Challenge to Minneapolis Sick Leave Law is Over; Split Decision Stands

It began with the Fracas in Minneapolis, evolved into the Minnesota Melee, and now, more than a year after it began, the legal challenge to the Minneapolis Sick and Safe Time Ordinance is over. In September, the state Court of Appeals had declined to enjoin that ordinance as it applied to businesses within the City’s geographic boundaries but enjoined it with regard to businesses outside the City limits.  The Supreme Court of Minnesota has now declined to review the Court of Appeals’ decision. That denial ends the legal challenge. The case is closed.

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While the litigation challenged the Minneapolis ordinance only, St. Paul had enacted a very similar ordinance and has been applying in within the city limits while awaiting the final resolution of the litigation.

Duluth also has had a keen interest in the litigation since it is considering whether to enact a sick and safe time ordinance. Its Task Force presented its report to the City Council on Monday, November 20.

With the closing of this case, the state of PSL in the North Star State is that a municipality may enact a PSL that applies to businesses within the city’s geographic boundaries only. The Minneapolis and St. Paul ordinances have been in effect since July 1, 2017.

 

Pennsylvania Supreme Court Agrees to Review Striking of Pittsburgh Paid Sick Days Law

The Supreme Court of Pennsylvania yesterday agreed to hear an appeal concerning the City of Pittsburgh’s authority to enact the Sick Days Act.

Pittsburgh enacted that Act in August 2015. Last May, an appellate court affirmed a lower court’s decision that the city did not have the authority to enact it and invalidating it  The lone dissenting judge said that Pittsburgh had the right to protect the health and safety of its residents and that the Paid Sick Days Ordinance  was an exercise of that right.

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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….”

In agreeing to hear the appeal, the Supreme Court framed the issue as follows:

“Did the Commonwealth Court err in holding that the State Emergency Management Services Code, the State Disease Prevention and Control Act Law, the Second Class City Code, and the Home Rule Charter and Options Law failed to satisfy the “expressly provided by statute” exception, and that the City of Pittsburgh therefore lacked the authority to pass the Paid Sick Days Act and the Safe and Secure Buildings Act?”

The Pittsburgh Sick Time Act hews to the typical architecture of a paid sick time law. Employees would accrue one hour of paid time for every 35 hours worked, to a maximum of 40 hours annually.

 

Minneapolis’ Paid Sick Leave at State Supreme Court; Duluth’s at City Council

Let’s revisit the Minnesota Melee. In September, the state Court of Appeals declined to enjoin the Minneapolis Sick and Safe Time Ordinance as it applied to businesses within the City’s geographic boundaries but enjoined it with regard to businesses outside the City limits.  I noted then that the decision would be of keen interest in Duluth since a Safe and Sick Time Task Force was working diligently toward making a PSL recommendation to the Duluth City Council.

The plaintiffs in the PSL litigation, a cadre of business interests, have asked the Supreme Court of Minnesota to review the Court of Appeals decision. The City of Minneapolis last week opposed the request, but added that if the Court agrees to hear the plaintiffs’ appeal, it should also hear the City’s appeal of the decision enjoining the Minneapolis law with regard to businesses outside of the City limits. The plaintiffs’ petition for review is here; the City’s response to the petition and conditional request for cross-review is here.

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In Duluth, the Task Force will present its report to the City Council on Monday, November 20. The Task Force has two recommendations. The majority recommendation has the typical PSL-ordinance architecture. Accrual would be at the rate of one hour for every 30 hours worked. The Task Force did not have a consensus on an annual cap or rollover provisions. The second recommendation, a more basic approach, 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.

Thus, the current state of PSL in the North Star State is that the Minnesota Supreme Court will decide the fate of the Minneapolis PSL ordinance, which will decide the fate of the analogous St. Paul ordinance, and which will define the parameters for the Duluth City Council in any PSL ordinance it may consider.

 

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.

 

Split Decision Again in Effort to Enjoin Minneapolis Paid Sick and Safe Time Law

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 Minnesota Court of Appeals ruled yesterday. The court’s decision affirms a January 2017 decision by a Hennepin County District Court judge. My post about the lower court’s decision is here.

The appellate court rejected both the appellants’ argument that the Ordinance should be enjoined and invalidated completely, and the City’s argument that it should not be enjoined at all, and should be applied to employers both within and outside of the City’s geographic boundaries.

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The Ordinance seeks to reach employers without a physical presence in Minneapolis by defining “employees” as those “who perform work within the geographic boundaries of the city for at least eighty (80) hours in a year.” A practical challenge is that employers do not track the time an employee crosses the border into or leaving a municipality. The appellants made this point, ,according to the court, with affidavits stating that “recording the whereabouts of employees relative to municipal boundaries is not a standard part of existing time-tracking systems.” PSL kudos for that creative approach to make that point.

I suspect this decision is also of keen interest to the cities of St. Paul and Duluth.  St. Paul’s Sick and Safe Time Ordinance was effective July 1, 2017. The Duluth Safe and Sick Time Task Force continues apace on its mission to make a recommendation to the Duluth City Council later this year.

Emergency Appeal to Nix Paid Sick Leave Vote in Albuquerque Rejected

The New Mexico Supreme Court has removed the remaining potential obstacle to an October 3 vote in Albuquerque on the Healthy Workforce Ordinance (HWO). The Supreme Court last Friday denied the “emergency” petition filed by a cadre of business interests, asking the Court to review a decision rejecting their arguments that the HWO was unconstitutional.  The Court rejected the petition “without prejudice,” suggesting that while the emergency aspect of the appeal was denied, the business interests may pursue their appeal on a non-emergency basis.

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With the ballot form approved by another court (see here), and the constitutional cloud cleared by the state Supreme Court, Albuquerque voters will go to the polls on October 3 to vote on whether they would like to accrue paid sick time at work.

While speculating is always fraught with peril, the odds suggest that Duke City residents will approve the HWO. Given the opportunity, voters have approved a ballot initiative giving them paid time off in all but one situation. The lone exception was in Denver in 2011.

No PSL laws have been enacted thus far in 2017.  That could change within the next few weeks.  In addition to the October 3 Albuquerque referendum, the Rhode Island legislature is convening on September 19 to consider numerous bills, including a PSL bill.