Paid Sick Leave Quarterly: 4th Quarter 2019
By Michael J. Soltis, Esq.
Challenges to the Michigan paid sick leave (PSL) law and Alabama preemption law were resolved during the last quarter. The PSL turbulence in Texas continues as we await a decision from the Texas Supreme Court on whether it will wade into the PSL controversy.
Paid Sick Leave Laws Effective in Q4:
- San Antonio Sick and Safe Leave Ordinance (Dec. 1, 2019)
Paid Sick Leave Laws Effective After Q4
- Duluth Earned Sick and Safe Time Ordinance (January 2020)
- Nevada Paid Leave (Jan. 1, 2020)
- Bernalillo County (NM) Employee Wellness Act (July 1, 2020)
- Maine Earned Paid Leave Law (Jan. 1, 2021)
Paid Sick Leave Preemption Developments
The 11th Circuit Court of Appeals last month, in an en banc decision, rejected the challenge to Alabama’s minimum wage and employment benefits preemption law. The seven-judge majority held that the federal court does not have jurisdiction to hear the case because the plaintiffs did not have standing to bring it. Because of this holding, the court did not address the substance of the plaintiffs’ legal claims. Five judges dissented. Alabama’s Uniform Minimum Wage and Right-to-Work Act (HB 174) prohibits local governments from requiring employers to provide employees with wages or benefits, including paid or unpaid leave, not required by state or federal law. This law negated a City of Birmingham ordinance increasing the minimum wage. Plaintiffs claimed that HB 174 was motivated by “racial animus” and brought various race-based challenges to the Act. The plaintiffs may ask the Supreme Court of the United States to review this decision. Marnika Lewis v. State of Alabama et al. (11th Cir. Case No.17-11009).
Paid Sick Leave Litigation: Challenges to State PSL Laws
A federal district court has rejected claims by an association of airline carriers that the Washington State Paid Sick Leave Act (WPSL) as applied to flight crew was unconstitutional and preempted by the federal Airline Deregulation Act (ADA). The plaintiff had claimed the WPSL violated the dormant Commerce Clause – the implicit restriction on a state or local government’s ability to unreasonably burden interstate commerce and the 14th Amendment of the Constitution. The plaintiff had also claimed the ADA preempts the WPSL law with regard to both flight crew and ground crew because they relate to a “price, route or service of an air carrier.” Air Transport Association of America, d/b/a Airlines For America v. The Washington Dep’t of Labor and Industries et al (W.D. WA. Oct. 11, 2019).
The same plaintiff-airline association in the Washington case also sued in Massachusetts, arguing that the Massachusetts Earned Sick Time Law (MESTL) as applied to flight crew is unconstitutional and preempted by the federal Airline Deregulation Act (ADA), Air Transport Association of America, d/b/a Airlines For America v. Maura Healey in her capacity as Attorney General of the Commonwealth of Massachusetts (D.MA, Case No. 1:18-cv-10651, filed Apr. 4, 2018).
The Michigan Supreme Court last month rejected a request to issue an advisory opinion on the legality of the recently enacted state PSL law. The Court said “we are not persuaded that granting the requests would be an appropriate exercise of the court’s discretion.” Both state legislative chambers had asked the Court for an advisory opinion on the legality of the PSL law enacted last year through a “pass it, then amend it” political ploy. The legislators had hoped the Court would decide whether a law implemented through the use of that ploy was constitutional.
Paid Sick Leave Litigation: Challenges to Local PSL Laws
In November 2018, a Texas appellate court ruled that the Austin Earned Sick Time Ordinance is unconstitutional because it is preempted by the Texas Minimum Wage Act (TMWA). The City of Austin has asked the Texas Supreme Court to hear an appeal of that decision. The Austin PSL ordinance was to be effective on Oct. 1, 2018 but its implementation has been enjoined pending the outcome of the litigation. If the court decides to hear the case, its decision will likely affect the Dallas and San Antonio PSL ordinances as well. City of Austin, Texas et al v. Texas Ass’n of Business et al (TX SupCt No. 19-0025).
The Dallas City Council passed an Earned Paid Sick Time Ordinance in April. In July, the Texas Public Policy Foundation on behalf of two employers sued to enjoin its implementation and sought a preliminary injunction. The case is pending. ESI/Employee Solutions, LP et al v. City of Dallas et al (E.D.TX, Case 4:19-cv-00570). Dallas has announced that it “will not enforce the Ordinance except for violations of the anti-retaliation provision, until Apr. 1, 2020.”
San Antonio, TX
A Bexar County judge in November temporarily enjoined implementation of San Antonio’s Paid Sick and Safe Leave Ordinance. A trial date has been set for September 2020. If the Texas Supreme Court decides to review the decision on the Austin PSL, its decision may make the San Antonio trial unnecessary. Associated Builders & Contractors of South Texas et al v. City of San Antonio et al (Bexar County Court, 408th Judicial District; Cause No. 019CI13921).
New York City
American Airlines sued the NYC Department of Consumer Affairs alleging arguments similar to those raised in the Washington and Massachusetts cases described above. In addition, American alleges that the New York City Earned Safe and Sick Time Act as applied to its flight crews “violates the prohibition against extraterritorial application of local laws under New York” and is void for vagueness. American also alleges it complies with the PSL law for some of its ground crew because their collective bargaining agreement expressly waives the PSL law and provide a comparable benefits in the form of paid days off. American Airlines, Inc. v. NYC Dep’t of Consumer Affairs et al (E.D.N.Y. Case 1:19-cv-04424l, filed Aug. 1, 2019). The suit also seeks to enjoin NYC’s enforcement action filed Jul. 24, 2019 against American at the Office of Administrative Trials and Hearings.
Pittsburgh employers must beware the PSL ides of March. The Supreme Court of Pennsylvania held in July the City of Pittsburgh had authority to enact the Paid Sick Days Act. Last month, the City announced the PSDA would be effective Mar. 15, 2020. The Steel City also issued guidelines for administering the PSDA.
Other Paid Sick Leave Developments To Watch
- With primary campaign season in full swing, many of the candidates support some form of paid leave. Ballotopedia compiled the candidates’ statements about paid leave.
- New York State may be the next PSL state. In his Jan. 11, 2020 State of the State address and to fulfill his promise of a “secure and thriving workplace,” Governor Cuomo proposed a PSL law requiring employers with five to 99 employees to provide five paid sick days and larger employers to provide at least seven paid sick days. Businesses with four or fewer employees will guarantee five days of job-protected unpaid sick leave to their employees every year.
- Starbucks has agreed to create a $150,000 restitution fund for current and former employees and to take other remedial steps to settle allegations that it violated the New York City Paid Sick and Safe Leave Law, according to a press release from Mayor Bill de Blasio’s office. According to that release, an investigation established that that Starbucks policy “required employees to find a substitute when they used sick leave and that if an employee failed to find that substitute, it could result in “corrective action, up to and including termination of employment.”
***This article originally appeared on the Paid Sick Leave @Work site and was reposted on the DMEC website with their permission.***