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

Louvre Sculpture

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.

New Mexico Supreme Court to Hear Healthy Workforce Ordinance Dispute 

The New Mexico Supreme Court will decide the constitutionality of the Albuquerque Healthy Workforce Ordinance. The Court will hear an appeal from District Court Judge C. Shannon Bacon’s August 11 decision dismissing all of the constitutional challenges to the HWO brought by a cadre of business interests.   My post about that decision is here.

 The plaintiff-business interests had claimed that the HWO violated the state constitution because it violated the “single subject” rule, i.e., was impermissible logrolling; exceeded a home rule municipality’s authority and the territorial reach of the City; and because ordinances may not be enacted by voter initiative.

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On August 14, the business interests filed with the New Mexico Supreme Court an “Emergency Verified Petition” seeking a review of Judge Bacon’s decision.  (Case No S-1-SC-36609).

On August 24, the Intervenors, representing employees without earned sick leave and HWO proponents, filed an opposition to the Petition, arguing that Judge Bacon’s ruling was correct.  In its opposition, Intervenors note that while the HWO is currently scheduled to be on the ballot at the next regular municipal election, which is on October 3, 2017, absentee voting in that election, and on the HWO, has already begun because, on August 19, the City “emailed the ballot to overseas voters pursuant to the Uniformed and Overseas Citizens Absentee Voting Act.”

While there is no timetable within which the New Mexico Supreme Court must issue a decision in the case, given the impending vote, I suspect the case will move swiftly at the Court.

“General Judgment” Adds Insight to Oregon Paid Sick Leave Settlement

The lawsuit brought by nine counties challenging the Oregon Paid Sick Leave Law was settled last month. My post about that settlement was based on a newspaper report. I now have the official “General Judgment,” which provides insight into the circumstances that led to the settlement.

A bit of background to put the settlement in context. A Linn County judge last December agreed with the plaintiff-counties that Oregon’s Sick Leave Law was an unfunded liability. My report on that decision is here. The Oregon Constitution states that if a local government must spend more than one hundredth of one percent of its budget on an unfunded program, the local government need not comply with the law.

Following the December ruling, the parties engaged in discovery concerning whether the plaintiffs had met the .01% financial threshold. Following discovery, the parties stipulated that Linn, Douglas and Yamhill Counties met that threshold and “would be “more likely than not to continue to satisfy the financial threshold in this manner in future years if they continued to comply with the paid sick leave law,” according to the Court’s General Judgement. The Court concluded that those three counties “may lawfully refuse to comply with the Paid Sick Leave Law unless and until the Legislative Assembly allocates sufficient funding for the program, or identifies and directs the imposition of a fee or charge to be used by plaintiffs to recover the actual cost of the program, or circumstances change such that” the county no longer meets the financial threshold.

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The other six plaintiff-counties withdrew from the case. While the General Judgment does not explain why they withdrew, I is likely that they were unable to meet the financial threshold.

While a settlement typically ends a litigation, in this settlement, 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.  Now the State must decide whether to appeal that decision.

The Oregon Sick Leave Law requires employers with at least ten employees (six in Portland) to provide up to forty hours of paid sick leave annually. Smaller employers must provide unpaid sick leave. This litigation dealt only with the plaintiff-counties as employers. It did not involve private employers.

Court Rejects Albuquerque Healthy Workforce Ordinance Challenge

One day after hearing argument on the challenges to the constitutionality of the proposed Healthy Workforce Ordinance, the judge rejected them all, clearing the way for the October 3 ballot initiative to proceed. Subject to an appeal, of course.

A cadre of business interests had claimed that the HWO violated the state constitution because it violated the “single subject” rule, i.e., was impermissible logrolling; exceeded a home rule municipality’s authority and the territorial reach of the City; and because ordinances may not be enacted by voter initiative. The Intervenor-Defendants, representing employees without earned sick leave and HWO proponents, had moved to dismiss all of these arguments.  In a 10 page opinion, District Court Judge C. Shannon Bacon granted that motion.

courthouse-1223280_640Last week, a judge in the proponents’ HWO litigation issued a decision concerning the logistics of the ballot.  With the HWO opponents’ litigation now dismissed, no obstacles stand in the way of the ballot initiative on October 3, approximately seven weeks from now, although appeals are possible in both litigations.

Regular visitors to my blog are familiar with my axiom about paid sick leave voter initiatives: whenever voters are asked whether they would like paid time off from work, they will say ‘yes.’ My axiom proved true in, for example, Arizona, Washington, Massachusetts, Milwaukee (since preempted), Oakland and San Diego, CA, SeaTac, Trenton and Montclair, NJ.  Will it hold true in Albuquerque as well?