Paid Sick Leave Quarterly: 3Q 2019

The PSL turbulence in Texas garnered most of the PSL headlines in the third quarter. How that turbulence ends will determine the fate of PSL ordinances in Austin, Dallas and San Antonio. This quarterly 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

  • In August, Bernalillo County Commissioners (NM) enacted an “any reason” leave law. The Employee Wellness Act applies to employers in the unincorporated limits of the County, which excludes the  City of Albuquerque. The County ordinance has the typical PSL architecture less the list of approved uses. In October, 2019, the Commissioners amended the law to include annual caps on paid leave accrued based on the size of the employer and removes the 90 day wait period to begin accruing leave. The  ordinance at the link above includes the amendments.

Paid Sick Leave Preemption Developments

Alabama:  The Eleventh Circuit Court of Appeals en banc will resolve the challenge to Alabama’s minimum wage and employment benefits preemption law. The Court heard 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. In July 2018, a three-judge panel of the Eleventh Circuit affirmed the lower court’s dismissal of all claims except the “equal protection” constitutional claim. Marnika Lewis v.  State of Alabama et al. (11th Cir) (11th Cir. Case No.17-11009).

Paid Sick Leave Litigation

 Challenges to state PSL laws

Washington: A federal district court has rejected claims by an association of airline carriers that the  Washington State Paid Sick Leave Act (WPSL) as applied to flight crew was unconstitutional and preempted by the federal Airline Deregulation Act (ADA).  The plaintiff had claimed the WPSL violated 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 had also claimed the ADA preempts the WPSL law 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. The Washington Dep’t of Labor and Industries et al (W.D. WA. October 11, 2019).

Massachusetts : The same plaintiff-airline association in the Washington case also sued in Massachusetts, arguing that the Massachusetts Earned Sick Time Law (MESTL) as applied to flight crew is unconstitutional and preempted by the federal Airline Deregulation Act (ADA), 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, Case No. 1:18-cv-10651,  filed 04/04/18).

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 heard oral argument on July 17, 2019. The first of three questions listed in the Court’s Order concern whether it should exercise its discretion and issue the requested advisory opinion.

Challenges to local PSL laws

Austin, TX: In November 2018,  a Texas appellate court ruled that the Austin Earned Sick Time Ordinance is unconstitutional because it is preempted by the Texas Minimum Wage Act (TMWA). 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. If the court decides to hear the case, its decision will likely affect the Dallas and San Antonio PSL ordinances as well. City of Austin, Texas et al v. Texas Ass’n of Business et al  (TX SupCt No. 19-0025).

Dallas, TX: The Dallas City Council passed an Earned Paid Sick Time Ordinance in April. In July, the Texas Public Policy Foundation on behalf of two employers sued to enjoin its implementation and sought a preliminary injunction. The case is pending. ESI/Employee Solutions, LP et al v. City of Dallas et al (E.D.TX,  Case 4:19-cv-00570).Dallas has announced that it “will not enforce the Ordinance except for violations of the anti-retaliation provision, until April 1, 2020.”

San Antonio, TX: The original San Antonio Earned Paid Sick Leave Ordinance was to be effective August 1. On July 15, a cadre of business interests had filed a lawsuit seeking to enjoin implementation of the ordinance. The lawsuit raised a myriad of constitutional claims as well as the TMWA preemption claim. The plaintiffs and defendants had agreed to postpone the ordinance’s implementation date until December 1, 2019. On October 3, 2019, the San Antonio City Council amended its PSL law, now renamed the San Antonio Sick and Safe Leave Ordinance, which is scheduled to go into effect on December 1, 2019.  The lawsuit  had been stayed but remains pending.  Associated Builders & Contractors of South Texas et al v. City of San Antonio et al (Bexar County Court, 408th Judicial District; Cause No. 019CI13921).

New York City: American Airlines sued the NYC Department of Consumer Affairs alleging arguments similar to those raised in the Washington and Massachusetts cases described above. In addition, American alleges that the New York City Earned Safe and Sick Time Act as applied to its flight crews “violates the prohibition against extraterritorial application of local laws under New York” and is void for vagueness. American also alleges it complies with the PSL law for some of its ground crew because their collective bargaining agreement expressly waives the PSL law and provide a comparable benefits in the form of paid days off. American Airlines, Inc. v. NYC Dep’t of Consumer Affairs et al (E.D.N.Y. Case 1:19-cv-04424l, filed 08/01/19). The suit also seeks to enjoin NYC’s enforcement action filed July 24, 2019 against American at the Office of Administrative Trials and Hearings.

Pittsburgh: The Supreme Court of Pennsylvania held in July the City of Pittsburgh had authority to enact the Paid Sick Days Act. This opinion reverses a lower court opinion and frees the PSDA from the legal limbo it has been in since its enactment in 2015. The PSDA hews to the typical architecture of a PSL law. Employees of employers with at least fifteen employees accrue one hour of paid time for every 35 hours worked, to a maximum of 40 hours annually. Employees of smaller employers accrue up to 24 hours of unpaid sick time during the first year of the PSDA’s implementation and up to 24 hours of paid time subsequently.

Other Paid Sick Leave Developments To Watch

  • With primary campaign season in full swing, many of the candidates support some form of paid leave. Ballotopedia compiled the candidates’ statements about paid leave here.
  • Some states with PSL laws have enacted paid family and medical leave laws which, in effect, are a significant expansion of their PSL laws.  Eight states now offer paid family and medical leave: CA, CT, MA, NY, NJ, OR, RI, WA. .

Pittsburgh Sick Leave Law Upheld

The Supreme Court of Pennsylvania held recently the City of Pittsburgh had authority to enact the Paid Sick Days Act. This opinion reverses a lower court opinion and frees the PSDA from the legal limbo it has been in since its enactment in 2015.

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The Court’s July 17 decision was based on the state’s Home Rule Charter Law which limits the City’s authority to regulate business “except as expressly provided by statutes…” Determining the scope of that business exception is a “vexing question,” the Court said but held that Pittsburgh has the right to protect the health and safety of its residents under various statutes and that the PSDA was an exercise of that right.

Enforcement of the PSDA had been enjoined pending the outcome of the legal challenge to it.  It is unclear when Pittsburgh will begin enforcing the PSDA and how it will deal with the fact that employers were supposed to have allowed employees to accrue and use sick leave for the past 3 1/2 years.

The PSDA hews to the typical architecture of a PSL law. Employees of employers with at least fifteen employees accrue one hour of paid time for every 35 hours worked, to a maximum of 40 hours annually. Employees of smaller employers accrue up to 24 hours of unpaid sick time during the first year of the PSDA’s implementation and up to 24 hours of paid time subsequently.

Sick Leave Turbulence in Texas Continues

More than a year ago, I posted about the paid sick leave turbulence in the Lone Star State. The turbulence lives on.

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Austin, San Antonio and Dallas have enacted PSL ordinances. Cadres of business interests have sued to enjoin each.

It started in Austin. Last November,  a Texas appellate court ruled that the Austin Earned Sick Time Ordinance is unconstitutional because it is preempted by the Texas Minimum Wage Act (TMWA). 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.

The San Antonio Earned Paid Sick Leave Ordinance was to be effective today, August 1. On July 15, a lawsuit was filed seeking to enjoin implementation of the ordinance. The lawsuit raised a myriad of constitutional claims as well as the TMWA preemption claim. The plaintiffs and defendants have agreed to postpone the ordinance’s implementation date until December 1, 2019.

The Dallas Earned Paid Sick Time Ordinance is also scheduled to be effective today. Two days ago, a cadre of business interests sued to enjoin its implementation.

Meanwhile, the Texas Legislature failed to enact a PSL preemption law this past session, which many had thought would make litigation unnecessary.  As of now, the viability of the three PSL ordinances lie with the judiciary.

More PSL turbulence to come in Texas before it settles down, I suspect.

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.)