Cook County Nix Flurry as the End Nears

Come Alsip and Bridgeview and Burbank and Bellwood.

Come Hillside and Justice and River Grove and Homewood.

Come Orland Park and Palos Heights and Maywood.NIX

Welcome these Cook County municipalities to my nix list, those that have opted out of the county Earned Sick Leave Ordinance.  My list is now 45 municipalities long, which is approximately one-third of the municipalities within Cook County.

I posted last week that opting out of the county ordinance will be ending soon because the ordinance becomes effective July 1, 2017.  I continue to watch a handful of municipalities which will be voting soon on whether to opt out. I am also researching a few other municipalities which, supposedly have opted out, but I have been unable to confirm that they had, in fact, done so.  (If any readers know of any others, please let me know.) I speculate that come July 1, 2017, between fifty and fifty-five municipalities will have opted out of the county sick leave law.

I have listed the Cook County nix list on the PSL Laws and Resources page of my blog, just below the link to the Cook County Ordinance.

Cook County enacted the ESL Ordinance in October 2016. Generally, it requires covered employers to allow employees to accrue one hour of paid sick leave for every 40 hours worked. My posts about that Ordinance are here and here.

Labor Contract Enigma in Westchester County Paid Sick Leave Bill

Westchester County legislators and union officials this week held a press conference to introduce a bill that would allow employees of employers in the County to earn up to 40 hours of paid sick leave annually.

The enigma is that it does not guarantee any sick days to employees covered by a labor contract.  Section 700.49 states that, in their labor contract, employers and unions in the grocery and constructions industries can waive the benefits and protections of the bill. Having a sick deli worker slicing your liverwurst or a sick cashier touching your groceries is no different than the fast food worker offering “flu with your fries?”

retro-1291745_1920For industries other than grocery and construction, Section 700.49 allows employers and unions to waive the PSL law in their labor contract if they include “a comparable benefit.” A “comparable benefit” includes premium pay on holidays and Sundays as well as vacation time, personal time and sick time.

Is “premium rates on holidays and Sundays” “comparable” to PSL?  One has nothing to do with the other. To state the obvious, premium pay is not time off from work. Having premium pay in a labor contract still leaves the sick employee having to choose between coming to work ill and a paycheck. In fact, premium pay may give a sick employee the incentive to come to work, which is the opposite of what a PSL law should do.

Also, just because a labor contract has premium pay for holidays and Sundays, and nearly all of them do, does not mean that the employee will ever have the opportunity to work on those premium pay days. In that case, the employee loses on both fronts–no sick days and no premium pay.

Why the linguistic gymnastics to deny bargaining unit employees paid sick days? It is “a riddle wrapped in a mystery inside an enigma,” to borrow a phrase from Winston Churchill. I have posted this entreaty before: help me understand.

Newton’s Third Law of Motion and Paid Sick Leave

Sir Isaac Newton’s Third Law of Motion, or a variation of it, is at work with paid sick leave laws. The Third Law states that for every action, there is an equal and opposite reaction.

Let’s look at a few examples. I posted earlier this week about a federal court’s decision upholding Alabama’s preemption law, which bars political subdivisions from requiring employers to provide employment benefits or compensation not required by federal or state law. As I noted in that post, the initial “action” was the City of Birmingham’s passing an ordinance to increase the minimum wage. The State of Alabama’s “reaction” was to pass its preemption law, an opposite but superior reaction since states dictate the authority of its political subdivisions.

Then there is Minnesota. Two cities–Minneapolis and St. Paul–have enacted paid sick leave laws while a third, Duluth, is studying the issue. Legislators in the Minnesota House and Senate have introduced legislation to preempt a politician subdivision’s ability to require employers to provide any paid leave benefits beyond those required by federal or state law, i.e., a preemption law. The state’s superior reaction would void the two city ordinances and likely end the study in Duluth.

Will the Minnesota bill pass? Applying my less than scientific analysis, described here, it is unlikely to pass. Minnesota is a blue state, giving Secretary Clinton 49.6% of the votes last November. While Republicans control both the Senate and House of Representatives, Governor Mark Dayton is a Democrat. Assuming he would veto the bill, it would take two-thirds of each house to override his veto, a margin the Republicans do not have in either house. Bottom line: a preemption law is unlikely to get enacted in Minnesota. Continue reading

Business-Plaintiffs Win Some, Lose Some in Effort to Enjoin Minneapolis Paid Sick and Safe Time Law

A cadre of business interests which sought to enjoin enforcement of the Minneapolis Sick and Safe Time Ordinance won half a loaf last week. A Hennepin County District Court judge declined to enjoin the Ordinance with regard to businesses within the geographic boundaries of Minneapolis but enjoined its enforcement with regard to businesses outside those boundaries.

Judge Mel I. Dickstein’s decision deals only with the injunction request, not the merits of the claims. The judge said he will schedule a hearing on the merits before July 1, 2017, the effective date of the Ordinance.

The plaintiffs had argued that state law preempted the field which included employer-provided sick and safe leave and that, as a result, Minneapolis did not have the authority to enact the Ordinance. They also argued that the Ordinance conflicted with state law. The judge rejected both arguments.

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The plaintiffs had also argued that the Ordinance was invalid because of its extraterritorial reach. The Ordinance defines “employee” as one who works in Minneapolis for at least eight (80) hours in a year. Through this “long-arm” provision, any employer in the world who sends an employee to Minneapolis for as few as 80 hours per year must comply with the Ordinance. In enjoining enforcement with regard to these “extraterritorial” employers, Judge Dickstein noted that Minneapolis “is not free to impose its public policy initiative on companies beyond its territorial jurisdiction.”

This litigation, no doubt, is being watched closely by two other Minnesota cities. St. Paul’s sick and safe time ordinance has the same long-arm “employee” definition as Minneapolis. Duluth has a task force working on a recommendation concerning a safe and sick law.

Life’s Rich Paid Sick Leave Pageant

Can we talk? I mean can we really talk about paid sick leave? As we embark on 2017, let’s step back and look at the PSL muddle that has been wrought. Rube Goldberg could not devise such a complicated scheme. Let’s review:

Seven states and D.C. have enacted PSL laws. A legal challenge to Arizona’s law is pending. Arizona won the first round. In Oregon, nine counties as employers sued, arguing that the state law is an unconstitutional unfunded mandate and they need not comply. They won the first round.

Fifteen states have banned their political subdivisions from enacting a PSL ordinance. Alabama passed its law to nullify Birmingham’s ordinance increasing its minimum wage. Among the legal challenges to the Alabama law is that it is tainted with racial animus and violates the federal Voting Rights Act.

Two counties have PSL laws. Cook County, Illinois enacted its law despite the Cook County State’s Attorney’s advice that it had no authority to do so and that municipalities within the county could opt out of complying with it. Three have already done so. In Maryland, the governor has announced that he will have a PSL law introduced this legislative session. Montgomery County, Maryland is concerned that Maryland’s law would negate its county law. A preemption battle looms.

30 municipalities have enacted PSL laws. 13 municipalities in New Jersey have enacted a PSL ordinance although New Jersey itself does not have such a law. 8 municipalities in California have enacted a PSL ordinance. California has a PSL law as well. Continue reading

Yet Another Opt Out from Cook County Paid Sick Leave Ordinance

The City of Oak Forest has joined the villages of Barrington and Rosemont in opting out of the Cook County Earned Sick Leave Ordinance. Oak Forest enacted its superseding ordinance last week. Since each opt out warrants an asterisk to the county ordinance, there are now three asterisks.

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Noting that the Cook County paid sick leave ordinance places an “undue burden” on Oak Forest employers, Oak Forest affirmed that employers must comply with federal and state employment laws and guidelines concerning paid sick leave. To remove any doubt, the ordinance adds that “no additional obligations with regard to paid leave….including without limitation, any additional obligations adopted by the Court of Cook Board of Commissioners, shall apply within the City Oak Forest.” The City Council Agenda Memo and text of Ordinance No. 2015-06-0545O is here.

The City of Oak Forest has approximately 28,000 residents and is about 24 miles southwest of downtown Chicago.

 

Disloyalty Toward Employer to Win Paid Sick Days Protected  

On this National Day of Disruption, when thousands of employees in major cities across the nation engaged in “Fight for $15” protests to raise the minimum wage to $15, it is only fitting and proper, as lawyers say, to write about an employee protest relating to paid sick days. Earlier this year, the Eight Circuit Court of Appeals decided such a case. MikLin Enterprises, Inc. v. NLRB (8th Cir. March 25, 2016).

The protest was part of a labor dispute. A union had been trying to organize employees of a Jimmy John’s Minnesota franchisee for years, without success. A group of employee/union supporters placed posters in various public places within two blocks of each location, encouraging readers to support their effort to “win sick days.”

The poster featured photos of two identical sandwiches, noting that the sandwich on the left had been made by a “healthy Jimmy John’s employee” while the other hadsandwich-311262_640-1 been made by a “sick Jimmy John’s employee.”  The poster stated that it was “too bad” if a reader could not tell the difference between the two sandwiches “Because Jimmy John’s Workers Don’t Get Paid Sick Days. Shoot. We Can’t Even Call in Sick.” The poster added: “We Hope Your Immune System is Ready Because You’re About to Take the Sandwich Test.”  The poster seemed to convey the “flu with your fries?” offer, albeit with your sandwich rather than with your fries. The employer discharged the “leaders and developers” of this “Sandwich Poster” campaign. Thus began five years of litigation.

The National Labor Relations Act gives private sector employees the right to engage in protected concerted activity for their own mutual aid and protection.  Employers may not punish employees for engaging in such activity. However, if the employee’s activity is sufficiently false or disloyal, the employee loses the NLRA’s protection.

The employer argued that the poster’s content was materially false and misleading because employees had called out sick and was so disloyal and disparaging that those terminated lost the protection of the NLRA. The clear message of the poster, the employer said, was that consumers “were at risk by eating its sandwiches, greatly exaggerating the potential public health problem.”

The Eighth Circuit, by a 2-1 vote, upheld the decision of the National Labor Relations Board, which administers and enforces the NLRA,  that the contents of the poster were “not so disloyal or recklessly disparaging as to lose [NLRA} protection.’  Concerning the “false and misleading” argument, the Court said that the contents were “exaggerated rhetoric,” which is “common in labor disputes and protected under the [NLRA}.”

The primary lesson from the MikLin case is a caution to employers that employees have the right to ban together and protest not just for increased wages, as in the “Fight for $15” campaign, but about any term or condition of employment, including paid sick leave .