Rhode Island is “State Number Eight” to Pass Paid Sick Leave Law

The wait for “State Number Eight” to pass a paid sick leave law is over. Rhode Island has claimed that title.

The Rhode Island General Assembly convened yesterday for a “cleanup session” to deal with some bills that were pending when the regular session ended. During the regular session, both the Senate and the House had passed paid sick leave bills, but the session ended before they were reconciled. Yesterday, both the House and the Senate passed a compromise bill. Governor Gina Raimondo has said previously that she supports paid sick leave and is expected to sign the bill, which would be effective July 1, 2018.eight-33992_1280

A few observations about the bill:

  • Employees accrue one hour of leave for every 35 hours worked. In the other states, the accrual rate is one hour for every 30 or 40 hours worked.
  • The maximum annual accrual ramps up from 24 hours in 2018, to 32 in 2019, and to 40 for later calendar years.
  • For a foreseeable need to use leave, the bill requires employees “to schedule the use of sick and safe leave time in a manner that does not unduly disrupt the operations of the employer,” a concept in the Americans with Disabilities Act.
  • Meeting the “safe harbor” requirements will likely be easier compared to other states because employers who offer the required amount of annual time off are excused from complying with some of the bill’s procedural requirements.
  • The bill has the most comprehensive provisions concerning fraudulent use of PSL of any PSL law in the country.
  • The bill makes Rhode Island a preemption state. A “uniformity” clause prohibits municipalities from requiring employers to provide more paid sick and safe time than is required by the bill.

The Rhode Island bill is the first PSL bill of 2017. Albuquerque voters will be voting on a PSL initiative in two weeks, on October 3.

Arizona’s Preemption Law Unconstitutional, Court Rules

Arizona’s 2016 law prohibiting its political subdivisions from regulating employee benefits and “non-wage compensation,” is unconstitutional because it contradicts a 1998 law passed by voters which limits the legislature’s ability to modify voter-approved initiatives, according to a decision last week by Maricopa County Superior Court Judge Joshua D. Rogers.

The 1998 law, the Voter Protection Act, prohibits the legislature from amending or superseding a voter-approved initiative unless the proposed law “furthers the purposes” of the initiative and is approved by three-fourths of both the House and the Senate.

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In 2006, Arizona voters approved Proposition 2002, which states in part, “a county, city or town may by ordinance regulate minimum wages and benefits within its geographic boundaries” but may not reduce the minimum wage below that required by state or federal law.

Ten years later, the state passed its preemption law, which states in part: ‘The regulation of employee benefits, including nonwage compensation, paid and unpaid leave and other absences, meal breaks and rest periods, is of statewide concern. The regulation of non-wage employee benefits pursuant to this chapter and federal law is not subject to further regulation by a city, town or other political subdivision of this state.” This bill did not garner a three-quarters margin in either legislative chamber.

The court rejected the State’s claim that Proposition 202’s allowing a political subdivision to regulate wages and benefits did not contradict the preemption law’s prohibiting a political subdivision from regulating wages and benefits. The court said that these “two statutes cannot be harmonized because [the preemption statute] expressly prohibits that what [Proposition 202] expressly permits.”

Arizona voters enacted the Fair Wages and Healthy Families Act last November. It went into effect on July 1, 2017. Last week’s decision creates the possibility that an Arizona city or town or other political subdivision could enact a more generous paid sick leave law.

The State must decide whether to appeal the decision.

 

Minnesota Governor to Veto Paid Sick Leave Preemption Bill

Minnesota DFL Governor Mark Dayton said he would veto the Uniform Labor Standards Act, the bill passed by the Minnesota legislature which would preempt municipalities from enacting a sick leave law, among other employment regulations.  In a statement, the Governor said, in part: “It is unconscionable that Republican legislators would pit the earned financial security of hardworking state employees and retirees against the rights of local officials to make the decisions for which they were elected by their citizens….”

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MN Governor Mark Dayton

Since the bill did not pass either chamber by a two-thirds margin—the margin needed to override the Governor’s veto—the veto effectively kills the preemption bill. The bill would have voided the Minneapolis and St. Paul Sick and Safe Time ordinances, both scheduled to go into effect on July 1, 2017.

The Governor’s veto does not end the Minnesota PSL Melee, described here. His veto leaves the fate of the Minneapolis and St. Paul PSL ordinances in the hands of the judicial system.  In mid-January 2017, a Hennepin County District Court enjoined implementation of the Minneapolis ordinance with regard to employers located outside of the city’s geographical boundaries but denied the injunction with regard to employers within those boundaries.  My post about that decision is here. An appeal of that decision is pending in the Minnesota Appellate court.  The outcome of that appeal would also likely affect Duluth, where an Earned Sick Leave Task Force has been studying the issue and holding hearings in anticipation of making a PSL recommendation to the City Council.

Litigating Paid Sick Leave in the Land of Enchantment

Two paid sick leave lawsuits are pending in New Mexico, the Land of Enchantment. Both deal with the effort to have a voter referendum in Albuquerque in October 2017 on a local Healthy Workforce Ordinance (HWO).

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Albuquerque

One lawsuit deals with how the HWO must be presented on the ballot. A district court judge ruled last fall that the entire seven page ordinance must be on the ballot; a summary was not sufficient. An appeals court earlier this month rejected the HWO proponents’ request that an appeals court review that issue while the case is still pending in the district court. Apparently the seven page ordinance could fit on a double-sided one page ballot, according to one report. Watch for arguments by HWO opponents concerning appropriate margins and font size.

In the other lawsuit, a cadre of business interests claim that the HWO is unconstitutional “logrolling” because it combines multiple issues on the ballot, depriving voters of the opportunity to vote separately on each one. My post on that lawsuit is here.  Last December, an Arizona court had rejected an analogous “single subject” argument challenging the state-wide PSL ballot initiative held last November. Earlier this month, a Washington court reached the same result in a case challenging its state-wide PSL ballot initiative held last November.  My posts on those decisions are here and here.

On a Land of Enchantment PSL preemption note, the Uniformity of Employment Law Terms had been introduced in the New Mexico Senate this legislative term but died in committee when the session ended.  Senate Bill 488 would have prevented political subdivisions from enacting paid sick leave laws, among other employment terms.

Paid Sick Leave Preemption Showdown in Minnesota

The Minnesota paid sick leave melee intensified last week when the state Senate passed the Uniform Labor Standards Act, a preemption bill barring municipalities from requiring private employees to provide paid sick leave and other employment standards. The House passed a very similar bill in March.  Once the bills are reconciled, the final version will be sent to DFL Governor Mark Dayton for his signature. The Governor has not taken a public position on the bill.

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If signed by the Governor, the bill would void the Minneapolis and St. Paul Sick and Safe Time ordinances, both scheduled to go into effect on July 1, 2017. As a practical matter, the bill would resolve the legal challenge to the Minneapolis ordinance pending in the Appellate Court and end the work of the Duluth PSL Task Force. The Minnesota melee would be over, at least for the time being.

If the Governor vetoes the bill, a two thirds vote in each chamber is needed to override that veto.  The bill did not pass either chamber by a two-thirds margin so an override is unlikely. Absent an override, the Minnesota melee will continue, with a decision by the Appellate Court likely to be the next event.

This is the second PSL showdown pending. As noted in an earlier post, the Maryland General Assembly send a PSL bill to Governor Hogan, who described it as “job-killing” and said it was “dead on arrival.” He has not yet acted on the bill. The General Assembly passed that bill with sufficient votes in both houses to override the Governor’s veto. Since the Maryland legislative session has ended, if the Governor vetoes the PSL bill, the override vote will not occur until January 2018, when the legislature reconvenes.

South Carolina Becomes a Paid Sick Leave Preemption State

Add the Palmetto State to the list of PSL preemption states. Governor Henry McMaster signed SB218 into law last week.  The law prohibits a political subdivision from establishing, mandating or otherwise requiring an “employee benefit,” defined as “anything of value that an employee receive from an employer in addition to wages.” Paid sick leave is listed as an example of an employee benefit.

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Arkansas and Iowa have already enacted PSL preemption laws this year. There are now 17 PSL preemption states.

I anticipate Georgia Governor Nathan Deal will sign HB243 soon. Georgia is already a PSL preemption state. HB243 amends the preemption law to prevent municipalities from requiring employers to provide “additional pay based on schedule changes,” a response to the growing interest in “secure scheduling” ordinances.

On the state PSL front, we continue to wait for State Number Eight. Maryland seemed to be in the forefront but if Governor Hogan vetoes the bill sent to him, as he has promised to do, the General Assembly will not have an opportunity to vote to overturn his veto until January 2018.

Of the other pending state PSL bills, those in Hawaii, Rhode Island and Nevada seem to be moving through the legislative process but it is too early to predict whether any of these will be State Number Eight.

Preemption Laws Outnumber Paid Sick Leave Laws This Year

Local paid sick leave laws and state laws preempting those laws are the duality of the PSL debate. The yin and yang of the issue. Judging by 2017 events, the momentum seems to have swung markedly toward state laws banning municipalities from enacting PSL bills.

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Within the past week, the governors of Arkansas (Act 643) and Iowa (HF 295) have signed into law typical PSL preemption bills, “typical” meaning that the law bars political subdivisions from enacting PSL requirements that exceed state or federal law.   Earlier this year, as I noted in an earlier post, Ohio joined the list of PSL preemption states.

That list is likely to have two more additions very soon. Both houses of the Georgia and South Carolina legislature have enacted PSL preemption bills. Both states have Republican governors.

On the PSL side of the duality, no local government has enacted a PSL law thus far in 2017, though a few are pending. On the state front, we continue to wait to see, and handicap, which state will become the eighth state to enact a PSL law.  In January, I posted that, applying my cryptic and always dangerous political analysis, described generally here, Maryland and Rhode Island were more likely than not to enact a PSL law this year. The Maryland legislative session ends in just a few days, on April 10. The Rhode Island session continues into June. But, as noted in my recent PSL quarterly report, PSL bills are pending in more than a dozen states so State Number Eight might not be either Maryland or Rhode Island.