Austin Earned Sick Time Ordinance Unenforceable, Suit Says

No need for a new Texas law to preempt the Austin Earned Sick Time Ordinance because it is already preempted and unconstitutional, according to a lawsuit filed Tuesday by a cadre of business interests.  The lawsuit launches three broad challenges to the Austin ordinance and seeks to enjoin it from ever going into effect. It alleges that the ordinance:

  • is preempted by the Texas Minimum Wage Law which requires employers to pay the federal minimum wage under the FLSA and the FLSA 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 because the “articulated governmental interests are factually unsupported,” “…its mandates “have no rational connection to furthering those interests” and even if they did, the mandates are “so burdensome as to be oppressive in light of the alleged governmental interest”; 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.

The lawsuit alsaustin-247_1920o alleges that the section of the Austin ordinance that allows for administrative subpoenas is an unconstitutional search and seizure because it does not provide for “judicial review before being required to comply” with the subpoena.

On May 29, 2018, a hearing will be held on the plaintiff’s request for a temporary injunction, according to the suit.




Duluth Paid Sick Time Law Advances

The Duluth, Minnesota City Council Monday night approved a handful of amendments to the proposed Earned Sick and Safe Time Ordinance. The amended bill will get a second reading at the Council’s May 14 meeting.


Monday night’s amendments to the proposed ordinance include:

  • changing the accrual rate to one hour for each 40 hours worked (from one for each 30 hours worked);
  • allowing an employer to frontload the 40 hours to avoid accruing time throughout the year;
  • expanding the definition of “family member” to include someone is not a family member but “is the equivalent of a family relationship”;
  • acknowledging an employer’s right to discipline an employee when an employee’s use of time under the ordinance “is not in good faith, such as a clear instance of abuse,” except that an employer may not, as discipline, “deduct from an employee’s legitimate earned sick and safe time.”
  • replacing the blanket exclusion from the ordinance of all employees covered by a collective bargaining agreement with a narrower exclusion applicable to the construction industry only;
  • adding a requirement to “develop and implement a culturally specific outreach and community engagement program to educate employees and employers about their rights and obligations” under the law.

The Duluth sick and safe time effort has been in the works for a few months short of two years. In July 2016, the City Council passed a “Resolution Establishing Earned Sick and Safe Time Task Force.”  That task force submitted its recommendation to the City Council last fall.




Paid Sick Leave Law Led to Base Closure, Says Suit

An airline “closed a flight attendant base because compliance with a local jurisdiction’s paid sick leave law led to a rapid increase in the number of sick calls” which disrupted its operations, according to a lawsuit filed by an airline group challenging the constitutionality of the Massachusetts PSL law as applied to some of its employees. The complaint does not identify the base that was closed or PSL jurisdiction involved.

The plaintiff,  a trade association representing federally-regulated airline carriers, contends that the Massachusetts PSL law violates the Dormant Commerce Clause and Fourteenth Amendment of the U.S. Constitution and is preempted by the Airline Deregulation Act. The plaintiff had made similar legal claims in a lawsuit it filed two months ago challenging the Washington PSL law. See my post about that lawsuit here.


While the Washington case argues that the state PSL law should not apply to flight crews (pilots and flight attendants), the Massachusetts case adds that the state law should not apply as well to its ground crew personnel, which it defines as “including (but not limited to) mechanics, fleet service workers, customer service agents, flight dispatchers, baggage handlers and catering employees.”

The introduction to the Massachusetts complaint quotes a circuit court’s observation that “it would be difficult to visualize a more comprehensive scheme of combined regulation, subsidization, and operation participation than that which Congress has provided in the field of aviation.”  Similarly, it would be difficult to visualize a more disorganized scheme of combined law and regulation than the patchwork of uncoordinated and often conflicting paid sick leave laws.

The complaint’s allegation about the base closing raises a question to ponder: May an employer close a workplace because its employees exercise rights under the PSL law too often?

Lopping Off Nearly a Third of the Paid Sick Leave Patchwork

Waiting for New Jersey Governor Phil Murphy to sign the PSL bill passed by both legislative chambers reminds me of waiting for Beckett’s Godot, where Estragon and Vladimir lament daily that Godot did not come today, he might come tomorrow. pen-1020006_1920

The New Jersey legislature sent the governor the PSL bill last week. When that signing occurs, with the stroke of a PSL pen,  Governor Murphy will lop off almost a third of the paid sick leave patchwork because the bill will preempt the 13 municipal PSL bills within the state when it goes into effect 180 days after the governor signs it. (See my post about that provision here.)

Despite the lopping, PSL proponents should be pleased because the scope of PSL coverage will expand to the entire state.  Because of the lopping, PSL patchwork opponents should be pleased because there will be a dozen fewer PSL laws.

Post-lop, about 30 jurisdictions will have PSL laws; 10 states, the District of Columbia, 2 counties and about 17 municipalities.

If the wait for the New Jersey governor’s signature is too long, Hawaii might sneak in as PSL state number ten.  A conference committee there will be hammering out the differences between the House and Senate passed PSL bills.

A Paid Sick Leave Drive in Dallas

Paid sick leave proponents in Dallas, TX have filed paperwork enabling them to collect signatures to try to put a paid sick leave initiative on the ballot in November, according to a report. Proponents now have 60 days, until June 11, 2018, to collect nearly 65,000 signatures, which is 10% of city voters, according to that report.

Austin planted the PSL flag in the South by passing its ordinance in February. That ordinance is effective on October 1, 2018.  My post about that ordinance is here. The proposed Dallas PSL ordinance is identical to that of Austin, according to that news report. An initiative to put PSL on the ballot in San Antonio is also underway.


As we have seen, a state’s status as a blue state increases the chances that a PSL will pass while those chances are decreased in a red state. The Dallas situation is very similar to that of Austin and requires a bit of nuance.

In the 2016 presidential election, Texas was a red state: 53% of Texans voted for President Donald Trump while 43% voted for Secretary Hillary Clinton. However, Dallas County was deep blue, with more than 61% of votes cast for Secretary Clinton.  Given that deep blue status, one would expect to see strong support for a PSL ballot initiative. For that reason, it is worth keeping an eye on Dallas PSL developments.

The next obvious question is whether Texas will enact a preemption bill to ban political subdivisions from enacting  PSL laws. One state legislator has said that he would introduce such a bill in response to the Austin ordinance.

Stay tuned.


Substitute Paid Sick Leave Bill Advances in New Jersey Senate

A substitute Senate paid sick leave bill yesterday was reported from the Senate Budget & Appropriations Committee and will move forward in the legislative process (S2171).  The Assembly had approved a substitute PSL bill last week. (A1827).  If New Jersey enacts a PSL law, it will be the tenth state in the nation to have done so.


Since thirteen New Jersey municipalities have already enacted PSL ordinances, a significant issue is whether the state law would be in addition to those ordinances or would preempt them.  Both the Senate and Assembly bills have an identical provision that prohibits political subdivisions from adopting a PSL ordinance after the effective date of the state-wide law. That provision also appears to preempt the thirteen municipal PSL ordinances although, in my opinion, that language could have been drafted a bit more clearly. That provision states:

The governing body of a county or municipality shall not, after the effective date of this act, adopt any ordinance, resolution, law, rule, or regulation regarding earned sick leave. The provisions of this act shall preempt any ordinance, resolution, law, rule, or regulation regarding earned sick leave adopted by the governing body of a county or municipality.

The stars seem aligned for New Jersey to enact a PSL bill. Democrats have a 25-15 majority in the Senate. Democratic Governor Phil Murphy has said he supports PSL statewide.