Split Decision Again in Effort to Enjoin Minneapolis Paid Sick and Safe Time Law

The Minneapolis Sick and Safe Time Ordinance applies to businesses within the City’s geographic boundaries but not to businesses outside the City limits, the Minnesota Court of Appeals ruled yesterday. The court’s decision affirms a January 2017 decision by a Hennepin County District Court judge. My post about the lower court’s decision is here.

The appellate court rejected both the appellants’ argument that the Ordinance should be enjoined and invalidated completely, and the City’s argument that it should not be enjoined at all, and should be applied to employers both within and outside of the City’s geographic boundaries.

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The Ordinance seeks to reach employers without a physical presence in Minneapolis by defining “employees” as those “who perform work within the geographic boundaries of the city for at least eighty (80) hours in a year.” A practical challenge is that employers do not track the time an employee crosses the border into or leaving a municipality. The appellants made this point, ,according to the court, with affidavits stating that “recording the whereabouts of employees relative to municipal boundaries is not a standard part of existing time-tracking systems.” PSL kudos for that creative approach to make that point.

I suspect this decision is also of keen interest to the cities of St. Paul and Duluth.  St. Paul’s Sick and Safe Time Ordinance was effective July 1, 2017. The Duluth Safe and Sick Time Task Force continues apace on its mission to make a recommendation to the Duluth City Council later this year.

EEOC Sues Blood Bank Over Inflexible Leave Policy

The Blood Bank of Hawaii violated the ADA by giving employees only the leave they were entitled to under the FMLA, the EEOC has claimed in a lawsuit filed last week, according to the Agency’s press release.  This is yet another case in which the EEOC has sued an employer over an inflexible, or “rigid,” maximum leave policy.  The EEOC’s view is that an employer has an obligation under the ADA to consider granting leave beyond the FMLA as an accommodation to an employee’s disability.  The EEOC also claims in the lawsuit that the Blood Bank required employees to return to work without any limitations, according to the press release.

I posted recently about UPS paying $2 million to settle a lawsuit brought by the EEOC with similar allegations.

The EEOC’s lawsuit raises fascinating legal issues, at least to those following the legal developments concerning maximum leave policies. One is the relationship between the ADA and FMLA. Congress passed the FMLA in February 1993. It requires employers with at least 50 employees to provide a maximum of 12 weeks of leave for an employee’s serious health condition.  Title I of the ADA went into effect six months before the FMLA was passed. It applies to employers with at least 15 employees. The EEOC’s view is that the maximum leave required by the FMLA is merely the starting point for determining whether an employer has fulfilled its obligation to provide leave under the ADA.

One has to wonder why Congress debated the number of employees an employer must have to be covered by the FMLA, and the maximum number of weeks of leave an employer must provide if the ADA had already required employers with as few as 15 employees to provide an uncapped amount of leave, limited only by the “undue hardship” defense.

As I mentioned in my earlier post, eventually this issue with be on the docket of the Supreme Court of the United States.

Portland, ME and Austin, TX to Consider Paid Sick Leave Bills

Just when I thought, and posted, that Rhode Island and Albuquerque were the only two jurisdictions that might enact a paid sick leave law in 2017, now come Portland, Maine and Austin, Texas to the table.

Labor Day was the kickoff for paid sick leave campaigns in both cities. In Portland, the mayor will present his proposal to the City Council on September 18, according to a news report. The draft ordinance follows the classic structure—an hour accrued for every 30 hours worked, up to six paid days per year.  The packet of information about the bill from the mayor’s office, which includes the proposed ordinance, is here. Earlier this year, the Maine legislature considered and rejected a bill that would have required employers statewide to allow employees to accrue paid sick leave.

In Austin, a City Council member announced that he intends to introduce a paid sick leave bill by the end of the month, according to a news report. The Council member is working on a draft of the ordinance, according to that report.

As I had posted recently, no paid sick leave law have been enacted in 2017. With less than four months left in the year, and four jurisdictions considering PSL bills within those four months, we may yet see at least one 2017 contribution to the PSL patchwork.

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For those who have noticed the relationship between a jurisdiction’s “blue” political leanings and its consideration of a paid sick leave bill, Portland and Austin support that connection. Both Maine and Texas voted for President Trump in the November 2016 election. However, Portland was deep, deep blue, with 76% of its voters voting for Secretary Hillary Clinton.  Austin is the county seat of Travis County. That county was deep blue, with Secretary Clinton receiving more than 66% of the vote.

Arizona’s Preemption Law Unconstitutional, Court Rules

Arizona’s 2016 law prohibiting its political subdivisions from regulating employee benefits and “non-wage compensation,” is unconstitutional because it contradicts a 1998 law passed by voters which limits the legislature’s ability to modify voter-approved initiatives, according to a decision last week by Maricopa County Superior Court Judge Joshua D. Rogers.

The 1998 law, the Voter Protection Act, prohibits the legislature from amending or superseding a voter-approved initiative unless the proposed law “furthers the purposes” of the initiative and is approved by three-fourths of both the House and the Senate.

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In 2006, Arizona voters approved Proposition 2002, which states in part, “a county, city or town may by ordinance regulate minimum wages and benefits within its geographic boundaries” but may not reduce the minimum wage below that required by state or federal law.

Ten years later, the state passed its preemption law, which states in part: ‘The regulation of employee benefits, including nonwage compensation, paid and unpaid leave and other absences, meal breaks and rest periods, is of statewide concern. The regulation of non-wage employee benefits pursuant to this chapter and federal law is not subject to further regulation by a city, town or other political subdivision of this state.” This bill did not garner a three-quarters margin in either legislative chamber.

The court rejected the State’s claim that Proposition 202’s allowing a political subdivision to regulate wages and benefits did not contradict the preemption law’s prohibiting a political subdivision from regulating wages and benefits. The court said that these “two statutes cannot be harmonized because [the preemption statute] expressly prohibits that what [Proposition 202] expressly permits.”

Arizona voters enacted the Fair Wages and Healthy Families Act last November. It went into effect on July 1, 2017. Last week’s decision creates the possibility that an Arizona city or town or other political subdivision could enact a more generous paid sick leave law.

The State must decide whether to appeal the decision.

 

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.

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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.

Dads Shortchanged on Bonding Leave, EEOC Claims

Providing more paid child-bonding leave to new moms than to new dads is gender discrimination in violaion of Title VII, claims the EEOC in a lawsuit filed this week against Estee Lauder Companies, Inc.

According to the EEOC’s press release, the employer provided paid leave to new mothers to recover from childbirth and, in addition, gave them six more weeks of paid leave for child bonding. The employer gave new dads two weeks of paid leave for bonding, according to the release. The lawsuit also alleges that the employer gave mothers return-to-work flexibility options that it did not offer to new dads.stork-with-baby-silhouette

In its 2015 Enforcement Guidance on Pregnancy Discrimination and Related Issues, the EEOC stated that while leave related to the physical limitations caused by pregnancy or childbirth can be limited to women, parental leave, or bonding time, must be provided to men and women equally.

The case arose when a new dad’s request for six weeks of parental leave following his child’s birth was denied, according to the EEOC’s release.  The case is pending in the federal district court for the Eastern District of Pennsylvania.

Some employers have dealt with the need to avoid discrimination in a child-bonding leave policy by offering that leave to the child’s primary caregiver only, whether it be the mom or the dad. Earlier this year, a JP Morgan employee filed a legal claim challenging that bank’s “primary caregiver” approach, according to a report.

New Mexico Supreme Court to Hear Healthy Workforce Ordinance Dispute 

The New Mexico Supreme Court will decide the constitutionality of the Albuquerque Healthy Workforce Ordinance. The Court will hear an appeal from District Court Judge C. Shannon Bacon’s August 11 decision dismissing all of the constitutional challenges to the HWO brought by a cadre of business interests.   My post about that decision is here.

 The plaintiff-business interests had claimed that the HWO violated the state constitution because it violated the “single subject” rule, i.e., was impermissible logrolling; exceeded a home rule municipality’s authority and the territorial reach of the City; and because ordinances may not be enacted by voter initiative.

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On August 14, the business interests filed with the New Mexico Supreme Court an “Emergency Verified Petition” seeking a review of Judge Bacon’s decision.  (Case No S-1-SC-36609).

On August 24, the Intervenors, representing employees without earned sick leave and HWO proponents, filed an opposition to the Petition, arguing that Judge Bacon’s ruling was correct.  In its opposition, Intervenors note that while the HWO is currently scheduled to be on the ballot at the next regular municipal election, which is on October 3, 2017, absentee voting in that election, and on the HWO, has already begun because, on August 19, the City “emailed the ballot to overseas voters pursuant to the Uniformed and Overseas Citizens Absentee Voting Act.”

While there is no timetable within which the New Mexico Supreme Court must issue a decision in the case, given the impending vote, I suspect the case will move swiftly at the Court.