid Sick Leave Act was introduced in March and referred to the Legislature’s Law Committee.

The bill shortchanges union-represented employees through what I call the “comparable benefit fiction.” That section of the bill 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 of the listed examples of a comparable benefit” is “holiday and Sunday time pay at a premium rate.”

That premium time on holidays and Sunday is not comparable to paid sick leave is self-evident. Beyond that, the bill does not define “premium rate” (an extra dime an hour?) and does not require that an employee ever be offered the opportunity to earn that premium. It does not even require that the employer be open for business on a holiday or Sunday! While a non-union employee will no longer need to choose between his or her own or a family member’s health and a paycheck, because of the comparable benefit fiction, a union-represented employee may need to continue making that choice.

The New York City Earned Sick and Safe Time Ordinance and the Westchester County (NY) PSL bill have the same provision. Given that unions are strong advocates of PSL laws and that New York State has the largest percent of union-represented workers of any state in the country (25.2%), this is inexplicable.  Help me understand that one.

As for the PSL benefit, the Albany bill has the typical PSL architecture: employees 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, lesser and phased-in amounts for smaller employers.

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.

 

Austin Earned Sick Time Ordinance Unenforceable, Suit Says

No need for a new Texas law to preempt the Austin Earned Sick Time Ordinance because it is already preempted and unconstitutional, according to a lawsuit filed Tuesday by a cadre of business interests.  The lawsuit launches three broad challenges to the Austin ordinance and seeks to enjoin it from ever going into effect. It alleges that the ordinance:

  • is preempted by the Texas Minimum Wage Law which requires employers to pay the federal minimum wage under the FLSA and the FLSA does not require employers to pay for time not worked as the Austin PSL ordinance does;
  • violates the due process clause of the state constitution because the “articulated governmental interests are factually unsupported,” “…its mandates “have no rational connection to furthering those interests” and even if they did, the mandates are “so burdensome as to be oppressive in light of the alleged governmental interest”; and
  • violates the state constitution’s equal protection clause because it allows employers and unions to modify the yearly cap in their labor contracts but does not afford non-union employers the right to modify the cap.

The lawsuit alsaustin-247_1920o alleges that the section of the Austin ordinance that allows for administrative subpoenas is an unconstitutional search and seizure because it does not provide for “judicial review before being required to comply” with the subpoena.

On May 29, 2018, a hearing will be held on the plaintiff’s request for a temporary injunction, according to the suit.

 

 

 

Duluth Paid Sick Time Law Advances

The Duluth, Minnesota City Council Monday night approved a handful of amendments to the proposed Earned Sick and Safe Time Ordinance. The amended bill will get a second reading at the Council’s May 14 meeting.

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Monday night’s amendments to the proposed ordinance include:

  • changing the accrual rate to one hour for each 40 hours worked (from one for each 30 hours worked);
  • allowing an employer to frontload the 40 hours to avoid accruing time throughout the year;
  • expanding the definition of “family member” to include someone is not a family member but “is the equivalent of a family relationship”;
  • acknowledging an employer’s right to discipline an employee when an employee’s use of time under the ordinance “is not in good faith, such as a clear instance of abuse,” except that an employer may not, as discipline, “deduct from an employee’s legitimate earned sick and safe time.”
  • replacing the blanket exclusion from the ordinance of all employees covered by a collective bargaining agreement with a narrower exclusion applicable to the construction industry only;
  • adding a requirement to “develop and implement a culturally specific outreach and community engagement program to educate employees and employers about their rights and obligations” under the law.

The Duluth sick and safe time effort has been in the works for a few months short of two years. In July 2016, the City Council passed a “Resolution Establishing Earned Sick and Safe Time Task Force.”  That task force submitted its recommendation to the City Council last fall.