Albany County Paid Sick Leave Public Hearing Tonight

The Albany (NY) County Legislature tonight will hold a public hearing on the paid sick leave bill it is considering. That bill entitles covered employees to accrue one hour of paid leave for every 30 hours worked, to an annual maximum of 72 hours for employers with at least ten employees, to lesser amounts for smaller employers. Here are a few issues I would like to see raised tonight.

  1. The bill states that ”[p]assage of this law guaranteeing paid sick time is necessary to ensure that all workers in Albany County” can address their own and their family’s health and safety needs. Yet, the bill does not guarantee any paid sick time to union-represented employees. It allows an employer and union to deny bargaining unit employees all of the benefits and protections of the PSL law by giving them a “comparable benefit,” one example of which is “holiday and Sunday time pay at a premium rate.”  Due to this “comparable benefit fiction” (see post here), union represented employees may still need to decide between their paycheck and their (or their family’s) health.
  2. The bill states that “the Legislature finds and determines that access to paid sick time promotes a healthy and safe county by reducing the spread of illness….” A recent study of the first two years of the New York City’s Paid Safe and Sick Leave Law found that “[f]ully 90 percent of employer respondents reported no change in the number of employees coming to work sick, with equal numbers (five percent) reporting a decrease and an increase.”  Why would the Albany County experience be different?
  3. The bill’s definition of “family member” includes “any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.” Once an employee, perhaps one with attendance issues, invokes this “like family to me” provision, how would an employer question that relationship?
  4. Shouldn’t a part time employee be required to at least try to schedule preventive care and other medical appointments during non-work time? The bill encourages part timers to schedule appointments during work time, even if they only work a day or two weekly.

Will Albany County ultimately pass a PSL bill? The County Executive is a Democrat, the legislature is solidly Democratic and almost 60% of Albany County voters cast their ballots for Secretary Hillary R. Clinton in the last presidential election.   While it is always dangerous to predict legislative outcomes, with this “blue” combination, the stars seem aligned for a PSL bill to pass. The legislature next meets on June 11.

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

Why Do Paid Sick Leave Laws Shortchange Union Employees?

Help me understand why some paid sick leave laws do not guarantee union-represented employees the same paid sick leave benefit guaranteed non-union employees. PSL proponents recite the mantra that an employee should not have to choose between his or her health, or a family member’s health, and a paycheck. Yet, many PSL laws guarantee that non-union employees will not need to make that choice, but do not make that same guarantee to union members. This is especially vexing given that labor leaders advocate strongly for PSL laws.

Take Philadelphia. Its PSL law does not even apply to employees covered by a collective bargaining agreement. PSL laws in Arizona, Maryland, Cook County, Chicago and Seattle allow unions and employers to waive employees’ PSL rights in their labor agreement.

Other jurisdictions allow PSL waivers as well:

  • In the District of Columbia, the labor contract can reduce the number of sick days bargaining unit employees receive to no less the three. The law allows employees of employers with at least 100 employees to accrue up to seven days, and employees of employers with 25 to 99 employees up to five.
  • In New York City, the labor contract can eliminate the PSL benefits for bargaining unit employees if it requires premium rates for Sunday work or has some other benefit “comparable” to paid leave. There is no requirement that an employee ever have the opportunity to work on Sunday.
  • The California law allows a labor contract to waive employees’ PSL rights if it has a provision for paid sick days, final and binding arbitration of disputes relating to those sick pay provisions, has premium wage rates for all overtime hours worked, and has regular hourly rates of pay at least 30% higher than the state minimum rate.
  • In Austin, the most recent PSL law, unions and employers can agree to a reduced cap of earned sick time. The law allows employers to have an annual cap of 48 or 64 hours, depending on the employer’s size.

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Some may surmise that a union would not agree to a PSL benefit less than that in the law. If that were so, the waiver language would be superfluous and there would be no need for labor to advocate for it. Also, anyone who has even negotiated a labor contract—and I have negotiated many—knows that collective bargaining is sausage-making at its finest. It makes legislative sausage-making look like the minor leagues.

Help me understand. I have posted that entreaty about PSL waivers before (see here, here and here).

 

 

 

Maryland Healthy Working Families Act: A PSL-4Step Analysis

The Maryland General Assembly last month overrode Governor Larry Hogan’s veto of the Healthy Working Families Act. Since the HWFA is effective in a few days, on February 11, it seems fitting and proper, as lawyers are wont to say, to post my 4Step analysis of that law.

The law requires the Commissioner of Labor and Industry to develop and post on its website (https://www.dllr.state.md.us/paidleave/) a model poster, notice, and sick and safe leave policy and to provide technical assistance to employers. As of this writing, the model documents have not yet been posted. The Commissioner also “may” adopt regulations necessary to carry out the HWFA.

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Here, I use the PSL-4Step framework to analyze the HWFA.

Step 1: Does it apply?

“Employer” includes state and local government units and “a person that acts directly or indirectly in the interest of another employer with an employee.”

“Employee” does not include an individual who

  • performs work under a contract of hire that is determined not to be covered employment under Labor and Employment, Section 8-205;
  • is not a covered employee under Labor and Employment, Section 9-222 (deals with real estate brokers and salespeople);
  • is under the age of 18 years before the beginning of the year;
  • is employed in the agriculture sector on an agricultural operation;
  • is employed by a temporary staffing agency which does not have day to day control over the work assignments and supervision of the individual while providing the temporary staffing services; or
  • is directly employed by an employment agency to provide part-time or temporary services to another person.

Also, the HWFA does not apply to an employee:

  • who regularly works less than 12 hours a week for an employer;
  • is in the construction industry but is not a janitor, a building cleaner, a building security officer, a concierge, a doorperson, a handyperson or a building superintendent and who is covered by a collective bargaining agreement in which the requirements of the HWFA law are expressly waived in clear and unambiguous terms;
  • who is “called to work by the employer on an as-needed basis in a health or human services industry, [who] can reject or accept the shift offered by the employee, is not guaranteed to be called on to work by the employer and is not employed by a temporary staffing agency.”

Also, the law does not affect any bona fide collective bargaining agreement entered into before June 1, 2017 for the duration of the contract term, excluding any extensions, options to extend, or renewals of the term of the original agreement.

Finally, if a unit of state or local government’s sick leave accrual and use requirements meet or exceed leave under the HWFA, employees of that unit who are part of the unit’s personnel system are subject to the unit’s laws, regulations, policies, and procedures providing for accrual and use of leave, grievances and disciplinary actions. Any employees in such unit not covered by the unit’s sick leave and accrual and use requirements are subject to the HWFA.

Step 2: The Benefit Continue reading

Supreme Court Asked to Review Decision Rejecting EEOC’s Inflexible Leave Policy

The Supreme Court’s term just got much more interesting for leave management lawyers. A petition for certiorari was filed last week in Severson v. Heartland Woodcraft, Inc., the Seventh Circuit decision rejecting the EEOC’s position that an “inflexible” or “maximum” leave policy violates the ADA because it does not allow for additional leave as a reasonable accommodation.  I had posted that the Supreme Court would eventually need to resolve the “inflexible leave” issue. Perhaps that time will be soon.

Heartland Woodcraft had provided the plaintiff with all of the leave he was entitled to under the FMLA and denied his request for an additional two to three months to recover from back surgery. The plaintiff claimed he was entitled to more leave as a reasonable accommodation under the ADA. The EEOC filed an amicus brief in support of the plaintiff.

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The Seventh Circuit held that the ADA does not govern medical leaves. “The ADA is an antidiscrimination statute, not a medical-leave entitlement….. Long-term medical leave is the domain of the FMLA,” the Court said.

Underlying the EEOC’s inflexible leave position is the oxymoronic anomaly that an individual who cannot come to work is nonetheless a qualified individual with a disability, defined as one who can perform the essential functions of the position either with or without an accommodation.

The Seventh Court rejected that argument.  “[A] n employees who needs long-term medical leave cannot work and thus is not a ‘qualified individual’ under the ADA,” the court said. (italics in original).  “[A] long-term leave of absence cannot be a reasonable accommodation…..'[N}ot working is not a means to perform the job’s essential functions,” the court added.

In a 2014 opinion authored by then-Tenth Circuit Judge, now Associate Justice of the Supreme Court Neil Gorsuch, the Tenth Circuit rejected the argument that the employer’s six-month maximum leave policy violated the ADA. Hwang v. Kansas State University, (10th Cir.  2014).

 

The Paid Sick Leave Patchwork Comes to Congress

A few months shy of five years ago, I predicted in a blog post the development of the paid sick leave patchwork . I wrote then:

If you look out toward the leave-and-attendance legislation horizon, and you might have to squint a bit but not much, you can see yet another patchwork beginning to take shape. This one is on paid sick days. Multi-state employers need to watch this carefully since it is certainly heading for full-fledged “patchwork” status which, when combined with the patchworks of family and medical laws, pregnancy leave laws and disability discrimination laws, makes one mega-leave-and-attendance-patchwork!

The now full-fledged PSL patchwork has arrived in the hallowed halls of Congress. Two days ago, a House Subcommittee on Health, Employment, Labor and Pensions held a hearing on workplace leave policies. In his opening statement, Subcommittee Chair Rep. Tim Walberg (R-MI) acknowledged the patchwork: Continue reading

Spokane’s Paid Sick Leave to Sunset January 1; Tacoma’s Merely Amended

Come January 1, 2018, delete Spokane, Washington from your list of paid sick leave jurisdictions.

The Washington State paid sick leave law that voters approved last year goes into effect on January 1, 2018.  After that vote,  Spokane amended its paid sick leave law, which has been in effect since January 1, 2017, to “sunset” upon the effective date of the state law, i.e., January 1, 2018.  My post about that Spokane amendment is here.

Tacoma, whose paid sick leave law has sunset in grand tetonsbeen in effect since February 1, 2016,  opted for a different approach. It amended its paid sick leave law to align it more closely with the state law but not completely. Tacoma finalized its rules and regulations for its amended law yesterday and published a side-by-side comparison of its original and amended paid sick leave ordinances with the state ordinance.

With Spokane deleted, Seattle, SeaTac and Tacoma are the three cities in Washington with paid sick leave laws.