The Board of Trustees of the Village of Glenview last week opted in to the Cook County Earned Sick Leave Ordinance, effective July 1, 2019. The Glenview Board had opted out of the County PSL ordinance in June 2017, just weeks before its effective date. Glenview joins the villages of Northbrook, Wilmette and Western Springs as municipalities that had initially opted out before opting in.
The political change of heart in Glenview comes three months after the November 6 advisory ballot initiative in which nearly 90% of voters in municipalities that had opted out of the County law urged their municipality to enact a paid sick leave ordinance. Approximately 80% of the County’s municipalities have opted out of its Earned Sick Leave Ordinance. My “nix list” is here.
The agenda packet relating to last week’s meeting of Glenview’s Board of Trustees included an interesting bit of information about the enforcement of the County PSL ordinance. A comment in that packet notes that the County Human Rights Commission, which enforces the County’s PSL law, has stated that “to date there have been no claims filed by employees against Cook County employers regarding violations” of the Earned Sick Leave Ordinance.”
They were against it twice before they were for it. The Wilmette Village Board on Wednesday opted in to the Cook County Earned Sick Leave Ordinance. The Wilmette Board had opted out of it in June 2017 and again in June 2018.
The political change of heart comes three weeks after the November 6 advisory ballot initiative in which nearly 90% of voters in municipalities that had opted out of the County law urged their municipality to enact a paid sick leave ordinance.
Earlier this year, before the November referendum, the villages of Northbrook and Western Springs opted in to the County PSL law after having initially opted out. Other municipalities are expected to revisit their opt out decision as well.
Approximately 80% of the County’s municipalities have opted out of the its Earned Sick Leave Ordinance. My “nix list” is here.
In the only PSL ballot initiative last week, nearly 90% of voters in Cook County municipalities that had opted out of the County’s Earned Sick Leave law voted in favor of their municipality enacting an ordinance matching the County’s PSL law.
The County Board of Supervisors had assigned the following advisory referendum question for the November 8 ballot:
Shall your municipality match the CookCounty 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?”
With 95% of precincts reporting, 89.37% of voters favor a matching municipal PSL.
Approximately 80% of the County’s municipalities had opted out of the County’s Earned Sick Leave Law, which went into effect in July 2017. My “nix list” is here.
The outcome of last week’s advisory vote comes as no surprise. When asked whether they would like more paid time off, voters almost always say ‘yes’ by a wide margin. The Board of Supervisors, I suspect, is counting on that voter sentiment to pressure the municipalities that had opted out to either opt back in to the County ordinance or enact a municipal ordinance matching the benefits of the County ordinance. Earlier this year, two villages–Northbrook and Western Springs– repealed their opt-out ordinance, effectively agreeing to be subject to the County PSL law.
Michigan and San Antonio were slated to have PSL ballot referenda but in both situations, the legislature took the issue from the voters and enacted the PSL law that would have been on the ballot.
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 report. Texas 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.
Michigan this week could become the eleventh state to enact a paid sick leave law. It all depends on how the politics play out in the Wolverine State.
PSL proponents collected enough signatures to have voters decide in November whether to enact a PSL initiative. The Michigan Constitution gives the legislature the option to enact or reject the initiative and sets a deadline for its doing so. That deadline expires this Friday, September 7. If the legislature enacts the initiative, it becomes law; if it rejects the initiative, it will be presented to the voters in November. the legislature could also present an alternate PSL proposal to voters in November.
Why would a state with a Republican trifecta—-a Republican governor and GOP control of both the House and Senate—choose to enact a PSL law rather than let the voters decide whether to enact it in November?
Just speculating, of course, but one reason might be that a bill enacted by the legislature is easier to amend than one enacted through an initiative. Amending a legislative enactment requires a majority vote in each chamber; amending a law enacted through an initiative requires a three-fourths vote in each chamber. The legislature could enact the initiative and then promptly amend it, the speculation goes.
Another possible reason is that there are three voter initiatives slated for November. in addition to the PSL initiative, the ballot will also include initiatives to legalize recreational marijuana and increase the minimum wage. This combination of initiatives could lead to a large voter turnout in November, which might be detrimental to some candidates, the speculation goes.
With each passing day, the PSL-suspense in Michigan grows. Three days to go.
With a GOP trifecta–the governor is a Republican and both chambers of the legislature have a Republican majority–one would not expect much PSL activity in Texas. But PSL turbulence continues in the Lone Star State and was on full display last week.
Last Friday, a Texas Court of Appeals enjoined the implementation of the Austin Earned Sick Time Ordinance pending the outcome of the legal challenge to it. The Austin Ordinance had been scheduled to go into effect on October 1, 2018. In reversing last month’s district court decision, the Court said that “enjoining the ordinance is necessary to preserve the parties’rights until disposition of the appeal.”
In San Antonio, PSL proponents had collected enough signatures to have voters decide in November whether to adopt a PSL ordinance. On Thursday, the San Antonio City Council passed the PSL proposal, nullifying the ballot initiative. The San Antonio PSL ordinance is scheduled to go into effect on August 1, 2019.
Here is where the GOP trifecta is a factor. The Texas Legislature convenes in January 2019. It is widely anticipated that the legislature will consider a bill to prohibit political subdivisions from enacting a leave law. If enacted, such a law would likely negate both the Austin and San Antonio ordinances.
I suspect that San Antonio business interests are huddling this week to decide whether to file a challenge similar to that pending in Austin or sit on the sidelines and hope that the Austin ordinance (and, in turn, the San Antonio ordinance) will be negated by either the court or the legislature.
There’s more PSL turbulence in Texas, and more to come.
After spending months last spring tracking the blitz of municipal opt outs from the Cook County Earned Sick Leave Ordinance, and after more than 80% of municipalities in the County were on my “nix list,” I had posted that we may have seen the end of the voting on the County’s ordinance. Alas, it was not to be.
Undeterred by the overwhelming rejection of its sick leave ordinance by its municipalities, the County Board of Supervisors last week decided to try a PSL end-around by taking the issue to the voters directly. The Board decided to include an advisory referendum question on the November 6, 2018 ballot to ask voters:
Shall your municipality 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?
The import of the question seems apparent. When asked whether they would like more paid time off, voters almost always say ‘yes.’ The Board of Supervisors, I suspect, is counting on that voter sentiment to pressure the municipalities that had opted out to either opt back in to the County ordinance or enact a municipal ordinance matching the County ordinance.
Earlier this year, two Cook County municipalities revisited their decision to opt-out of the earned sick leave ordinance. Western Springs voted to opt-in to the ordinance; Wilmette Village voted to continue to opt-out.
November is shaping up to be the PSL month of the year. In addition to the Cook County advisory vote, voters in Michigan and San Antonio will be voting on PSL ballot initiatives.