The Paid Sick Leave Patchwork Comes to Congress

A few months shy of five years ago, I predicted in a blog post the development of the paid sick leave patchwork . I wrote then:

If you look out toward the leave-and-attendance legislation horizon, and you might have to squint a bit but not much, you can see yet another patchwork beginning to take shape. This one is on paid sick days. Multi-state employers need to watch this carefully since it is certainly heading for full-fledged “patchwork” status which, when combined with the patchworks of family and medical laws, pregnancy leave laws and disability discrimination laws, makes one mega-leave-and-attendance-patchwork!

The now full-fledged PSL patchwork has arrived in the hallowed halls of Congress. Two days ago, a House Subcommittee on Health, Employment, Labor and Pensions held a hearing on workplace leave policies. In his opening statement, Subcommittee Chair Rep. Tim Walberg (R-MI) acknowledged the patchwork: Continue reading

An Escape from the Paid Sick Leave Patchwork?

Imagine there’s no local, county or state paid sick leave laws. It isn’t hard to do,  if federal bill H.R. 4219, introduced last week, gets enacted. With the latest human resources portmanteau in its title, the Workflex in the 21st Century Act would expand ERISA preemption to annihilate the patchwork of paid sick leave laws for any employer who elects to opt out of those 40+ PSL laws by opting into this law. The ultimate PSL opt out!

How does an employer escape from the PSL patchwork? By voluntarily adopting a written “qualified flexible workplace arrangement” (QWFA) that provides the required minimum amount of “compensable leave” and by offering employees at least one of the listed “workflex options.”  ERISA would preempt state or local laws that relate to a QWFA plan with regard to employees covered by such an arrangement, according to the bill.

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The required amount of compensable leave varies depending on the size of the workforce and an employee’s length of service.  Employees with less than five years of service must receive from 12-16 days, depending on the workforce size. Those with longer service must receive from 14-20 days.  Leave is pro-rated for part-time employees. Unlimited PTO policies are “deemed” to satisfy the compensable leave requirement.   An employer can get credit toward these minimums for up to 6 paid state or federal holidays.

The QWFA must offer all employees at least one flexibility option though it need not be the same option for all employees.  An employee’s acceptance of the option is voluntary and the employee can withdraw from it. The choices are:

  • A biweekly work schedule of 80 hours over two weeks with the employee receiving overtime after those 80 hours rather than after 40 hours in a week (state and local laws that require an employer to pay overtime other than as set forth in this law for an 80 hour, two-week schedule would be preempted).
  • A “compressed work schedule” in which an employee works longer hours on fewer workdays, i.e., 4-10 hour shifts (here also, any state or local law that requires overtime for such a schedule other than as set forth in this law would be preempted).
  • Job sharing, in which a job is shared among two or more employees.
  • Flexible scheduling, in which an employee’s regular schedule is modified.
  • Predictable scheduling, in which an employer provides a work schedule “with reasonable advanced notice” that is subject to “as few alterations as are reasonably possible.”
  • Telework, allowing work to be done somewhere other than the normal place of business.

The bill has been referred to U.S. House Committee on Education and the Workforce. Given the political environment in our nation’s capital, a prediction about this or any other bill is pure speculation. But given the dramatic impact this bill would bring to American workplaces, for those in the leave management community, this is one to watch.

Note: For my paraphrasing of some popular lyrics in the first two sentences of this blog, thanks and a PSL hat-tip to John Lennon.

 

Paid Sick Leave Quarterly: 3Q 2017

As we start the last quarter of 2017, the vast and complicated patchwork of PSL laws consists of more than 40 laws: 8 state laws, the District of Columbia, 2 county laws and about 30 municipal or other political subdivision laws. As I said earlier this year, Rube Goldberg could not have devised such a  scheme.

Here is my 2017 third quarter PSL report, updated to note Albuquerque voters’ rejection yesterday of the Healthy Workforce Ordinance.

Paid Sick Leave Quarterly: 3Q 2017

Updated October 4 to note rejection of Albuquerque Healthy Workforce Ordinance. 

As we start the last quarter of 2017, the vast and complicated patchwork of PSL laws consists of more than 40 laws: 8 state laws, the District of Columbia, 2 county laws and about 30 municipal or other political subdivision laws. As I said earlier this year, Rube Goldberg could not have devised such a  scheme.

Here is my 2017 third quarter PSL report. My reports for prior quarters this year are here and here.

Paid Sick Leave Laws Effective This Quarter

Paid Sick Leave Laws Effective After This Quarter

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Paid Sick Leave Bills Introduced This Quarter

Portland, ME. The Earned Paid Sick Time for Workers Ordinance has been introduced in the City Council and has been referred to the to the Health and Human Services Committee “for further research and deliberation.” The ordinance has the typical structure: employees working in Portland would accrue one hour of sick time for every 30 hours worked, to a maximum of 6 days annually. If enacted, the Ordinance would be effective July 1, 2018.

Paid Sick Leave Preemption Developments

Rhode Island: The Healthy and Safe Families and Workplace Act, passed in September, has a “uniformity” clause which prohibits municipalities from requiring employers to provide more paid sick and safe time than is required by this law.

Paid Sick Leave Litigation

 Challenges to state PSL laws

Arizona: The Arizona Supreme Court issued an opinion in August explaining its March 2017 one-paragraph ruling rejecting a constitutional challenge to Proposition 206, a ballot initiative approved last November which requires most Arizona employers to provide paid sick days. Arizona Chamber of Commerce & Industry et al v. State of Arizona et al (No. CV–16–0314–SA, August 2, 2017).

Massachusetts: A railroad had argued that the Massachusetts Earned Sick Time Law (MESTL) was preempted by the Railroad Unemployment Insurance Act (RUIA), the Railway Labor Act and ERISA with regard to interstate rail carriers. The First Circuit held that the section of the MESTL dealing with benefits for an employee’s own medical condition was preempted by the RUIA. The court remanded the case to have the district court decide whether any other sections are preempted by the RUIA or the Railway Labor Act or ERISA and whether any sections of the MESTL survive as applied to interstate rail carriers. CSX Transportation, Inc. v. Healey  (1st Cir. June 23, 2017).

Oregon: The lawsuit brought by nine counties challenging the Oregon Paid Sick Leave Law as applied to them as employers was settled in July 2017, though one issue was reserved for appeal. Under the settlement, three counties–Linn, Douglas and Yamhill–need not comply with the Oregon Paid Sick Leave law, subject to a change in the law’s funding or the counties’ cost of compliance with the PSL law. The other six plaintiff-counties must comply with the Oregon PSL law. The State has reserved the right to appeal the judge’s decision that the Sick Leave Law is a “program,” as that term is used in the state constitution. Linn County et al v. Katie Brown as Governor, et al (Or. Cir. Ct. 23rd Dist.).

Challenges to local PSL laws 

Minneapolis, MN:  The Minnesota Court of Appeals affirmed a January 2017 lower court decision that the Minneapolis Sick and Safe Time Ordinance applies to businesses within the City’s geographic boundaries but not to businesses outside the City limits.  The cadre of business interests that brought the lawsuit has said it will ask the Minnesota Supreme Court to hear the case, according to a newspaper report.  Minnesota Chamber of Commerce et al vs City of Minneapolis et al (Case No. A17-0131, September 18, 2017)

Pittsburgh, PA: An appellate court last May affirmed a lower court’s decision that Pittsburgh did not have the authority to enact its Paid Sick Days Act and invalidating that law. In June, the union filed an appeal with the Supreme Court of Pennsylvania. Pennsylvania Restaurant and Lodging Ass’n v. City of Pittsburgh and Service Employees Int’l Union, Local 32 BJ.  (Pa. Comm. Ct., 79-CD-2016, May 17, 2017).

Other Paid Sick Leave Developments To Watch

Albuquerque, NM: Voters yesterday narrowly rejected the Healthy Workforce Ordinance, which would have allowed employees to accrue paid sick time. 50.39% voted against the Ordinance.

Austin, TX: The Austin City Council voted in September to consider requiring private employers to offer paid sick leave to their workers.  Proponents hope to draft an ordinance by early 2018.

Duluth, MN: Last year, the Duluth, MN City Council created a task force to collect information, hold public hearings, and make recommendations to the City Council concerning a sick and safe time ordinance.  The task force posted online PSL surveys for employers and employees and recently posted its survey summary. The Task Force must make its recommendations no later than November.

Michigan: The state Board of State Canvassers has approved a petition to allow proponents of the Earned Sick Time Act to collect signatures to try to have the Act on the ballot in 2018.

 

A Paid Leave Proposal to Preempt the Patchwork

Protect us, Congress, from the patchwork of state and local paid leave laws. The HR Policy Association, an organization of chief human resources of 380 “large and influential” companies with 20 million employees worldwide. has proposed that Congress create a “safe harbor” from state and local leave laws for “multi-state employers that choose to voluntarily provide paid leave to their employees.”

The proposal, in a report entitled Workplace 2020: Making the Workplace Work, does not suggest that Congress enact a federal paid leave law to supersede state and local laws. Rather, it proposes that Congress enact a paid leave standard and that any employer which elects to meet that standard would be shielded from liability under state or local leave laws. While the report refers to as a “safe harbor,” it also sounds very much like a preemption law, at least for those employers who choose to meet the standard.  head-2147328_1280

No logical person can dispute that the current patchwork of leave laws is irrational and has been so for years. Concerning paid sick leave laws alone, we have seven states; the District of Columbia; one county; one county less the 20 or so villages, towns and cities that have chosen not to comply with that county’s law; and about thirty municipalities that have enacted PSL laws. My Paid Sick Leave Quarterly for 1Q 2017 describes the state of the PSL patchwork as of March 31.  As I noted in an earlier post, Rube Goldberg could not have devised such a complicated scheme. Add to that the budding patchwork of paid family leave laws. Given the hodgepodge of leave law, the group’s entreaty is quite understandable.

Nor can the suppllication be labeled as coming from the “ivory tower.” Human Resource professionals are on the front lines of this issue, responsible for tracking, complying with and administering these leave laws across the enterprise.  Many larger companies have created leave management departments to deal with the quantity and complexity of leave laws.

The proposal is not anti-leave by any means. It notes appropriately that large companies are and have been in the forefront of providing generous leave benefits to employees. Essentially, it asks that the companies that provide generous paid leave be able to do so uniformly, to all employees, regardless of state or local law.

Since 2012, I have been posting blogs about the challenge for multi-state employers to comply with the growing patchwork of leave laws. The HR Policy report proposes a credible approach to deal with that challenge, one which would benefit employers and employees alike. It deserves serious consideration by members of Congress

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.