Extraterritorial Reach of Minneapolis Sick Time Ordinance Rejected, Yet Again

When we last left the Minneapolis PSL law, the Minnesota Court of Appeals had affirmed a district court decision temporarily enjoining Minneapolis from enforcing its Sick and Safe Time Ordinance against businesses outside the City limits.  The Supreme Court of Minnesota in December 2017 declined to review the Court of Appeals’ decision, which left the appeals decision in place.  The Ordinance went into effect on July 1, 2017 with regard to businesses within the City limits only.

Since those decisions dealt only with the request for a temporary injunction, the case continued on the plaintiff’s further request that the Minneapolis PSL law be permanently enjoined because it was preempted by state law and because its purported application to businesses outside the City whose employees work within the City exceeded the City’s legislative authority.

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To attempt to address the territorial issue, in March 2018, the City amended its ordinance in two respects. Under the Ordinance, an employee who works in Minneapolis at least 80 hours per year is entitled to accrue PSL time. 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.” Continue reading

Three More Intervene in Austin Sick Time Litigation

Add three more voices to be heard in the case challenging the Austin Earned Sick Time Ordinance. Last week, a workers’ rights organization, a restaurant and an electrician, together, intervened in the case and asked the court to dismiss the challenges to the ordinance.

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Last month, a cadre of business interests filed a lawsuit seeking to enjoin implementation of the ordinance, which is scheduled to go into effect on October 1, 2018.  They claim that the ordinance is preempted by the Texas Minimum Wage Act (TMWA) and violates various provisions of the state constitution. The TMWA requires Texas employers to pay employees a minimum wage established by the federal Fair Labor Standards Act (FLSA). The State of Texas has already intervened in the case, arguing only that the Ordinance was preempted by the TMWA. My prior posts on this PSL litigation are here and here.

Texas Joins Challenge to Austin Sick Time Ordinance

The State of Texas yesterday requested to intervene in the lawsuit brought by a cadre of business interests challenging the validity of the Austin Earned Sick Time Ordinance. While the lawsuit seeks to invalidate the ordinance on both preemption and constitutional grounds, in its plea to intervene, Texas argues only that the Austin ordinance is preempted by the state Minimum Wage Act (MWA).  That law requires Texas employers to pay employees a minimum wage established by the federal Fair Labor Standards Act (FLSA).

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The State’s preemption argument is very similar to that made by the plaintiffs in the lawsuit: that the MWA supersedes a wage established by a municipal ordinance, and that the Austin ordinance establishes a wage because it goes beyond the FLSA in two respects: it requires employers to pay wages for hours not worked and that employee pay be based on the hour or day rather than a work week.

Dallas and San Antonio will likely follow this case very closely since petition drives are underway in both cities to have voters consider paid sick time initiatives in November.

Austin Earned Sick Time Ordinance Unenforceable, Suit Says

No need for a new Texas law to preempt the Austin Earned Sick Time Ordinance because it is already preempted and unconstitutional, according to a lawsuit filed Tuesday by a cadre of business interests.  The lawsuit launches three broad challenges to the Austin ordinance and seeks to enjoin it from ever going into effect. It alleges that the ordinance:

  • is preempted by the Texas Minimum Wage Law which requires employers to pay the federal minimum wage under the FLSA and the FLSA 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 because the “articulated governmental interests are factually unsupported,” “…its mandates “have no rational connection to furthering those interests” and even if they did, the mandates are “so burdensome as to be oppressive in light of the alleged governmental interest”; 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.

The lawsuit alsaustin-247_1920o alleges that the section of the Austin ordinance that allows for administrative subpoenas is an unconstitutional search and seizure because it does not provide for “judicial review before being required to comply” with the subpoena.

On May 29, 2018, a hearing will be held on the plaintiff’s request for a temporary injunction, according to the suit.

 

 

 

Airline Group Challenges Washington Paid Sick Leave Act’s Application to Flight Crew

The Washington State Paid Sick Leave Act (WPSL) as applied to pilots and flight attendants is unconstitutional and preempted by the federal Airline Deregulation Act (ADA), according to a complaint filed last week in federal court by the Air Transport Association of America, doing business as Airlines For America (A4A), an association of airline carriers.  Complying with the various paid sick leave laws that could apply to flight crew will lead to “mass confusion.” Applying the WPSL to flight crew will lead to “delays, cancelled departures and, in some cases, closed bases of operations,” according to the complaint.

The WPSL law is unconstitutional because it violates both the “dormant” Commerce Clause and the Fourteenth Amendment, according to the complaint.  The Commerce Clause gives Congress authority to regulate interstate commerce. The dormant Commerce Clause is a misnomer since it not a clause at all. Rather, it is the concept that implicit in the affirmative grant of authority to Congress is an implicit restriction on the ability of state and local governments to impose an unreasonable burden on interstate commerce.

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The Fourteenth Amendment states: No state shall make or enforce any law which shall abridge the privileges or immunities of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law.” The complaint alleges that because “the bulk of the work done by A4A’s member airlines’ flight crews is wholly or mostly outside of Washington’s borders, the [WPSL] constitutes an extraterritorial application of Washington law in violation of the Fourteenth Amendment.”

The plaintiff also alleges that the ADA preempts the WPSL law because it relates to a “price, route or service of an air carrier,” because, for example, the WPSL “impedes A4A’s member airlines’ abilities to enforce attendance and reliability policies designed to ensure safe on-time and efficient operations.”

The plaintiff seeks a declaration that the WPSL law is unconstitutional and preempted by the ADA with regard to flight crew and an injunction prohibiting the Washington Department of Labor and Industries from enforcing the WPSL against member airlines.

Washington voters approved Initiative 1433—the WPSL law–in November 2016. It went into effect on January 1, 2018. A state court last year rejected claims brought by a cadre of business interests that the law violated the state constitution. My post on that decision is here.

Turning the Paid Sick Leave Page to 2018

As we turned the PSL page to a new year, the vast and complex patchwork of PSL laws consisted of more than 40 laws: 8 state laws, the District of Columbia, 2 county laws and about 30 municipal laws.

The Rhode Island Healthy and Safe Families and Workplace Act was the only PSL law enacted in 2017, the fewest number of PSL laws enacted in a year since 2011.  The Maryland and Nevada legislatures passed PSL bills last year but, in each case, the governor vetoed the bill. On January 11, 2018, the Maryland legislature overrode that veto, making Maryland the ninth PSL state.

In the only 2017 PSL referendum, Albuquerque voters very narrowly rejected the Healthy Workforce Ordinance.  Prior to the vote, lawsuits challenged the manner in which the proposal would be printed on the ballot and its constitutionality.

Paid Sick Leave Laws Effective in 2017

Nine PSL laws went into effect in 2017. While the Spokane ordinance is one of these, it “sunset,” became null and void, on January 1, 2018.  Also, while the Cook County ordinance went into effect in 2017, approximately 80% of the municipalities within the County have opted out of complying with the Ordinance. The nine are:

States

Other political subdivisions

Paid Sick Leave Laws Effective After 2017

States

Other political subdivisions

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Paid Sick Leave Bills Introduced During 2017 Continue reading

Paid Sick Leave Quarterly: 4Q 2017

As we wrap up the last quarter of 2017, the vast and complex patchwork of PSL laws consists of more than 40 laws: 8 state laws, the District of Columbia, 2 county laws and about 30 municipal laws. My reports on the first three quarters of 2017 are here, here and here.  My 2017 fourth quarter PSL report is below.

In January, i will post a summary of 2017 PSL developments. In that post, I will also name the winner of the “2017 Paid Sick Leave Patchwork Award” to recognize the jurisdiction that has made the greatest contribution to the PSL patchwork in 2017. I suspect that most who follow this blog could guess the winner quite easily.

Paid Sick Leave Laws Effective This Quarter

Paid Sick Leave Laws Effective After This Quarter

  • New York City (amendment): New York City amended its Earned Sick Time Act to allow employees to use accrued time for reasons related to domestic violence. The law, now called the New York City Safe and Sick Time Law, is effective  May 7, 2018.
  • Rhode Island Healthy and Safe Families and Workplace Act (July 1, 2018).
  • Seattle, WA (amendment). On December 15, Seattle amended its Paid Sick and Safe Time Ordinance “to incorporate the more generous provisions of voter-passed, Washington Initiative 1433 establishing statewide paid sick leave.” Generally, where the state law is more generous than the Seattle ordinance, this amendment raises the ordinance standards to that state level. Among the changes, the Seattle ordinance now applies to employers with just one employee (it previously applied to employers with at least four employees); has expanded “family member” definitions; eliminates caps on the use of accrued time; and reduces the waiting period for use of accrued time from 180 to 90 days.  It is effective 30 days after enactment.
  • Tacoma, WA (amendment). Tacoma amended its PSL law to align it more closely with the Washington PSL law. The amendment is effective January 1, 2018.
  • Washington Law Establishing Fair Labor Standards by Requiring Employers to Provide Paid Sick Leave to Employees (January 1, 2018).

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Paid Sick Leave Bills Introduced This Quarter

Maryland: Governor Hogan recently proposed the Paid Leave Compromise Act, which would gradually reduce the size of an employer required to provide paid leave from fifty employees in 2018, to forty employees in 2019, to 25 employees in 2020 and subsequent years.  It would allow employees to use accrued time for any reason. The compromise bill is an attempt to avoid a January PSL showdown over the Governor’s veto last spring of a PSL bill passed by the General Assembly.

Albuquerque: Just ten weeks after voters narrowly rejected the Healthy Workforce Ordinance, on December 18, the Albuquerque Sick Leave Ordinance was introduced in the City Council. It has the typical PSL-ordinance architecture. The Ordinance would require employers with at least 50 employees to allow employees to accrue one hour of paid sick leave for every 40 hours worked, with a maximum accrual and use of forty hours annually, and carryover of up to forty hours of unused time.

Paid Sick Leave Preemption Developments

Alabama: Marnika Lewis v.  State of Alabama et al. (11th Cir) (Case No.17-11009). In February 2017, a federal court judge rejected challenges to the Alabama Uniform Minimum Wage and Right-to-Work Act, which bars political subdivisions from requiring employers to provide employees with wages or “employment benefits” not required by federal or state law.  An“employment benefit” includes paid and unpaid leave. The plaintiffs have appealed to the U.S. Court of Appeals for the Eleventh Circuit. Oral argument on the appeal is likely to be held in the first quarter of 2018.

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.

Federal: The Workflex in the 21st Century Act, introduced in the House of Representatives in November, 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 paid leave policies in December.

Paid Sick Leave Litigation

 Challenges to state PSL laws

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 in June 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.  2017).

Challenges to local PSL laws 

Pittsburgh, PA: The Supreme Court of Pennsylvania has agreed to hear an appeal concerning the City of Pittsburgh’s authority to enact the Sick Days Act, which it enacted in August 2015. In May, an appellate court affirmed a lower court’s decision that the city did not have the authority to enact it and invalidated the Act.  The lone dissenting judge said that Pittsburgh had the right to protect the health and safety of its residents and that the Sick Days Act  was an exercise of that right. 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….”

Other Paid Sick Leave Developments To Watch

Austin, TX: The Austin City Council voted in September to consider requiring private employers to offer employees paid sick leave.  Austin has held three meetings to obtain the views of the community.  The city staff will submit a recommendation to the City Council for its consideration.

Duluth, MN: The Duluth Safe and Sick Time Task Force presented its report to the City Council on November 20. The majority recommendation has the typical PSL-ordinance architecture, though the task force lacked a consensus on an annual cap or carryover provisions. A second recommendation 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.

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 November 2018. Proponents have until early Spring 2018 to collect enough signatures.

Portland, ME. The mayor has presented his  proposed Earned Paid Sick Time for Workers Ordinance to the City Council. It has been referred to the Health and Human Services Committee “for further research and deliberation.” The ordinance has the typical PSL-architecture: 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.

Spokane:  In response to voters having approved a state-wide PSL bill in November 2016, Spokane amended its PSL law to “sunset,” i.e., have no effect, upon the effective date of the state law, i.e., January 1, 2018.