Paid sick leave for some but not in Austin, until state high court rules

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With an appeal idling before the Texas Supreme Court, Austin, the first city to pass a paid sick leave ordinance in the state, will not join Dallas and San Antonio when their ordinances are set to take effect Aug. 1.

It apparently will be months before parties in the Austin lawsuit know whether that law will be upheld. San Antonio and Dallas, meanwhile, aren’t waiting for the high court ruling. Officials in those cities have made preparations to implement their ordinances. The director of Dallas’ Office of Equity and Human Rights is preparing a plan to meet the Aug. 1 activation date.

Those cities had waited to see whether the Texas Legislature would step into the fray. However, bills that could have affected sick leave laws died during the session that ended in June. Dallas passed its ordinance in April; San Antonio’s was approved last August.

An appellate court ruled in November that Austin’s sick leave ordinance violates the Texas Constitution by running contrary to the Texas Minimum Wage Act. The appellate court issued an injunction preventing the ordinance from going into effect.

The city appealed the injunction, which put the ordinance before the state supreme court. Opponents of the law have until the end of next week to respond to the city’s brief.

The high court could rule on the injunction or simply follow the appellate court’s recommendation and send the case back to the district court for a trial on the merits of the lawsuit.

In either case, it will be months before Austin businesses know if they will be required to provide their employees with up to eight days or 64 hours a year of sick time with pay.

“It’s hard to know which way the Supreme Court will go,” said Rob Henneke, lead attorney for the Center for the American Future, which brought suit in April 2018. “If they choose to review the case I would expect them to uphold the Third Court decision. Or they could choose to review the case after it’s fully litigated.”

The main legislation that would have affected the sick leave situation was Senate Bill 15, which would have prohibited mandatory paid sick leave ordinances statewide.

Despite the backing of Gov. Greg Abbott, Lt. Gov. Dan Patrick and House Speaker Dennis Bonnen, however, the bill by Sen. Brandon Creighton, R-Conroe, was amended, then chopped up into four separate measures, none of which made it to the House floor for consideration.

“The legislation is dead, and we have no hope that anybody has any sort of concern for the business community,” Annie Spilman, state director for the National Federation of Independent Business, told The Texas Tribune. “This really was not a good session for the business community.”

In advance of the Dallas ordinance taking effect, labor advocates on Thursday rallied at City Hall to celebrate what Diana Ramirez, civic engagement director for the Austin-based Workers Defense Project, called a “historic victory” for Dallas workers, according to a Dallas Morning News story.

“Paid sick time is a basic right that every person deserves,” Ramirez said. “No one, and I mean no one, should have to choose between taking a pay cut or losing a job and staying home to take care of themselves or a sick child.”

Business groups that are part of the Austin lawsuit, including the Texas Association of Business, counter that businesses, not city governments, should decide how to apportion benefits for their employees. Imposing mandatory paid sick leave will force businesses to cut spending elsewhere, which could cost jobs, those groups say.

All of the celebrating and gearing up by city departments will have been premature if the state Supreme Court ultimately agrees with the ruling by a three-judge panel of the Third Texas Court of Appeals.

In that ruling, Justice Jeff Rose wrote that “The plain language of the TMWA [Texas Minimum Wage Act] preempts the ordinance, and, as a result, the ordinance violates the Texas Constitution’s mandate that no city ordinance shall contain any provision inconsistent with the general laws enacted by the legislature of this state.”

Until the higher court says otherwise, the city that launched paid sick leave in Texas cannot force businesses there to do what businesses in Dallas and San Antonio might soon be required to do.

“We think the Third Court decision spoke clearly,” Henneke said. “We’ll have our response to the Supreme Court by the end of next week.”

Mark Lisheron can be reached at [email protected].

 

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