Paid Sick Leave Turbulence in Texas

There’s paid sick leave turbulence in the Lone Star State. Austin passed its PSL ordinance in February, the first PSL law in the South.   Last month, PSL advocates in San Antonio submitted signatures to support their effort to have voters decide in November whether to enact a PSL ordinance. And this week, PSL advocates in Dallas have submitted signatures in support of a similar November ballot initiative there.

texas-1656861_1920

PSL opponents have been busy as well. In April, a cadre of business interests sued to enjoin the implementation of the Austin ordinance, which is effective in October. It claims the ordinance violates the state constitution and is preempted by the Texas Minimum Wage Law which requires employers to pay the federal minimum wage under the FLSA and does not require employers to pay for time not worked as the Austin PSL ordinance does.  The State of Texas has intervened in support of the minimum wage argument. PSL advocates have intervened to defend the ordinance.

Beyond that, Texas Governor Greg Abbott has been vocal in his displeasure with local PSL laws (see here), raising the possibility that if the Austin ordinance survives the litigation, the next threat to its existence may be a preemption law. Texas preemption laws have recently banned local ride-share regulations, fracking bans and sanctuary cities.

The first PSL ordinance in the South, two ballot initiatives, a PSL litigation cloud , and a possible preemption law combine to create PSL turbulence in Texas.

 

 

Paid Sick Leave Ballot Initiatives in Michigan and San Antonio

Voters in Michigan and San Antonio (TX) may have the opportunity in November to enact a paid sick leave law.  PSL proponents in both jurisdictions recently submitted what they claim are a sufficient number of valid signatures to support the initiative although neither initiative has yet to be formally certified. As I have posted often, when voters have an opportunity to vote for paid time off, the odds are very high that they will approve that measure.  Voters have rejected more paid time off only twice, in Denver (2011) and Albuquerque (2017).

ballot-1294935_640

Michigan is not new to the PSL debate. In 2015, it enacted a preemption law prohibiting local governments from requiring an employer to provide paid or unpaid leave time. Efforts to enact a statewide PSL law through either legislation or a ballot initiative have been unsuccessful. The proposed PSL law which may be on the November 2018 ballot is here.

Pending legal challenges to the recently enacted Austin Earned Sick Time Ordinance will likely affect the San Antonio PSL effort. In April, a cadre of business interests filed a lawsuit seeking to enjoin implementation of the Austin ordinance, which is effective 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 State of Texas has intervened in the case, arguing only that the Ordinance was preempted by the TMWA. A few weeks ago, 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.  The San Antonio proposed ordinance is modeled after, if not identical to, the Austin ordinance. My prior posts on this PSL litigation are here and here and here.

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.

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.

courthouse-1223280_640

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.

Paid Sick Leave Focus Shifts to Albuquerque Lawsuits

After spending most of the past few months on the [20% of] Cook County Earned Sick Leave Ordinance, the PSL focus shifts to Albuquerque, the Duke City.

Two lawsuits are pending concerning the Albuquerque ballot referendum on the Healthy Workforce Ordinance (HWO)–one brought by HWO proponents, the other by opponents.

My earlier post concerning the judge’s recent decision in the proponents’ lawsuit was based on a newspaper report. Thanks to a little help from my friends, I now have the judge’s decision, which adds some insight. According to that decision:

  • The HWO will be on the October 3, 2017 ballot, and will be printed in 7-point type on a single two-sided page, 8 1/2 in. X 19 in,;
  • The City will have “magnifier devices” and copies of the proposed HWO in 12-point type available to voters at the polling places;
  • The City’s proposed “advisory question” is stricken from the ballot because it “employs semantically ‘loaded’ terms and clearly implies that the proposed HWO is not transparent, fair, wise or workable. It is likely to mislead, confuse, or misdirect the voters….[and] is an inappropriate attempt to inject political advocacy onto the ballot and into the election process.”
  • The stricken proposed advisory question asked: “Shall the governing boy of CABQ [City of Albuquerque] promptly enact a sick leave ordinance in a manner that promotes pubic participation, public hearings, transparency and fairness so that a wise and workable sick leave policy is adopted…””

Concerning the opponents’ litigation, a hearing was held in court yesterday. The judgechopped-wood-1846182_1920 did not issue a decision on the HWO at the hearing. My post about that “single subject,” aka “logrolling,” case is here.

Finally, for those who have not had enough of the [20% of] Cook County Earned Sick Leave Ordinance, I added the Village of Dixmoor to my opt out list, which now has 110 entries.

 

 

Second “Single Subject” Challenge to Voter-Approved Paid Sick Leave Rejected

The challenge to the constitutionality of the Washington State November 2016 voter referendum approving paid sick leave and a minimum wage increase has been rejected. A similar challenge to last year’s Arizona referendum approving paid sick leave and a minimum wage increase was rejected by the Arizona Supreme Court a few weeks ago.

courthouse-1223280_640

In Washington, a cadre of business interests argued that the voter initiative violated the state constitution because it combined two “distinct and unrelated matters” in one bill.

Rejecting that argument, the Kittitas County Superior Court judge held that the ballot title referenced “labor standards”; that minimum wages and paid sick leave are compensation, a subset of “labor standards”; and that “rational unity” exists between the title and content of the Initiative.  The court also held that the ballot title gave voters adequate notice of the issues within and that the initiative could “stand alone,” without reference to amending any other law, because mandatory paid sick leave was a “new category of employee leave.”

The judge’s three page ruling relied extensively on a 2015 Supreme Court of Washington decision rejecting a similar challenge to a bill providing paid sick days and minimum wage increase in SeaTac, Washington.

Another “single subject” legal challenge to a voter referendum is pending in New Mexico.  There, a cadre of business interests have challenged this fall’s anticipated ballot initiative on paid sick leave.  They claim that combining the fourteen “non-interdependent” provisions into one voter initiative is “logrolling” in violation of  the state constitution. My post on that lawsuit is here.

 

Washington Lawsuit Challenges Voter-Approved  Paid Sick Leave and Minimum Wage Increase

Add a challenge to the State of Washington’s new paid sick leave law to the PSL litigation docket.  A cadre of business interests sued the state last week, seeking a declaration that Initiative 1433 violates the Washington Constitution.  More than 57% of Washington voters approved Initiative 1433 last November.ballot-1294935_640

It requires employers to provide paid sick leave beginning on January 1, 2018 and increases the state minimum wage in installments, the first having occurred on January 1, 2017.

The complaint alleges that the Initiative is unconstitutional  because:

It combined two “distinct and unrelated matters,” i.e, the minimum wage and paid sick days, in violation of the Constitution’s prohibition on including more than one subject in a bill (the plaintiffs challenging Proposition 206 in Arizona also made a “Separate Amendment Rule” argument; see here;

It’s title–“labor standards”–did not give adequate notice of its purpose in violation of the Constitution’s requirement that the subject of the bill “shall be expressed in the title;” and

It does not include all of the language of the laws it is amending in violation of the Constitution’s requirement that an “act revised or the section amended shall be set forth at full length” in the proposed revision or amendment.

Other lawsuits challenging PSL laws are pending in Arizona, Oregon, Pittsburgh and Minneapolis. Most recently, an Alabama federal court dismissed a challenge to a state law prohibiting political subdivisions from enacting wage and employee benefit ordinances, including paid sick leave, not required by federal or state law.  See my post about that decision here.