A Font Fight in Albuquerque

The legal wrangling about presenting the proposed Healthy Workplace Ordinance to Albuquerque voters in October has been going on for about a year. One of the two lawsuits deals with the mechanics of presenting the proposal on the ballot. A judge had ruled that the entire seven page ordinance must be on the ballot and that a summary would not do. At the end of my post about that decision, I urged readers to watch for arguments concerning the ballot’s font size and margins.

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Last week, HWO proponents filed an emergency motion to stop the City from printing the HWO on the ballot in 7-point font.  They claim a ballot in 7-point is “illegible and [an] illegally-small font size.” They argue that the font size should be at least 8.5-point to comply with federal voluntary ballot guidelines which, they claim, New Mexico has incorporated into its law.

Proponents also renewed arguments that the ballot should contain a summary of the HWO and that a “legible, large-text copy” of the ordinance be provided in each voting booth.

 

Split Decision in Counties’ Challenge to Oregon Sick Leave Law

Three of the nine counties that sued to be relieved from complying with the Oregon Sick Leave law– Linn, Douglas and Yamhill – have prevailed in their challenge. The other six plaintiff-counties have dropped their challenge. 

A Linn County judge last December agreed with the plaintiff-counties that Oregon’s Sick Leave Law is an unfunded liability. Round One to the plaintiff-counties. My report on that decision is here.

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The Oregon Constitution states that if a local government must spend more than one hundredth of one percent of its budget on an unfunded new program or increased level of service, the local government “is not required to comply” with the law.  Round Two dealt with whether the counties met this spending threshold on the PSL law. A trial had been scheduled for mid-July to resolve that issue.

The case has been settled. The judge had ruled that Linn, Douglas and Yamhill had established the .01% threshold, according to a news report.  The other plaintiff-counties dropped their challenge. The State has reserved the right to appeal the judge’s decision that the Sick Leave Law is an unfunded liability.  

The Oregon Sick Leave Law requires employers with at least ten employees (six in Portland) to provide up to forty hours of paid sick leave annually. Smaller employers must provide unpaid sick leave. This litigation dealt only with the plaintiff-counties as employers. It did not involve private employers. 

 

 

 

 

The Last Cook County Earned Sick Leave Opt Out?

Could it be? Is it possible that we have reached the end? Have we seen the last opt out from the Cook County Earned Sick Leave Ordinance?  I have yearned for this moment ever since the onset of the opt out onslaught.

Earlier this week, the Village of Deer Park opted out of the [20% of] Cook County Earned Sick Leave Ordinance.  East Dundee opted out last week. My nix list has 108 entries.

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Where do we go from here? To litigation, I suspect. None has been filed yet but it seems ineluctable. It might come from the County itself. A County Commissioner said earlier this month that the County may challenge the authority of some political subdivisions to opt out.  It might come from an employer or cadre of business interests challenging the County’s authority to enact the Ordinance. Or it might come in an enforcement proceeding by the County. Issues of the County’s authority to enact the Ordinance and a political subdivision’s authority to opt out go to the heart of an employer’s liability for an alleged violation.

The Cook County PSL future is uncertain. But it is a pretty good bet that the [20% of] Cook County Earned Sick Leave Ordinance kerfuffle is far from over.

 

Oregon “Emergency” Law Tweaks PSL Law

Declaring an “emergency” necessary “for the immediate preservation of the public peace, health and safety,” Oregon tweaked its PSL law recently. Let’s review the amendments. For each, you decide whether it was necessary to immediately preserve the public peace, health and safety, or whether declaring an emergency was legislative hyperbole.

  • An employer in a city with a population exceeding 500,000 (i.e., Portland) does not include an employer that maintains only a seasonal farm stand or a temporary, construction site trailer used for office purposes only.
  • An employer may cap the annual accrual of sick time to 40 hours. The original law did not have an accrual cap.
  • The definition of “employee” does not include certain corporate directors, members of a limited liability company, or partners in a limited liability partnership or their immediate family members.
  • seal-39732_640An employer may adopt a policy that both caps an employee’s total accrual to 80 hours and caps annual usage at 40 hours. It was unclear in the original law whether an employer’s policy could have both caps.
  • An employee paid a base wage plus piece-rate or commission shall be paid for sick time at the base wage or the minimum wage, whichever is greater.  The original law did not address how to pay these employees.
  • If an employer has a paid time off program that is “substantially equivalent to or more generous to the employee” than the requirements of the PSL law, the employer must comply with the law’s requirements “for the first 40 hours that the employer’s policy provides per year” and not beyond that.  In my view, this is the most significant of the tweaks and gives employers much-needed guidance on integrating PSL with a PTO program..

Oregon’s Sick Time Law has been in effect since January 1, 2016. The amendments dealing with hours worked and sick time accrued or used apply January 1, 2018. The remaining amendments went into effect on July 1, 2017.

 

Minnesota Paid Sick Leave Redux

It began with the Fracas in Minneapolis, here, and evolved to the Minnesota Melee, here.  Let’s revisit the state of PSL in the North Star State.

  • Minneapolis and St. Paul each passed a Sick and Safe Time Ordinance about a year ago, each to be effective on July 1, 2017.
  • A cadre of business interests sued to enjoin the Minneapolis law.
  • In January 2017, 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 of those boundaries.
  • Each side appealed, We are awaiting a decision from the Minnesota Court of Appeals, which heard oral arguments on the appeal on July 11.
  • Minneapolis and St. Paul have implemented their ordinances, effective July 1, with regard to employers within the city limits.
  • 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.
  •  Minnesota Governor Mark Dayton vetoed the bill passed by the Minnesota legislature which would have preempted municipalities from enacting a sick leave law, among other employment regulations.  It would also have negated the Minneapolis and St. Paul Sick and Safe Time ordinances.minnesota-31510_1280

In sum, the state of PSL in the North Star State is:

  • Minnesota is not a preemption state.
  • Minneapolis and St. Paul PSL ordinances are partially in effect, but a judicial cloud hangs over them.
  • The judicial outcome likely dictates Duluth’s PSL future.

 

Oregon Scheduling Law May Increase Cost of Providing Paid Sick Leave

Oregon will likely became the first state to pass a predictable scheduling law. The bill has been sent to Governor Kate Brown, who is expected to sign it. The law would be effective July 1, 2018.

Predictable leave laws add to an employer’s challenge to deal with leave under paid sick leave laws. Let’s assume an employee gives the employer three days’ notice of the need to use a PSL day. The employer could either have another employee work the hours of the employee using PSL or, if appropriate, use a temporary employee. If the employer does neither, the co-workers of the absent employee will simply need to work faster or harder.

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Under the Oregon scheduling law, if an employer requires an employee to work additional hours with less than seven days’ notice (14 days effective July 1, 2020), the employer must pay the employee one hour of compensation as a penalty, sometimes called “predictability pay.” The law purports to have an exception to address an “unexpected employee absence” but the exception seems inadequate.

The exception begins with the employer’s “voluntary standby list” (VSL), which an employer may, but need not, maintain. Employees wishing to work additional hours may sign the list. If an employer needs to fill additional hours due to an unexpected employee absence, the employee must first offer the additional hours to those on the VSL but cannot require them to work the additional hours.  An employee’s signing the VSL seems to be merely an indication that if asked to work additional hours, the employee might be interested.  If someone from the VSL works the additional hours, no predictability pay is due.

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From a Red Asterisk to [The 20%] of Cook County Earned Sick Leave Ordinance

The crumbling of the Cook County Earned Sick Leave Ordinance into merely one-fifth of its original reach started with an asterisk. On November 23, 2016, I titled my post: “Cook County Paid Sick Leave Gets Barrington Asterisk.” A few weeks later, Rosemont opted out, so I gave it an asterisk, this time including an image of a red asterisk. A week or two later, Oak Forest opted out, so I added three asterisks to the post. Sensing a potential swarm of asterisks, I abandoned that approach and thank goodness I did. Had I continued, this is how many red asterisks I would be including in my posts about Cook County opt outs.

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My nix list now has 106 entries, more than 80% of the County’s political subdivisions. The latest additions are Calumet City, Forest View, Harvey, Hazel Crest, Markham, Sauk Village, Stone Park and Westchester. The list of municipalities on my watch list is down to five.

I suspect we will soon transition from watching the opt-outs to watching the litigation concerning the opt-outs. A Cook County Commissioner has said that the County is planning to file a lawsuit challenging the ability of some or all of the municipalities to opt out.