Paid Sick Leave Quarterly: 2Q 2019

The vast and complex patchwork of PSL laws expanded in the second quarter of 2019. The most notable development was the addition of two laws with PSL architecture but allowing paid leave to be used for any reason, not merely for sick leave.

This summary includes:

Paid Sick Leave Laws Effective in Q2

Paid Sick Leave Laws Effective After Q2

Louvre Sculpture

Paid Sick Leave Bills Introduced During Q2

  • None, though some introduced previously remain pending.

Paid Sick Leave Preemption Developments

Alabama:  The Eleventh Circuit Court of Appeals has decided to hear the challenge to Alabama’s minimum wage and employment benefits preemption law en banc, meaning that all of the Court’s judges will hear the case. The Court held oral argument on June 25, 2019. 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. The plaintiffs brought various race-based challenges to the Act, all of which were rejected by a federal district court last year. Last July, a three-judge panel of the Eleventh Circuit affirmed the dismissal of all claims except the “equal protection” constitutional claim. Marnika Lewis v.  State of Alabama et al. (11th Cir) (Case No.17-11009)(11th Cir. July 25, 2018).

Paid Sick Leave Litigation

 Challenges to state PSL laws

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 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.”  In the Massachusetts case, the plaintiff filed a motion for summary judgment on November 30, 2018, which remains pending. 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)(complaint filed 04/04/18)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)(complaint filed 02/06/18). A handful of airlines have raised similar challenges to the NYC PSL law as well.

Michigan: The Michigan Supreme Court will wade into the clash involving the constitutionality of the state’s Paid Medical Leave Act, at least to decide whether to consider the substance of that clash. In response to requests by both legislative chambers for an advisory opinion on the legality of the recently enacted state PSL law, the court scheduled a hearing on July 17, 2019. The first of three questions listed in the Court’s Order is whether it should exercise its discretion and issue the requested advisory opinion.

Challenges to local PSL laws

Pittsburgh, PA: The Supreme Court of Pennsylvania will decide whether Pittsburgh had authority to enact the Sick Days Act which it adopted three years ago. Last year, an appellate court affirmed a lower court decision that the City did not have the authority to enact it and invalidated the law. Oral argument in the Supreme Court occurred on October 23, 2018.  Pennsylvania Restaurant and Lodging Ass’n v. City of Pittsburgh and Service Employees Int’l Union, Local 32 BJ. (Pa. Supreme Court, 57 WAP 2017).

Austin, TX: The Austin Earned Sick Time Ordinance is unconstitutional because it is preempted by the Texas Minimum Wage Act (TMWA), the Texas Court of Appeals, Third District, ruled in November.  The City of Austin has asked the Texas Supreme Court to hear an appeal of that decision. The Austin PSL ordinance was to be effective on October 1, 2018 but its implementation has been enjoined pending the outcome of the litigation. Texas Ass’n of Business et al v City of Austin, Texas et al (TX Ct of Appeals, Third District, Case. No. 03-18-00445-CV, November  16, 2018).

Other Paid Sick Leave Developments To Watch

Bernalillo County, NM:  The Board  of Commissioners tabled a proposed PSL ordinance to consider transforming it to an “any reason” ordinance by deleting the limits on the use of accrued time.

Minneapolis:  As a result of a recent court of appeals decision, beginning July 3, 2019, Minneapolis began enforcing its Sick and Safe Time Ordinance against businesses not physically located in the city but who have employees who work at least eight (80) hours in a year within the geographic boundaries of the city.

Albany County, NY and Portland, ME legislatures defeated PSL bills  this past quarter.

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

Amended Minneapolis Sick and Safe Leave Law Upheld on Appeal

The Minneapolis Sick and Safe Time Ordinance can be enforced against businesses not physically located in the city but who have employees who work at least eight (80) hours in a year within the geographic boundaries of the city, according to a state appellate court decision last week. The court also held that the Minneapolis ordinance was not preempted by a state law allowing employees to use their sick leave benefits to care for ill or injured family members and for safe time.

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A cadre of business interests brought the legal challenge to the Minneapolis ordinance in January 2017, months before the ordinance went into effect on July 1, 2017. The initial court decisions enjoined the city from enforcing its PSL law against employers who did not have a physical presence in the city. To address this issue, in March 2018, Minneapolis amended its ordinance by narrowing its application to such “extraterritorial” employers. The amendments added that employees accrue PSL time for hours worked “within the geographic boundaries of the city” and could use that time only when scheduled to work “within the geographic boundaries of the city.” These amendments, the city argued, salvaged the Ordinance’s extraterritorial provisions.

Last week, the court of appeals agreed, reversing a state district court decision a year ago which had rejected the Ordinances’ application to businesses outside the city limits.

 

Michigan Supreme Court to Consider Request for Advisory Opinion on Paid Medical Leave Law

The Michigan Supreme Court will wade into the clash involving the constitutionality of the state’s Paid Medical Leave Act, at least to decide whether to consider the substance of that clash. In response to requests by both legislative chambers for an advisory opinion on the legality of the recently enacted state PSL law, the court scheduled a hearing on July 17, 2019. The first of three questions listed in the Court’s Order is whether it should exercise its discretion and issue the requested advisory opinion.In Michigan, a legislative chamber or the governor may ask the Supreme Court to issue an advisory opinion on “important questions of law upon solemn occasions as to the constitutionality of legislation….”

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The other two questions for which the Court solicited briefs concern the process-used to enact the PSL. PSL proponents had collected enough signatures to have voters decide in November 2018 whether to enact a PSL initiative. The Michigan Constitution gives the legislature the option to enact such an initiative, negating the need for a vote on it.  Both legislative chambers, both with GOP majorities, had concerns about the substance of the PSL bill. They decided to enact the voter initiative and then amend it. This strategy was adopted because amending a statute enacted by the legislature requires a majority vote in each legislative chamber while amending a statute enacted by a voter initiative requires a three-fourths vote of each chamber.  The urgency to implement this strategy increased in November when voters elected a Democratic governor who would take office in January and would likely veto the effort to amend the PSL law.

Last Fall, the legislature enacted the initiative and a few months later amended it. In December, lame duck GOP Governor Rick Snyder signed the amended bill.

The Supreme Court has asked the parties to brief whether the legislature may “enact an initiative petition into law and then amend that law during the same legislative session” and whether the PSL and minimum wage laws were enacted in accordance with the constitutional provision concerning voter initiatives.

Appeals Court En Banc to Decide Alabama Preemption Challenge

The Eleventh Circuit Court of Appeals last week decided to hear the challenge to Alabama’s minimum wage and employment benefits preemption law en banc, meaning that all of the Court’s judges will hear the case.

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The triggering event for this preemption battle occurred in February 2016 when the City of Birmingham passed an ordinance increasing the minimum wage within the city. The next day, the state legislature responded by enacting the Uniform Minimum Wage and Right-to-Work Act, which prohibits a political subdivision from requiring an employer to provide any wage or “employment benefit” not required by federal or state law, including paid and unpaid leave. It also voided the Birmingham ordinance.

The plaintiffs challenged the preemption law, arguing that it was unconstitutional and violated the Voting Rights Act. In 2017, a federal district court rejected the plaintiffs’ challenges and dismissed the case. Last July, a three-judge panel of the Eleventh Circuit affirmed the dismissal of all but the plaintiffs “equal protection” constitutional claim. That panel held that the plaintiffs had plausibly alleged both that the law “burdens black citizens more than white ones” and that  it was enacted with a discriminatory purpose. Last week’s order to hear the case en banc vacated the three-judge panel decision.

The case is Marnika Lewis et al v.  State of Alabama et al. Docket No.17-11009 (11th Cir.)

Paid Sick Leave Quarterly: 4Q 2018

The vast and complex patchwork of PSL laws expanded in Q4 with Michigan becoming the 11th PSL state. This summary includes:

  • Paid Sick Leave Laws Effective in Q4

    Paid Sick Leave Laws Effective After Q4

    Louvre Sculpture

    Paid Sick Leave Bills Introduced During Q4

    • 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.

    Texas: On opening day of the pre-filing season in the Texas Legislature, one of the pre-filed bills would preempt municipalities from adopting or enforcing any ordinance requiring an employer to provide paid sick leave to an employee. House Bill 222 also voids any ordinance that requires an employer to provide paid sick leave, such as the Austin and San Antonio PSL ordinances. The legislative session opened on January 8, 2019. If enacted, the bill would be effective September 1, 2019.:

    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 died with the end of the 115th Congress.

    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)(complaint filed 04/04/18)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)(complaint filed 02/06/18).

    Challenges to local PSL laws

    Pittsburgh, PA: The Supreme Court of Pennsylvania will decide whether Pittsburgh had authority to enact the Sick Days Act which it adopted three years ago. Last year, an appellate court affirmed a lower court 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….”  Oral argument in the Supreme Court occurred on October 23, 2018.  Pennsylvania Restaurant and Lodging Ass’n v. City of Pittsburgh and Service Employees Int’l Union, Local 32 BJ. (Pa. Supreme Court, 57 WAP 2017).

    Austin, TX: The Austin Earned Sick Time Ordinance is unconstitutional because it is preempted by the Texas Minimum Wage Act (TMWA), the Texas Court of Appeals, Third District, ruled in November.  The court’s ruling focused largely on whether the sick days under ordinance were a “wage.” Relying on dictionary definitions, the court held that the Ordinance establishes a wage and is thus preempted by the TMWA. The Austin PSL ordinance had been scheduled to go into effect on October 1, 2018 but its implementation had been enjoined pending the outcome of the litigation. The City of Austin, reportedly, intends to appeal to the Texas Supreme Court. Texas Ass’n of Business et al v City of Austin, Texas et al (TX Ct of Appeals, Third District, November  16, 2018). 

    Other Paid Sick Leave Developments To Watch

    Albany County, NY: The County’s Paid Sick Leave Act was introduced in March and referred to the Legislature’s Law Committee. There have been two public hearings. The Law Committee will revisit the proposal in 2019.

    Cook County Earned Sick Leave Ordinance:  More than 80% of the municipalities within Cook County had opted out of the County PSL ordinance. The Village of Wilmette, after opting out of the County PSL ordinance twice, opted back into it.  The villages of Northbrook and Western Springs revoked their “opt out” of the County PSL ordinance earlier this year. More municipalities within Cook County are expected to reconsider their opt out decisions this year.

    Albuquerque and Portland, ME. Either city could be the next to enact a PSL ordinance. After a multi-front, prolonged legal battle, Albuquerque voters in 2017 narrowly rejected a PSL bill. A more narrow bill is being debated in the legislature. In Portland, a PSL bill was introduced in 2017 and is wending its way through the legislative process.

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

 

Austin Sick Time Ordinance Preempted, Appellate Court Rules

The Austin Earned Sick Time Ordinance is unconstitutional because it is preempted by the Texas Minimum Wage Act (TMWA), the Texas Court of Appeals, Third District, ruled on Friday. A state district court judge earlier this year said that the challenge to the Austin PSL ordinance had “the aroma of a good political blood fight,”

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The court’s ruling focused largely on whether the sick days required by the Austin ordinance were a “wage,” a term not defined in the TMWA. Relying on dictionary definitions to discern the “plain meaning” of that word, the court noted that the Austin Ordinance establishes a wage because it “increases the pay of those employees who use paid sick leave.”

The court explained that employees who use sick leave are paid a higher rate of pay for hours actually worked.  For example, the court noted, an hourly employee earning $10 per hour who works 15 hours per week for 50 weeks (750 hours total) will have earned $7500 for that work. If that same employee uses the 25 hours of sick leave earned during that period under the Austin ordinance, the employee’s hourly wage for hours worked would increase to $10.33.

The court concluded that since “the Ordinance increases the pay of those employees who use paid sick leave,” it is a “wage” under the TMWA and, for that reason, is preempted by that state law.

The court’s decision comes just a few days after a Texas  legislator pre-filed a bill to preempt local paid sick leave laws. My post on that pre-filing is here.

San Antonio is the only other Texas city to have enacted a PSL law. It is scheduled to be effective on August 1, 2019.

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

Louvre Sculpture

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!