Paid Sick Leave Quarterly: 3Q 2018

Updated October 9 and 11, 2018.

The vast and complex patchwork of PSL laws expanded in Q3 with Michigan becoming the 11th PSL state. This summary includes:

Paid Sick Leave Laws Effective in Q3

Paid Sick Leave Laws Effective After Q3

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Paid Sick Leave Bills Introduced During Q3

  • None, though some introduced previously are still pending.

Paid Sick Leave Preemption Developments

Alabama: Marnika Lewis v.  State of Alabama et al. (11th Cir) (Case No.17-11009)(11th Cir. July 25, 2018). The Alabama Uniform Minimum Wage and Right-to-Work Act bars municipalities from requiring employers to provide employees wages or “employment benefits,” including leave, unless required by federal or state law. It was passed the day after Birmingham increased the minimum wage within the city. The plaintiffs brought various race-based challenges to the Act, all of which were rejected by a federal district court last year. In July, the Eleventh Circuit affirmed the dismissal of all claims except the “equal protection” constitutional claim, holding that the plaintiffs have plausibly alleged both that the Act “burdens black citizens more than white ones” and that  it was enacted with a discriminatory purpose. The court remanded that claim to the district court.

Pennsylvania: House Bill 861 prohibits a municipality from requiring “employer policies or practices,” which include paid or unpaid employee leave. The bill, which would negate Philadelphia’s paid leave law, was approved by the House Committee on Labor and Industry on October 1, 2018. Even if the bill were to be passed by the House and the Senate, Democratic Governor Tom Wolf has vowed to veto it. Republicans do not have the two-thirds majority in both legislative chambers necessary to override a veto.

Proposed federal bill: The Workflex in the 21st Century Act, introduced in the House of Representatives in November, 2017, 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 the bill on July 24, 2018. The bill’s future is uncertain; support for it is mixed.

Paid Sick Leave Litigation

 Challenges to state PSL laws

Massachusetts: The Railroad Unemployment Insurance Act (RUIA) preempts the Massachusetts Earned Sick Time Law (MESTL) in its entirety as it applies to interstate rail carriers, according to a decision in August by a Massachusetts federal district court on remand from the First Circuit. The First Circuit had held previously that the MESTL provision dealing with benefits for an employee’s own medical condition was preempted by the RUIA but remanded the case to have the district court decide whether any other sections of MESTL were preempted by the RUIA or the Railway Labor Act or ERISA and whether any sections of the MESTL can survive as applied to interstate rail carriers. CSX Transp. v. Healey, 861 F.3d 276 (1st Cir. 2017).

Massachusetts and Washington: The Massachusetts Earned Sick Time Law (MESTL) and Washington State Paid Sick Leave Act (WPSL) as applied to flight crew are unconstitutional and preempted by the federal Airline Deregulation Act (ADA), according to complaints filed by the Air Transport Association of America, an association of airline carriers.  The plaintiff claims these state laws violate the dormant Commerce Clause–the implicit restriction on a state or local government’s ability to unreasonably burden interstate commerce–and the Fourteenth Amendment of the Constitution.  The plaintiff also alleges that the Airline Deregulation Act (ADA) preempts the state PSL laws with regard to both flight crew and ground crew because they relate to a “price, route or service of an air carrier.”  Air Transport Association of America, d/b/a Airlines For America v. Maura Healey in her capacity as Attorney General of the Commonwealth of Massachusetts (D.MA)Air Transport Association of America, d/b/a Airlines For America v. The Washington Dep’t of Labor and Industries et al (W.D. WA).

Challenges to local PSL laws

Pittsburgh, PA: The Supreme Court of Pennsylvania will decide whether Pittsburgh had authority to adopt the Sick Days Act, which it enacted three years ago. Last year, an appellate court affirmed a lower court’s decision that the city did not have the authority to enact it and invalidated the law. 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….”  The briefing by the parties was completed on April 4, 2018. Pennsylvania Restaurant and Lodging Ass’n v. City of Pittsburgh and Service Employees Int’l Union, Local 32 BJ. (Pa. Supreme Court, 227 WAL 2017).

Austin, TX: A cadre of business interests had sued to enjoin implementation of the Austin Earned Sick Time Ordinance, which is scheduled to go into effect on October 1, 2018. The plaintiffs claim that the Austin Ordinance is preempted by the Texas Minimum Wage Law which requires employers to follow the federal minimum wage law, which 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; 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.  Noting that the case “has the aroma of a good political blood fight,” a state district court judge denied the injunction request. On appeal, the  Texas Court of Appeals in August reversed that decision and enjoined the implementation of the Ordinance to maintain the status quo while the legal challenge proceeded. The City of Austin is appealing the order enjoining the implementation of its Earned Sick Time Ordinance to the state Supreme Court, according to a news reportTexas Ass’n of Business et al v City of Austin, Texas et al (TX Ct of Appeals, Third District, August 17, 2018).

Other Paid Sick Leave Developments To Watch

Albany County, NY: The County’s Paid Sick Leave Act was introduced in March, referred to the Legislature’s Law Committee and has been wending its way through the legislative process. A hearing on an amended bill will likely occur in late October.

Cook County Earned Sick Leave Ordinance:  The County Board of Supervisors have  decided to include an advisory referendum question on the November 6, 2018 ballot to ask voters in municipalities that had opted out of the Cook County Earned Sick Leave Ordinance whether their municipality should “match the Cook County earned sick time law which allows for workers to earn up to 40 hours (5 days) of sick time a year to take care of their own health or a family member’s health?” More than 80% of the municipalities within Cook County had opted out of the County PSL ordinance.

Westchester County, NY: The Westchester County Board of Legislators passed an Earned Sick Leave Law on October 1, 2018. The bill awaits the County Executive’s signature. The bill has the typical PSL architecture: employees will accrue one hour of sick time for every 30 hours worked and may earn and use up to 40 hours in a year for itemized reasons. For employees of employers with at least 5 employees, the earned time is paid.

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All part of life’s rich paid sick leave pageant!

Maryland Healthy Working Families Act: A PSL-4Step Analysis

The Maryland General Assembly last month overrode Governor Larry Hogan’s veto of the Healthy Working Families Act. Since the HWFA is effective in a few days, on February 11, it seems fitting and proper, as lawyers are wont to say, to post my 4Step analysis of that law.

The law requires the Commissioner of Labor and Industry to develop and post on its website (https://www.dllr.state.md.us/paidleave/) a model poster, notice, and sick and safe leave policy and to provide technical assistance to employers. As of this writing, the model documents have not yet been posted. The Commissioner also “may” adopt regulations necessary to carry out the HWFA.

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Here, I use the PSL-4Step framework to analyze the HWFA.

Step 1: Does it apply?

“Employer” includes state and local government units and “a person that acts directly or indirectly in the interest of another employer with an employee.”

“Employee” does not include an individual who

  • performs work under a contract of hire that is determined not to be covered employment under Labor and Employment, Section 8-205;
  • is not a covered employee under Labor and Employment, Section 9-222 (deals with real estate brokers and salespeople);
  • is under the age of 18 years before the beginning of the year;
  • is employed in the agriculture sector on an agricultural operation;
  • is employed by a temporary staffing agency which does not have day to day control over the work assignments and supervision of the individual while providing the temporary staffing services; or
  • is directly employed by an employment agency to provide part-time or temporary services to another person.

Also, the HWFA does not apply to an employee:

  • who regularly works less than 12 hours a week for an employer;
  • is in the construction industry but is not a janitor, a building cleaner, a building security officer, a concierge, a doorperson, a handyperson or a building superintendent and who is covered by a collective bargaining agreement in which the requirements of the HWFA law are expressly waived in clear and unambiguous terms;
  • who is “called to work by the employer on an as-needed basis in a health or human services industry, [who] can reject or accept the shift offered by the employee, is not guaranteed to be called on to work by the employer and is not employed by a temporary staffing agency.”

Also, the law does not affect any bona fide collective bargaining agreement entered into before June 1, 2017 for the duration of the contract term, excluding any extensions, options to extend, or renewals of the term of the original agreement.

Finally, if a unit of state or local government’s sick leave accrual and use requirements meet or exceed leave under the HWFA, employees of that unit who are part of the unit’s personnel system are subject to the unit’s laws, regulations, policies, and procedures providing for accrual and use of leave, grievances and disciplinary actions. Any employees in such unit not covered by the unit’s sick leave and accrual and use requirements are subject to the HWFA.

Step 2: The Benefit Continue reading

Arizona Fair Wages and Healthy Families Act: A PSL-4Step Analysis

Arizona voters last November approved Proposition 206, The Fair Wages and Healthy Families Act. The Act requires most Arizona employers to allow employees to accrue paid sick leave, effective July 1, 2017. It also increases the minimum wage in increments.

Legal challenges to the constitutionality of that law by a cadre of business interests have been unsuccessful, thus far. On March 14, in a one-paragraph opinion, the Arizona Supreme Court rejected the argument that the Proposition was unconstitutional. The Court stated that it would issue a “written opinion further explaining the Court’s decision … in due course” but has not yet done so.

The Arizona Industrial Commission (AIC) issued a Notice of Proposed Rulemaking concerning the Act on May 5, 2017. The comment period ended on June 5, 2017. The AIC also issued Frequently Asked Questions (FAQs) about Minimum Wage and Earned Paid Sick Time, updated most recently on May 19, 2017.saguaro-232762_640

Here, I use the PSL-4Step framework to analyze The Arizona Fair Wages and Healthy Families Act.

Step 1: Does it apply?

“Employer” includes every type of business entity, political subdivision of Arizona, individual or other entity “acting directly or indirectly in the interest of an employer in relation to an employee” excluding the State of Arizona and the United States.

“Employee” means any person who is employed by an employer but does not include anyone employed by a parent or a sibling, or who is employed performing babysitting services in the employer’s home on a casual basis. The term also includes recipients of public benefits working as a condition of receiving public assistance. There are no salary-based exemptions.

The earned paid sick time provisions (referred to in this blog as PSL) are effective July 1, 2017 except if a labor contract is in effect at that time, the law takes effect upon the expiration of that contract.

An employer and union may “expressly waive[]” any or all of the law’s PSL requirements in their labor contract by using “clear and unambiguous terms.”   (Help me understand the logic of that provision.) Continue reading

Vermont Earned Sick Time Law: PSL-4Step Analysis

The Vermont Earned Sick Time law was enacted in March 2016. The Vermont Commissioner of Labor has issued “sick time rules” to “clarify practices and policies in the administration and enforcement” of the law. Here, I analyze the law and rules using the PSL-4Step framework.

Step 1: Does it apply?

Effective Date:  January 1, 2017, except that the law does not apply to an employer with five or fewer employees who are employed for an average of no less than 30 hours per week during the previous calendar year, i.e., a small employer, until January 1, 2018. A “new employer” is not subject to the law until one year after the employer hires its first employee. The effective date of the DOL’s rules is January 15, 2017.

Employer Definition: “Employer” includes every type of business entity and any common carrier by rail, motor, water, air or express company doing business or operating with Vermont.

Employee Definition: “Employee” means any person employed by an employer for an average of at least 18 hours per week during a year.  “Employee” does not include

federal employees;

state employees who are either exempt or excluded from the State classified service but not an individual that is employed by the State in a temporary capacity;

an individual under 18 years of age;

an individual employed for 20 weeks or fewer in a 12-month period in a job scheduled to last 20 weeks or fewer;

an employee who works on a per diem or intermittent basis, i.e., who  works only when he or she is available to work, is under no obligation to work for the employer offering the work, and  has no expectation of continuing employment with the employer;

an employee of a “health care facility” or “facility” if the employee only works on a per diem or intermittent basis;

a sole proprietor or partner owner of an unincorporated business who is excluded from the provisions of chapter 9 of this title  (employer’s liability and workers compensation); or an executive officer, manager, or member of a corporation or a limited liability company for whom the Commissioner has approved an exclusion from the provisions of chapter 9 of this title;

an employee of a school district, supervisory district, or supervisory union employed pursuant to a policy on substitute educators who is under no obligation to work a regular schedule and is not under contract or written agreement to provide at least one period of long-term substitute coverage, defined as 30 or more consecutive school days in the same assignment.

Primary Place of Work: An employee whose primary place of work is in Vermont is eligible to accrue and use earned sick time (PSL) under this law, regardless of the employer’s primary location. If an employee’s primary place of work is in Vermont, all of the employee’s hours of work are counted for accrual, regardless of where the work is performed.

 Step 2:  The Benefit

Accrual: One hour of leave for every 52 hours worked, including overtime hours, beginning the first day of employment. An employer may impose a waiting period of up to one year before an employee can use accrued leave (for those employed on January 1, 2017, an employer may require a waiting period that ends no later than December 31, 2017). Between January 1, 2017 and December 31, 2018, an employer may cap use at 24 hours per annual period; this minimum cap increases to 40 hours on January 1, 2019.

NOTE: for small employers, the waiting period must end no later than December 31, 2018.

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Timing of Accrual Calculation:  The amount of accrued sick time shall be calculated as it accrues during each pay period or quarterly, although an employee may use earned sick time as it accrues (assuming the employee is beyond the employer’s waiting period). Continue reading

Spokane Earned Sick and Safe Leave Ordinance: PSL-4Step Analysis

In January 2016, the City Council of Spokane, Washington overrode the mayor’s veto to enact the Earned Sick and Safe Leave Ordinance. Ten months later, in November 2016, Washington State voters approved Initiative 1433, which requires employers statewide to provide paid sick leave. In response to I-1433, the City Council of Spokane amended its ordinance to have it “sunset” upon I-1433’s implementation. Here, I use the PSL-4Step framework to analyze the Spokane ordinance.

Step 1: Does it apply?

Effective Date: The Earned Sick and Safe Leave Ordinance (referred to in this blog as PSL) is effective January 1, 2017 and will “sunset” on December 31, 2017 unless the implementation of Initiative 1433 has been delayed beyond January 1, 2018. If there is a delay in I-1433’s implementation, the Spokane PSL will continue until I-1433 becomes effective.

Any business that received its first registration after the Spokane ordinance was enacted (January 11, 2016) but before January 1, 2017 shall not be subject to the ordinance for a period of one year from the date of the first business registration.

Employer Definition: “Employer” includes every type of business entity or any “person or group of persons” acting in the interest of an employer, having a permanent location in the City of Spokane, and having at least one employee who performs more than 240 hours of work in the City of Spokane. “Employer” does not include federal, state, county or local government employees; any business owned and operated by one person (or one person and his or her spouse) with zero employees; and any federally recognized Indian tribe.

Employee Definition: “Employee” means any person who performs work in the City of Spokane for compensation including part time employees, but does not include occasional employees (those who work fewer than 240 hours per year within Spokane), seasonal (“term of employment expected to last less than one year and which is intermittent or recurs annually”), domestic workers, work-study students, those engaged in “construction work,” and employees who are immediate family members of business owners, or independent contractors. Continue reading

Arizona Fair Wages and Healthy Families Act: PSL-4Step Analysis

Last week, Arizona voters approved The Fair Wages and Healthy Families Act. Here, I use the PSL-4Step framework to analyze that Act.

Step 1: Does it apply?arizona-state-seal-color

“Employer” includes every type of business entity, political subdivision of Arizona, individual or other entity “acting directly or indirectly in the interest of an employer in relation to an employee” excusing the State of Arizona and the United States.

“Employee” means any person who is employed by an employer but does not include anyone employed by a parent or a sibling, or who is employed performing babysitting services in the employer’s home on a casual basis. The term also includes recipients of public benefits working as a condition of receiving public assistance.

The earned paid sick time provisions (referred to in this blog as PSL) are effective July 1, 2017 except if a labor contract is in effect at that time, the law takes effect upon the expiration of that contract.

An employer and union may “expressly waive[]” any or all of the law’s PSL requirements in their labor contract by using “clear and unambiguous terms.”   (Help me understand the logic of that provision.)

Step 2:  the Benefit

Accrual: One hour of leave for every 30 hours worked, beginning the first day of employment (or July 1, 2017 for then-current employees). Those employed on July 1, 2017 may use leave as it accrues. For those hired after July 1, 2017, accrued leave may be used on the 90th calendar day of employment. An employer may cap accrual and use at 40 hours per year (any consecutive 12 month period as determined by employer) except that employers with fewer than 15 employees may cap accrual and use at 24 hours per year.

Exempt Employees: Are assumed to work 40 hours weekly unless their normal work week is less than 40 hours, in which case PSL accrues based upon that normal work week.

Rate of Pay: The “same hourly rate and with the same benefits, including health care benefits, as the employee normally earns during hours worked” but not less than the federal minimum wage.

Unused Hours: Carried over to the following year, subject to use limits set forth in “Accrual” section above. An employer may elect to pay an employee for unused sick time at the end of the year if the employer frontloads the employee’s sick time accrual, which would be available for immediate use, at the beginning of the subsequent year.

Alternatives to Accrual: An employer may frontload sick time.

Uses of PSL:

  • Employee’s or family member’s illness, injury or health condition (including diagnosis, care or treatment) or preventative medical care;
  • When employee’s workplace, or employee’s child’s school or place of care is closed by a public official for a health reason;
  • Care for employee or family member when presence in the community may jeopardize the health of others because of his or her exposure to a communicable disease, regardless of whether the individual actually has the communicable disease;
  • Reasons due to domestic violence, sexual violence, abuse or stalking, provided the absence is to obtain related services, i.e. medical attention, services from a domestic violence or sexual violence program or victim services organization; psychological or other counseling; relocation or taking steps to secure an existing home; legal services.

Minimum Increments of Use: PSL may be used in “the smaller of hourly increments of the smallest increment that the employer’s payroll system uses to account of absences or use of other time.”

Step 3: Common Clauses

Continue reading

Washington Initiative 1433: PSL-4Step Analysis

I recently introduced the PSL-4Step framework to analyze a PSL law. Here, we use that framework to report on Washington state’s Initiative 1433, which was approved by voters last week.wa-seal

Step 1: Does it apply?

Effective January 1, 2018, “every employer” shall provide “each of its employees” PSL under this Initiative.

Step 2:  the Benefit

Accrual: One hour of leave for every 40 hours worked, beginning the first day of employment, which may be used on the 90th calendar day of employment. Amount of accrual is uncapped.

Rate of Pay: The greater of the state minimum hourly wage or employee’s normal hourly compensation.

Unused Hours: Carried over to the following year, but employer may cap the carryover at 40 hours.

Alternatives to Accrual: Frontloading allowed if it “meets or exceeds” the law’s requirements for accrual, use, and carryover of PSL.

Uses of PSL:

  • Employee’s or family member’s illness, injury or health condition (including diagnosis, care or treatment) or preventative medical care;
  • When employee’s workplace, or employee’s child’s school or place of care is closed by a public official for a health reason;
  • Leave under the state’s domestic violence leave act;
  • Other reasons permitted by the employer.

Step 3: Common Clauses

Continue reading