New Jersey Adds Paid Sick Leave, Cancels Thirteen Municipal PSL Ordinances 

With the stroke of his paid sick leave pen, New Jersey Governor Phil Murphy yesterday made the Garden State the tenth in the nation to enact a PSL law and also canceled—preempted is the legal term—13 municipal PSL laws within the state. The new state law takes effect in six months, at which time the 13 municipal laws will meet their collective demise.
number-38420_1280

Due to that collective demise, the number of PSL laws nationwide will decline by about a third. This is only the second time in PSL history that the number of PSL laws has declined. The first occurred in 2011 when Wisconsin’s preemption law negated Milwaukee’s PSL ordinance.

With the addition of the New Jersey PSL law, the vast and complex PSL patchwork will consist of laws in 10 states, the District of Columbia, 2 counties, and 18 municipal laws.

Race-based Challenge to Alabama Preemption Law Rejected

A federal court judge in Alabama last week rejected a variety of race-based challenges to the Alabama Uniform Minimum Wage and Right-to-Work Act, also known as House Bill 174 and Act 2016-18.  That law prohibited any political subdivision from requiring any employer to provide employees with any employment benefit or compensation not required by federal or state law and voided any existing requirements.  These types of laws are often referred to as preemption laws. Act 2016-18 was enacted in response to the City of Birmingham’s adoption of an ordinance to increase the city’s minimum wage.  Act 2016-18 voided that ordinance.

In prior posts, I have referred to this case as one related to paid sick leave laws because although the litigation focuses on the Birmingham minimum wage issue, Act 2016-18 prohibits political subdivisions from requiring employers to provide any employment benefit, which includes paid and unpaid leave which would seem to include paid sick leave.

Noting in his decision that “[p] laintiffs have painted this dispute as yet another chapter in Alabama’s civil rights journey,” District Court Judge David Proctor stated that their principal challenge to the law was that it transferred control over private sector employment from “municipal officials elected by a majority-black electorate to legislators elected by a statewide majority-white electorate.”  The plaintiffs also alleged that Act 2016-18 was enacted “with the intent of discriminating against the people who live and work in the City of Birmingham on the basis of race” in violation of the federal Voting Rights Act and numerous Constitutional amendments, including the Thirteenth Amendment, which outlaws slavery, and in violation of the “political process doctrine,” which bars states from altering “the procedures of government to target racial minorities.” The judge granted the defendants’ motion to dismiss in its entirety. Some claims were dismissed based on procedural issues such as sovereign immunity and standing while others were dismissed based on substantive law.

The case is Marnika Lewis v. Robert J. Bentley et al. USDC, Northern District of Alabama. Case No. 2:16-CV-690-RDP. Based on this decision, Alabama remains on my list of PSL preemption states.

Ohio Becomes Paid Sick Leave Preemption State

Ohio Governor John Kasich has signed Senate Bill 331, making Ohio the fifteenth PSL preemption state.The press release from the governor’s office concerning the signing of numerous bills, including SB 331, is here.

In my earlier post on SB 331, I surmised that the 57-page bill had so many diverse topics within it that it appeared to have been crafted by master legislative sausage-makers. Buried in the middle of SB 331, somewhere after the regulations for “the sale of dogs from pet stores and dog retailers,” after the increased penalties for “cockfighting, bearbaiting or pitting an animal against another,” after the ban prohibiting “a person from engaging in sexual conduct with an animal and related acts,” but before the rules governing “construction and attachment activities related to micro wireless facilities in the public way,” and before various appropriations, beginning on page 32,  are a few paragraphs that bar political subdivisions from intruding on a laundry list of employment fringe benefits, including sick pay.  Those benefits are to be determined exclusively by federal or state law, or agreement between the employer and its employees or a union representing them.

smoked_chinese_sausage

That a miscellanea such as SB 331 could even be enacted in Ohio requires a bit of linguistic and legislative gymnastics. Section 15(D) of the Ohio Constitution states that “No bill shall contain more than one subject, which shall be clearly expressed in its title.” The initial bill met those requirements.  Its title was “Establishes Regulations for Dog Sales” and dealt with that issue only. Then the sausage making began. The title now has 38 lines of text and references 42 sections of new or amended state law. A clear expression of one subject?