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.

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.

Vermont Earned Sick Time Law: PSL-4Step Analysis

The Vermont Earned Sick Time law was enacted in March 2016. The Vermont Commissioner of Labor has issued “sick time rules” to “clarify practices and policies in the administration and enforcement” of the law. Here, I analyze the law and rules using the PSL-4Step framework.

Step 1: Does it apply?

Effective Date:  January 1, 2017, except that the law does not apply to an employer with five or fewer employees who are employed for an average of no less than 30 hours per week during the previous calendar year, i.e., a small employer, until January 1, 2018. A “new employer” is not subject to the law until one year after the employer hires its first employee. The effective date of the DOL’s rules is January 15, 2017.

Employer Definition: “Employer” includes every type of business entity and any common carrier by rail, motor, water, air or express company doing business or operating with Vermont.

Employee Definition: “Employee” means any person employed by an employer for an average of at least 18 hours per week during a year.  “Employee” does not include

federal employees;

state employees who are either exempt or excluded from the State classified service but not an individual that is employed by the State in a temporary capacity;

an individual under 18 years of age;

an individual employed for 20 weeks or fewer in a 12-month period in a job scheduled to last 20 weeks or fewer;

an employee who works on a per diem or intermittent basis, i.e., who  works only when he or she is available to work, is under no obligation to work for the employer offering the work, and  has no expectation of continuing employment with the employer;

an employee of a “health care facility” or “facility” if the employee only works on a per diem or intermittent basis;

a sole proprietor or partner owner of an unincorporated business who is excluded from the provisions of chapter 9 of this title  (employer’s liability and workers compensation); or an executive officer, manager, or member of a corporation or a limited liability company for whom the Commissioner has approved an exclusion from the provisions of chapter 9 of this title;

an employee of a school district, supervisory district, or supervisory union employed pursuant to a policy on substitute educators who is under no obligation to work a regular schedule and is not under contract or written agreement to provide at least one period of long-term substitute coverage, defined as 30 or more consecutive school days in the same assignment.

Primary Place of Work: An employee whose primary place of work is in Vermont is eligible to accrue and use earned sick time (PSL) under this law, regardless of the employer’s primary location. If an employee’s primary place of work is in Vermont, all of the employee’s hours of work are counted for accrual, regardless of where the work is performed.

 Step 2:  The Benefit

Accrual: One hour of leave for every 52 hours worked, including overtime hours, beginning the first day of employment. An employer may impose a waiting period of up to one year before an employee can use accrued leave (for those employed on January 1, 2017, an employer may require a waiting period that ends no later than December 31, 2017). Between January 1, 2017 and December 31, 2018, an employer may cap use at 24 hours per annual period; this minimum cap increases to 40 hours on January 1, 2019.

NOTE: for small employers, the waiting period must end no later than December 31, 2018.


Timing of Accrual Calculation:  The amount of accrued sick time shall be calculated as it accrues during each pay period or quarterly, although an employee may use earned sick time as it accrues (assuming the employee is beyond the employer’s waiting period). Continue reading

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.


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?

Blue States, Red States and Paid Sick Leave Laws

At this most wonderful time of the year, I was wondering how PSL jurisdictions voted in the 2016 presidential election. Conventional political wisdom suggests that PSL jurisdictions would be the deepest of blues on the political color spectrum. Let’s fact-check that, to use a Punditry 101 phrase.

For each PSL munballot-1294935_640icipality, I used voting data for the county in which it is located. Rounding percentages to the nearest whole number, here is what I found:

Six of the seven PSL states were blue, half giving Secretary Clinton more than 60% of the vote (CA, MA, VT). President-elect Trump won Arizona by a plurality of 49% of the votes.

The first two PSL jurisdictions ever—the District of Columbia and San Francisco—were very deep blue, casting 91% (D.C.) and 85% of votes for Secretary Clinton.

All eight California counties with PSL municipalities voted for Secretary Clinton by very wide margins in all but one county:

San Francisco County (San Francisco) 85%
Alameda County (Berkeley, Emeryville, Oakland) 79%
Los Angeles County (Long Beach, Los Angeles, Santa Monica) 71%
San Diego County(San Diego) 56.

Six of seven New Jersey counties with PSL municipalities voted for Secretary Clinton by wide margins: Continue reading

Arizona Lawsuit Joins PSL Docket

Add another entry to the PSL litigation docket. The Arizona Chamber of Commerce and a host of other plaintiffs last week filed a lawsuit against the State of Arizona and a host of other defendants seeking to enjoin implementation of Arizona Proposition 206. Arizona voters approved that proposition by a nearly 60% margin in November. It raises the minimum wage in Arizona to $10 per hour on January 1, 2017 and requires most Arizona employers to provide paid sick leave beginning July 1, 2017.  saguaro-232762_640

The plaintiffs claim that the proposition violates the “Revenue Source Rule” of the Arizona constitution because it will lead to increased costs to the state and it does not identify a revenue source to fund the additional cost, essentially an unfunded mandate. It also alleges that the proposition violates the “Separate Amendment Rule” of the state constitution because the ballot question “cobble[d] together” distinct issues, denying voters the opportunity to vote on the minimum wage and PSL issues separately. The complaint also alleges that the proposition does not address the increased costs to Arizona business, especially those with tipped employees, although it is not clear to which legal argument this relates. The suit was filed in Superior Court in Maricopa County.

The Arizona lawsuit is the fourth pending case to directly challenge a paid sick leave law. The others are pending in Oregon, Minneapolis and Pittsburgh. A PSL-related case is pending in Alabama. My recent post about these cases is here.

Yet Another Opt Out from Cook County Paid Sick Leave Ordinance

The City of Oak Forest has joined the villages of Barrington and Rosemont in opting out of the Cook County Earned Sick Leave Ordinance. Oak Forest enacted its superseding ordinance last week. Since each opt out warrants an asterisk to the county ordinance, there are now three asterisks.


Noting that the Cook County paid sick leave ordinance places an “undue burden” on Oak Forest employers, Oak Forest affirmed that employers must comply with federal and state employment laws and guidelines concerning paid sick leave. To remove any doubt, the ordinance adds that “no additional obligations with regard to paid leave….including without limitation, any additional obligations adopted by the Court of Cook Board of Commissioners, shall apply within the City Oak Forest.” The City Council Agenda Memo and text of Ordinance No. 2015-06-0545O is here.

The City of Oak Forest has approximately 28,000 residents and is about 24 miles southwest of downtown Chicago.


Nine Oregon Counties Need Not Comply with State Paid Sick Leave Law

Nine Oregon counties need not comply with Oregon’s Paid Sick Leave Law because it is an unfunded liability imposed in violation of the Oregon Constitution, a Linn County Circuit Court judge ruled last week. The ruling affect the nine counties that were plaintiffs in the case, and does not affect the application of the PSL to other employers within those counties.

In 1996, Oregon voters approved a constitutional amendment requiring that the state fund any new program or increased level of service it imposes on a local government. (Art. XI, Section 15). If a local government needed to spend more than one hundredth of one percent of its budget on a new program or increased level of service, the local government “is not required to comply” with the law. Oregon’s Paid Sick Law went into effect on January 1, seal-39732_6402016. Penalties for violations begin on January 1, 2017.

Each plaintiff-county submitted an affidavit establishing that it would cost more than one hundredth of one percent of its budget for administrative expenses relating to the PSL law. These expenses included training costs as well as a “new and separate layer of record keeping, separate annual data input, separate personnel rule changes and employee notification, and a higher volume of tracking employees’ sick leave time.”

The court rejected the state’s argument that the constitutional provision does not apply to employee benefits, citing a 1999 Oregon Attorney General opinion that the constitutional provision would apply to a proposed increase in public employee retirement benefits that was being considered. The state may appeal the judge’s decision.

This ruling is limited to these nine counties, as employers. I suspect that the other 27 Oregon counties and the other local governments are now sharpening their pencils and calculating their costs associated with the PSL law. Additional “piggyback” litigation seems likely.