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.

Paid Sick Leave Quarterly: 4Q 2017

As we wrap up the last quarter of 2017, the vast and complex patchwork of PSL laws consists of more than 40 laws: 8 state laws, the District of Columbia, 2 county laws and about 30 municipal laws. My reports on the first three quarters of 2017 are here, here and here.  My 2017 fourth quarter PSL report is below.

In January, i will post a summary of 2017 PSL developments. In that post, I will also name the winner of the “2017 Paid Sick Leave Patchwork Award” to recognize the jurisdiction that has made the greatest contribution to the PSL patchwork in 2017. I suspect that most who follow this blog could guess the winner quite easily.

Paid Sick Leave Laws Effective This Quarter

Paid Sick Leave Laws Effective After This Quarter

  • New York City (amendment): New York City amended its Earned Sick Time Act to allow employees to use accrued time for reasons related to domestic violence. The law, now called the New York City Safe and Sick Time Law, is effective  May 7, 2018.
  • Rhode Island Healthy and Safe Families and Workplace Act (July 1, 2018).
  • Seattle, WA (amendment). On December 15, Seattle amended its Paid Sick and Safe Time Ordinance “to incorporate the more generous provisions of voter-passed, Washington Initiative 1433 establishing statewide paid sick leave.” Generally, where the state law is more generous than the Seattle ordinance, this amendment raises the ordinance standards to that state level. Among the changes, the Seattle ordinance now applies to employers with just one employee (it previously applied to employers with at least four employees); has expanded “family member” definitions; eliminates caps on the use of accrued time; and reduces the waiting period for use of accrued time from 180 to 90 days.  It is effective 30 days after enactment.
  • Tacoma, WA (amendment). Tacoma amended its PSL law to align it more closely with the Washington PSL law. The amendment is effective January 1, 2018.
  • Washington Law Establishing Fair Labor Standards by Requiring Employers to Provide Paid Sick Leave to Employees (January 1, 2018).

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Paid Sick Leave Bills Introduced This Quarter

Maryland: Governor Hogan recently proposed the Paid Leave Compromise Act, which would gradually reduce the size of an employer required to provide paid leave from fifty employees in 2018, to forty employees in 2019, to 25 employees in 2020 and subsequent years.  It would allow employees to use accrued time for any reason. The compromise bill is an attempt to avoid a January PSL showdown over the Governor’s veto last spring of a PSL bill passed by the General Assembly.

Albuquerque: Just ten weeks after voters narrowly rejected the Healthy Workforce Ordinance, on December 18, the Albuquerque Sick Leave Ordinance was introduced in the City Council. It has the typical PSL-ordinance architecture. The Ordinance would require employers with at least 50 employees to allow employees to accrue one hour of paid sick leave for every 40 hours worked, with a maximum accrual and use of forty hours annually, and carryover of up to forty hours of unused time.

Paid Sick Leave Preemption Developments

Alabama: Marnika Lewis v.  State of Alabama et al. (11th Cir) (Case No.17-11009). In February 2017, a federal court judge rejected challenges to the Alabama Uniform Minimum Wage and Right-to-Work Act, which bars political subdivisions from requiring employers to provide employees with wages or “employment benefits” not required by federal or state law.  An“employment benefit” includes paid and unpaid leave. The plaintiffs have appealed to the U.S. Court of Appeals for the Eleventh Circuit. Oral argument on the appeal is likely to be held in the first quarter of 2018.

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.

Federal: The Workflex in the 21st Century Act, introduced in the House of Representatives in November, would expand ERISA preemption to override the patchwork of paid sick leave laws for an employer which voluntarily adopts a written qualified flexible workplace arrangement” (QWFA) that provides the required minimum amount of “compensable leave” and offers employees at least one of the listed “workflex options.” The bill has been referred to U.S. House Committee on Education and the Workforce. A subcommittee held a hearing on paid leave policies in December.

Paid Sick Leave Litigation

 Challenges to state PSL laws

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 in June 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.  2017).

Challenges to local PSL laws 

Pittsburgh, PA: The Supreme Court of Pennsylvania has agreed to hear an appeal concerning the City of Pittsburgh’s authority to enact the Sick Days Act, which it enacted in August 2015. In May, an appellate court affirmed a lower court’s decision that the city did not have the authority to enact it and invalidated the Act.  The lone dissenting judge said that Pittsburgh had the right to protect the health and safety of its residents and that the Sick Days Act  was an exercise of that right. The appeal will focus on an interpretation of the Home Rule Charter Law, which limits the City’s authority to regulate business “except as expressly provided by statutes….”

Other Paid Sick Leave Developments To Watch

Austin, TX: The Austin City Council voted in September to consider requiring private employers to offer employees paid sick leave.  Austin has held three meetings to obtain the views of the community.  The city staff will submit a recommendation to the City Council for its consideration.

Duluth, MN: The Duluth Safe and Sick Time Task Force presented its report to the City Council on November 20. The majority recommendation has the typical PSL-ordinance architecture, though the task force lacked a consensus on an annual cap or carryover provisions. A second recommendation would require employers to have a written policy publicly available providing at least three days of PSL annually for full-time employees, a pro-rated amount for part-time employees.

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 November 2018. Proponents have until early Spring 2018 to collect enough signatures.

Portland, ME. The mayor has presented his  proposed Earned Paid Sick Time for Workers Ordinance to the City Council. It has been referred to the Health and Human Services Committee “for further research and deliberation.” The ordinance has the typical PSL-architecture: 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.

Spokane:  In response to voters having approved a state-wide PSL bill in November 2016, Spokane amended its PSL law to “sunset,” i.e., have no effect, upon the effective date of the state law, i.e., January 1, 2018.

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