Nicole S Glass/Shutterstock.com
A consistent trend in the US business environment over the past three years has been a shift from federal to state and local governments as the main source of regulatory pressure on employers. Even as federal regulations stall or are rolled back under the Trump administration, businesses are facing higher minimum wages, paid leave mandates, and other new regulations at the state and local level. This trend has continued so far in 2019. While the new Democratic majority in the House of Representatives plans to push for an increase in the federal minimum wage from $7.25 to (eventually) $15 an hour, their intent is largely to put political pressure on Republicans with regard to labor issues, and the effort is unlikely to bear much fruit as long as Republicans control the Senate and the White House.
Meanwhile, however, the patchwork of state and local wage floors is rising and growing more complex. Minimum wages are going up this year in at least 22 US states plus Washington, DC, as well as a number of cities and counties. Most of these increases reflect automatic increases or inflation indexing built into the states’ minimum wage laws, while a few are the result of legislation or referenda passed last year.
A Texas state appeals court last week temporarily blocked a local ordinance in the capital city of Austin requiring employers to provide paid sick leave from going into effect, the Texas Tribune reported:
[T]he measure quickly drew opposition from local and state leaders, including a lawsuit filed in April by the right-leaning Texas Public Policy Foundation claiming that the city measure violates the Texas Minimum Wage Act. … The ordinance had been set to take effect Oct. 1.
“Without this stay, Austin business owners would be forced to incur significant costs implementing the requirements of the ordinance while its legality was in serious doubt,” said Robert Henneke, general counsel and litigation director for TPPF’s Center for the American Future. Texas Attorney General Ken Paxton, who has lent support to the lawsuit, also praised the news, saying the issue of minimum wage is “entrusted by the Texas Constitution solely to the Texas Legislature.”
Austin’s ordinance, which the city council passed in a 9–2 vote in February, has also faced opposition from Republicans in the state legislature, who promised at the time to pass legislation at the state level that would preempt it. Other states with conservative legislatures have taken similar measures to stop local governments from enacting liberal labor laws in the past year. Indiana banned cities from implementing “ban-the-box” laws, Missouri passed a preemption law to prevent cities like St. Louis from legislating higher minimum wages, and a Florida court found that a minimum wage increase in Miami Beach was preempted by state law.
The New York City Council passed legislation on Wednesday to put a one-year cap on for-hire vehicle licenses and to empower the city government to set a minimum wage for ridesharing drivers, in a crackdown on the largely unregulated growth of platforms like Uber and Lyft, the New York Times reported:
The proposal to cap ride-hail companies led to a clash among interest groups with taxi industry officials saying the companies were dooming their business and Uber mounting a major advertising campaign to make the case that yellow cabs have a history of discriminating against people of color.
Mayor Bill de Blasio and Corey Johnson, the City Council speaker, said the bills will curtail the worsening traffic on the streets and improve low driver wages. … But Uber has warned its riders that the cap could produce higher prices and longer wait times for passengers if the company cannot keep up with the growing demand.
New York is the largest market for Uber in the US, but already regulated ridesharing more stringently than many other American cities. To address concerns about unfair competition from the local taxi industry, New York requires drivers to obtain special licenses from the city’s Taxi and Limousine Commission, along with commercial liability insurance and special plates for their vehicles, which must meet certain eligibility criteria.
The new will not affect Uber and Lyft drivers who are already licensed to operate in the city, but will pause the issuing of new licenses immediately while the city studies the effects of the rise of ridesharing on traffic, driver wages, and the local economy.
Last week, The New York City Council passed a suite of 11 separate bills intended to address the scourge of workplace sexual harassment by providing additional protections for victims and imposing new obligations on organizations to prevent harassment, the Wall Street Journal reported.
The measures include a mandate requiring employers with 15 or more workers to conduct sexual harassment prevention training for all employees at least once a year. Employers in the city will also be required to display an anti-sexual-harassment poster designed by the local government, while prospective contractors will have to detail their anti-harassment policies in their bids for city contracts. City agencies will be obligated to report harassment incidents to the Department of Citywide Administrative Services, in order to collect more information on the prevalence of sexual harassment, which the city does not currently know enough about.
Another bill expands sexual harassment protections under the New York City Human Rights Law to employees of organizations with four or fewer employees, meaning all employees will be covered by them. Yet another bill increases the statute of limitations for filing harassment claims from one year to three. (Jackson Lewis attorneys offer a more complete description of the bills at the law firm’s website.)
Airlines For America, a coalition of major airlines including American, United, Southwest, Alaska, and JetBlue, has filed a lawsuit in federal court against Massachusetts Attorney General Maura Healey, seeking to either overturn or exempt their industry from the Bay State’s paid sick leave law. The airlines say the law violates the US Constitution by seeing to regulate interstate commerce, a right granted only to the federal government, and has hurt their business specifically by leading to more employee absences, the Boston Globe’s Katie Johnston reports:
Airlines already provide generous paid sick leave, according to the complaint, and closely monitor attendance to maintain safety and appropriate staffing levels and to keep flights running on time. But the Massachusetts law prohibits employers from disciplining workers for sick-leave absences and requires at least a three-day absence before medical documentation is required, which the industry group said hurts airlines’ ability to investigate abuse of sick leave.
The Massachusetts law, which went into effect in 2015, requires that companies with 11 or more employees provide an hour of earned sick time for every 30 hours worked, culminating in up to 40 hours of paid sick time a year. But flight and ground crews often accrue sick leave in ways that can’t be easily converted into hours worked, according to the trade group.
New York City Councilman Rafael Espinal has introduced a bill that would “make it unlawful for private employers in the city of New York to require employees to check and respond to email and other electronic communications during non-work hours.” The proposed law would apply to private organizations with more than ten employees and would fine violators $250 for each instance of noncompliance. The rationale behind the bill is to combat the high incidence of overwork among New York City residents, the New York Times’ Jonathan Wolfe notes:
The average New Yorker already works 49 hours and 8 minutes a week, longer than their counterparts in the next 29 largest cities in the U.S., according to a 2015 report by the city comptroller. And that’s not including hours spent emailing at home. A 2017 study found that, on average, workers spend an extra eight hours a week sending email after work. Research has also shown that people who responded to work communications after 9 p.m. had a worse quality of sleep and were less engaged the next day.
“When you don’t have recovery and time off, it leads to more stress and ultimately burnout and exhaustion,” said Larissa K. Barber, a professor of psychology at Northern Illinois University who conducts research on work-life balance and coined a term for the urge to respond: “telepressure.”
The law is modeled after the “right to disconnect” law that came into effect in France last year, which mandates that organizations of more than 50 people agree with their employees on hours when they are not required to perform online work tasks like checking email. Modern telecommunications indeed pose a challenge in terms of work-life balance, as employees who work at all hours run a greater risk of burnout and stress.
Washington Governor Jay Inslee on Wednesday signed a suite of legislation that will make it illegal for employers to use non-disclosure agreements and other contractual provisions to stop employees from reporting or discussing sexual harassment and assault in the workplace, The Hill reports:
One of the bills Inslee signed would prohibit employers from requiring nondisclosure agreements that would stop individuals from speaking out about sexual assault and harassment in the workplace. Another will prevent nondisclosure agreements from barring employee testimony in civil lawsuits relating to assault or harassment claims. That bill also allows those bringing the suits to conduct discovery on previous harassment claims.
Inslee also signed a new law voiding employment contracts and arbitration agreements that preclude an employee from filing assault or harassment complaints outside their companies.
Washington is the first state to take this kind of action in the wake of the #MeToo movement that revealed the still-high prevalence of sexual harassment and misconduct in the American workplace, including the statehouses in Olympia and other capitals.