Westchester County Enacts Sick Leave Law

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

Texas Supreme Court to Consider Austin Sick Leave Injunction

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 Adopt Paid Sick Leave Initiative

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.

Will Michigan Enact Paid Sick Leave This Week?

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.

Railroad Insurance Act Preempts Massachusetts Paid Sick Leave Law

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 recent decision by a Massachusetts federal district court.

In  2015, a railroad sued the Massachusetts Attorney General, arguing that the MESTL was preempted by three laws as it applied to interstate rail carriers: the RUIA, the Railway Labor Act and ERISA.  The parties agreed that the court would address the RUIA argument initially.  In 2016, the federal district court agreed that “RUIA preempt[s] all state laws, including the [Earned Sick Time Law] that relate to sickness benefits for railroad workers.” CSX Transportation, Inc. v. Healey (D. MA, July 13, 2016).


On appeal, the First Circuit held 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, 284 (1st Cir. 2017).

On remand, the district court concluded once again that “Congress intended RUIA to serve as the ‘exclusive’ source of all sickness benefits for railroad employees and to preclude the employees from claiming rights to sickness benefits under any state sickness law.”  The fact that MESTL allows time off for reasons other than the employee’s own sickness does not change the result, the court said. “In short, the breadth of the state law does not save it from RUIA preemption. Such a reading would allow a state to legislate creatively around the RUIA and thereby thwart the objective of Congress to create a uniform federal scheme of sickness benefits for railroad workers.”

Similar preemption challenges brought by an airline industry group to the Washington and Massachusetts PSL laws are pending.

More Paid Sick Leave Turbulence in Texas

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.

Equal Protection Challenge to Alabama Preemption Law Can Proceed, Court Says

The challenge to Alabama’s preemption law lives to fight another day, according to an Eleventh Circuit Court of Appeals decision last week. In 2016, the plaintiffs made various race-based challenges to the  Alabama Uniform Minimum Wage and Right-to-Work Act. That Act bars political subdivisions from requiring employers to provide employees with wages or “employment benefits,” including paid and unpaid leave, not required by federal or state law. The Alabama legislature enacted the law the day after the City of Birmingham’s passed an ordinance increasing the minimum wage within the city.  The state law voided that ordinance. The plaintiffs argued that the state law was unconstitutional and violated the Voting Rights Act. The defendants asked the court to dismiss the lawsuit.


Last year, a federal district court rejected all of the plaintiffs’ challenges and dismissed the case. The Eleventh Circuit last week affirmed the dismissal of all but one of the challenges. Concerning the plaintiffs “equal protection” constitutional claim, the Eleventh Circuit held that the plaintiffs have plausibly alleged both that the MWA “burdens black citizens more than white ones” and that  it was enacted with a discriminatory purpose. The court remanded the equal protection claim to the district court for further proceedings.

The case is Marnika Lewis et al v.  State of Alabama et al. Docket No.17-11009 (11th Cir. July 25, 2018).