A Week of Paid Sick Leave Vetoes

Maryland, Minnesota and now Nevada. Three paid sick leave-related vetoes within seven days.

On May 25, 2017, Maryland Governor Larry Hogan vetoed the PSL bill passed by the state General Assembly. Five days later, Minnesota Governor Mark Dayton vetoed the bill passed by the Minnesota legislature which would preempt municipalities from enacting a sick leave law, among other employment regulations. Then, on June 1, Nevada Governor Brian Sandoval vetoed the PSL bill passed by the legislatures.dislike-157252

My posts about the Maryland and Minnesota vetoes are here and here.

Governor Sandoval’s veto means that the wait for PSL State Number Eight continues. I had speculated previously that the stars seemed aligned for a PSL law in Rhode Island given that the governor is a Democrat, Democrats have overwhelming majorities in both the House and the Senate, and neighboring Connecticut and Massachusetts already have PSL laws.   However, the Rhode Island House bill remains in committee.

It has been seven months since any paid sick leave bill has passed anywhere in the country, although five PSL laws become effective July 1, 2017 (Arizona, Cook County, Chicago, Minneapolis and St. Paul).

Maryland Governor’s Paid Sick Leave Veto Calls Legislature’s Hand

As he had promised, Maryland Governor Larry Hogan vetoed what he referred to as the “deeply flawed, job-killing” paid sick leave bill passed by the General Assembly.

To override the Governor’s veto, 60% of each chamber must vote to do so. While each chamber had passed the bill with enough votes to override a veto, a change of heart by just one senator could doom the override effort. In the Senate, 29 votes are needed to override and 29 voted for the bill. In the House, 87 members voted for the bill; 85 are needed to override a veto.

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An override vote cannot occur until the legislature convenes in January 2018.  That leaves many months for the executive and legislature to try to work out a compromise. The Governor prefers his “Commonsense Paid Leave Law” which, according to the statement from the Governor’s office, would “provide benefits that hardworking Marylanders deserve without hurting the state’s economy and costing jobs.” As I explained in my earlier post, the Governor’s bill goes where no leave law has gone before because it allows employees to accrue leave and use that leave for any reason. It would apply to employers with at least fifty employees while the Assembly bill applies to employers with at least fifteen employees.

When state legislative sessions convened earlier this year, I had speculated that Maryland could very well become State Number Eight to enact a paid sick leave bill. Alas, it was not to be.

Paid Sick Leave Showdown in Maryland

With the Maryland General Assembly adjourning in just five days, in the bottom of the ninth, so to speak, the Senate and House reconciled their PSL bills yesterday.

Next stop for the “enrolled” bill is Governor Hogan, who has already announced that the bill is “dead on arrival,” DOA.  I envision him standing in his office, receiving the bill in hand, a paper shredder to his side, eagerly looking to transform the bill into confetti. The Governor prefers his Commonsense Paid Leave Act, the one that goes where no PSL law has gone before. See here. The Governor’s bill seems to have been DOA in the General Assembly.trash-97586_1280

 Sixty percent of the votes in each chamber of the General Assembly are needed to overrule the Governor’s veto. If all of those who voted for the reconciled bill also vote to override the Governor’s veto, that formerly DOA PSL bill will rise from the dead and Maryland will become State Number Eight.

PSL just doesn’t get any more exciting than this, does it?

MD PSL DOA

Maryland Governor Larry Hogan announced earlier this week that if a PSL bill moving through the legislature were approved and sent to him for signature, it was “dead on arrival,” DOA. Prior to his pronouncement, the House of Delegates had passed a PSL bill by an 88-51 margin. Since his pronouncement, just yesterday, the Senate passed a PSL bill by a 29-18 margin.  The bills have some differences and need to be reconciled.

The Governor prefers his Commonsense Paid state-house-annapolis-mdLeave Act, the one that goes where no PSL law has gone before. See here.

Assuming the House and Senate bills are reconciled, the issue is whether both chambers have the sixty percent of votes to override the Governor’s veto.  That’s 85 votes in the House and 29 in the Senate.  If those who voted for the original bill vote to override the Governor’s veto, that DOA PSL bill may rise from the dead.

As for the argument that common sense should prevail, recall the observation of French philosopher Rene Descartes: “Nothing is more fairly distributed than common sense: no one thinks he needs more of it than he already has.”

Stay tuned.

Maryland Governor’s “Common Sense” Leave Bill Goes Where No Leave Bill Has Gone Before

Of all the legislative debates concerning paid sick leave this legislative term, the debate in Maryland seems to have the most fury. Republican Governor Larry Hogan, likely sensing that the legislature, with large Democratic majorities in each chamber, might very well enact a PSL law this session, has offered his own proposal, The Common Sense Paid Leave Act. Who can possibly oppose a law based on common sense? Let’s take a closer look.

In the forty or so paid sick leave laws, ordinances and regulations that have been enacted nationwide, each itemizes the reasons for which an employee may use accrued leave.  Governor Hogan’s “common sense” bill dispenses with substantive limitation.  Employees may use accrued time “for any reason,” any at all. Its title does not include any connection to “sick.”  This absence is a bit surprising since a December 7, 2016 press release from the Governor’s office refers to the need to develop a “common sense approach to paid sick leave.” Indeed, the press release is titled: “Governor Larry Hogan Announces Common Sense Paid Sick Leave Legislation.”

Other PSL laws include a definition of “family member” because employees can use accrued time for reasons related to the health condition of a family member. The Governor’s bill does not define “family member” since the definition would be superfluous.  Also, other PSL laws require an employee to give the employer notice of the need to use accrued time. These requirements typically require advance notice for foreseeable use and notice “as soon as practicable” for unforeseeable use.  The Governor’s bill has no notice requirements.  An employee can merely report that he or she will not be in today because he or she decided to go to the O’s ballgame or because it is a beautiful day at the beach. The bill allows the Commissioner of mar-90737_1280Labor and Industry to adopt regulations and one would hope that this “common sense”notice requirement would be included in regulations.

I suspect, and this is pure speculation, otherwise known as a “fact-free” discussion, that the Governor eliminated all restrictions on use to gain support for his limiting the application of the bill to employers with at least 50 employees.  That may be good politics but referring to a bill that allows an employee to take accrued paid time off for any reason whatsoever as a “common sense” approach seems a bit much. Perhaps it should have been titled the “Star Trek Paid Leave Act” because it certainly goes where no paid leave bill has gone before.

 

Let the 2017 State Paid Sick Leave Wrangling Begin!

With a new calendar year comes a new legislative session, which brings new political wrangling about paid sick leave. Three states are in the PSL headlines: Maryland, Rhode Island and Alaska.

The Maryland Healthy Working Families Act, House Bill 1, was introduced on January 11, 2017. The bill’s introduction seems to be a rejection of the compromise bill Governor Larry Hogan intends to introduce, or perhaps it is merely an opening gambit. HB1 provides broader rights to employees than the governor’s proposal. It would require employers with at least 15 employees to allow employees to accrue up to 56 hours of paid time per year for sick and safe leave. The governor’s proposal would require employers with 50 or more employees to allow employees to accrue up to 40 hours of paid time annually.

In Rhode Island, more than 20 House Democrats have publicly declared their support for the “Fair Shot Agenda,” a four-part legislative package which includes paid sick days and an increase in the minimum wage, according to reports. The paid sick leave bill has not yet been introduced.wrestling-clipart-shirtail-2

Alaska will consider a paid sick leave bill for the third time. House Bill No. 30 was filed on January 9, 2017. Beginning October 1, 2017, it would require employers with at least 15 employees to allow employees to accrue one hour of paid sick leave for every 40 hours worked.

Which of these states is likely to be the eighth PSL state? As I noted in Blue States, Red States and Paid Sick Leave Laws, six of the seven current PSL states were blue in the November election. Three—CA, MA, VT—were deep blue, giving Secretary Hillary Clinton more than 60% of the vote.

Last November, Maryland was deep blue (60% for Secretary Clinton); Rhode Island was blue (55% for Secretary Clinton); Alaska was red (51% for President-elect Donald Trump). Political prognostication is always risky, often wrong, as we learned in 2016, and beyond the scope of this blog. But let’s do an over/under anyway. Continue reading

Maryland To Consider PSL Law Yet Again; Preemption Battle Looms

Maryland Governor Larry Hogan has announced that he will propose a PSL law in the legislative session which begins in January. If enacted, Maryland’s will be the eighth state PSL law, joining Arizona, California, Connecticut, Massachusetts, Oregon, Vermont and Washington.

Describing it as “common sense” and balanced,” the Governor’s proposal appears to be an effort at compromise. It would require Maryland businesses with 50 or more employees to provide employees up to 40 hours of PSL annually. Tax incentives will encourage smaller employers to provide PSL, according to the Governor’s plan.  The press release from the Governor’s office is here.state-house-annapolis-md

Maryland has considered PSL bills for at least three years. Earlier this year, the Maryland House of Delegates approved a PSL bill that would require employers with 15 or more employees to provide up to 56 hours of PSL annually. That bill did not pass the Maryland Senate.

Maryland’s Montgomery County enacted a PSL law in 2015, which went into effect on October 1, 2016. That law requires all county employers to provide PSL. Those with at least five employees can cap PSL accrual at 56 hours per 12 month period; smaller employers can cap paid sick time at 32 hours and also provide 24 additional unpaid hours.

Whether a Maryland PSL law would preempt s Montgomery County’s law is likely to be the topic of vigorous debate. The Montgomery County Council has already expressed its view that the state law should not preempt the county law, according to one report.

A few states with PSL laws have addressed preemption of local PSL laws inconsistently. Oregon’s law specifically preempts other local PSL law and negated two local PSL ordinances. The Arizona and Washington laws, the two most recent state PSL laws, take the opposite approach. They both allow other governmental entities to enact more generous PSL ordinances.