The Michigan Supreme Court will wade into the clash involving the constitutionality of the state’s Paid Medical Leave Act, at least to decide whether to consider the substance of that clash. In response to requests by both legislative chambers for an advisory opinion on the legality of the recently enacted state PSL law, the court scheduled a hearing on July 17, 2019. The first of three questions listed in the Court’s Order is whether it should exercise its discretion and issue the requested advisory opinion.In Michigan, a legislative chamber or the governor may ask the Supreme Court to issue an advisory opinion on “important questions of law upon solemn occasions as to the constitutionality of legislation….”
The other two questions for which the Court solicited briefs concern the process-used to enact the PSL. PSL proponents had collected enough signatures to have voters decide in November 2018 whether to enact a PSL initiative. The Michigan Constitution gives the legislature the option to enact such an initiative, negating the need for a vote on it. Both legislative chambers, both with GOP majorities, had concerns about the substance of the PSL bill. They decided to enact the voter initiative and then amend it. This strategy was adopted because amending a statute enacted by the legislature requires a majority vote in each legislative chamber while amending a statute enacted by a voter initiative requires a three-fourths vote of each chamber. The urgency to implement this strategy increased in November when voters elected a Democratic governor who would take office in January and would likely veto the effort to amend the PSL law.
Last Fall, the legislature enacted the initiative and a few months later amended it. In December, lame duck GOP Governor Rick Snyder signed the amended bill.
The Supreme Court has asked the parties to brief whether the legislature may “enact an initiative petition into law and then amend that law during the same legislative session” and whether the PSL and minimum wage laws were enacted in accordance with the constitutional provision concerning voter initiatives.
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.
Westchester County (NY) last night enacted an Earned Sick Leave law, becoming the third county nationwide to do so. Montgomery County, Maryland and Cook County, Illinois also have enacted PSL laws. The Westchester County law is effective in 180 days. .
The law 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. Unused time may be carried over to the following year, although the employer can cap the maximum amount of sick leave taken in any given year at 40 hours.
The law will be enforced by the Department of Weights and Measures-Consumer Protection. An aggrieved employee has the option to pursue a private right of action in court against the employer. Damages available include up to three times the amount of sick time taken but not paid, $500 for sick time denied and not taken, and other relief including actual damages, attorneys’ fees, the costs of the administrative hearing, and other appropriate monetary and equitable relief. Continue reading →
The paid sick leave “turbulence in Texas” is soon to be on the Texas Supreme Court docket. The City of Austin is appealing the order enjoining the implementation of its Earned Sick Time Ordinance to the Supreme Court, according to a news report. The Ordinance was passed in February and had been scheduled to be effective on October 1.
In April, a cadre of business interests sued to enjoin the implementation of the ordinance, claiming it violates the state constitution and is preempted by the Texas Minimum Wage Law, which requires employers to pay the federal minimum wage under the Fair Labor Standards Act 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.
In June, a state district court judge, detecting in the case “the aroma of a good political blood fight,” denied the plaintiffs’ request to enjoin implementation of the Ordinance pending the outcome of the legal challenge to it. But last month, the a Texas Court of Appeals reversed that decision and enjoined the implementation of the Ordinance to maintain the status quo while the legal challenge proceeded. That is the issue the city is appealing.
The Ordinance requires private sector employers with more than 15 employees to provide employees who work at least 80 hours within the city in a calendar year to accrue PSL at the rate of one hour for every 30 hours worked, up to 64 hours annually. The yearly accrual cap for employers with up to 15 employees is 48 hours annually.
Michigan lawmakers yesterday adopted the paid sick leave initiative that otherwise would have been presented to voters in November. The GOP-controlled Senate and House adopted the initiative by wide margins. One report indicated that the paid sick leave law would be effective in March 2019. The ballot initiative which the legislature adopted is here.
Michigan is the eleventh state to require employers to allow employees to accrue paid sick time. For a list of the other ten, see here.
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.
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.