United States: Texas Paid Sick Leave Question Of The Hour: What Do Employers Do Now?

Just when Texas employers were about to breathe a sigh of relief, believing a reprieve from mandatory compliance with three separate municipal paid sick leave ordinances was on its way, the Texas Legislature failed to pass a seemingly well-supported bill to preempt all such ordinances from taking effect and being enforced. Now paid sick leave ordinances in San Antonio and Dallas are scheduled to take effect on August 1, 2019. With open questions remaining, employers are left to decide how and when to comply.

In this article, we give some background information to help answer the lingering question: "What happened?" and answer certain questions employers may have while they consider their options.

What happened in the 86th Texas Legislative Session?

The ink was barely dry after Austin passed Texas' first paid sick leave ordinance in February 2018 when speculation began that, by the end of the 86th Texas Legislative Session in June 2019, the Legislature would have sent Governor Greg Abbott a bill to preempt the Austin ordinance from taking effect, and any other municipal paid sick leave ordinances that might be contemplated. Indeed, this was the thinking until May 2019. After all, Senate Bill 2487, which sought to prohibit any local government from "enforce[ing] an order, role, regulation, or policy regulating a private employer's terms of employment relating to any form of employment leave, including paid days off from work for holidays, sick leave, vacation, and personal necessity," was fast-tracked through the Senate and sent to the House within a month of its introduction.

This trajectory took a turn when language, meant to protect local anti-discrimination ordinances from being preempted, was removed. The bill became embroiled in heavy controversy from both business and public-interest groups for fear that passage would negatively impact individual equal employment opportunity rights, and in particular LGBT rights. The bill then stalled, and although the exemption language for local anti-discrimination ordinances was added back on the eve of the last week of the legislative session, the bill never made it to the final House Agenda.

Some retained hopes that a Special Session would be called to address this bill specifically, but on May 27, 2019, the final day of the 86th Session, Governor Abbott announced the session's conclusion, tweeting: "Thanks Senators for your work with the House to pass legacy legislation that will improve the lives of every generation. See you in 2 years. NO SPECIAL SESSION. #txlege."

Without a Special Session, there is no other procedural method to revive the bill, and the Texas Legislature will not have an opportunity to address the sick leave preemption issue until the next session in January 2021.

Is there any possibility of court intervention?

Yes, but it is possible that intervention will not occur, if at all, before the San Antonio and Dallas ordinances are slated to take effect on August 1, 2019.

The only pending lawsuit against a sick leave ordinance in Texas is against the Austin ordinance. This ordinance has been enjoined from taking effect since November of last year, pursuant to an appellate court order. In the same ruling, the appellate court held that the ordinance violated the Texas Constitution, which portends the possible nullification of the ordinance, should this ruling stand. The City of Austin has since appealed to the Texas Supreme Court, where even if the court decides to review the appeal, a final decision is likely still months away since the state's responsive brief of the issues is not due until June 28, 2019. Even then, the court may leave a final decision on the constitutionality of the Austin ordinance for another day.

We anticipate similar lawsuits will be filed against San Antonio and Dallas within the next 30 days, seeking to enjoin those cities' ordinances from taking effect. It is questionable, however, whether there will be sufficient time for the courts to rule on any motions seeking preliminary injunctions before the August 1, 2019, effective date.

What about the cities' activities—could San Antonio and/or Dallas delay the ordinances' effect?

It is possible that the status of the aforementioned appeal could convince leadership in San Antonio and/or Dallas to delay the effective date of their respective ordinances until, at least, the Texas Supreme Court decides the fate of the injunction against the Austin ordinance. However, the signs thus far have pointed in the opposite direction, toward application of the ordinances on August 1, 2019.

San Antonio Mayor Ron Nirenberg has made clear that the city intends to move forward with implementation on August 1, 2019. Moreover, the city has created an ad hoc committee to review the ordinance for potential revisions. Work is also reportedly underway by the Metropolitan Health District director to prepare policies and procedures to help clarify and implement the ordinance.

Dallas' path is less clear. It was the last of the three cities to enact its ordinance, and news on its implementation plan has been quieter. However, Dallas's newly elected Mayor, Eric Johnson, is expected to support implementation of the ordinance, and it would not be surprising if Dallas followed San Antonio by sticking with the August 1, 2019, effective date.

Even if the ordinances' effective dates are not delayed voluntarily by municipal leadership and/or intervening lawsuits, portions of the laws will not be effective until April 1, 2020. For example, certain civil penalties will not apply until later. The Dallas ordinance specifies that no penalties shall be assessed for violations until April 1, 2020, except violations of the ordinance's anti-retaliation provision. The San Antonio ordinance is not as explicit in removing the threat of civil penalties, but it does state that for violations occurring after the effective date but before April 1, 2020, the Health Department "may" issue a "notice" that a civil penalty may be assessed on or after April 1, 2020. In addition, neither ordinance is effective as against small employers (i.e., employers with five or fewer employees during the preceding 12 months) until August 1, 2021.

With all of this in mind, what actions should an employer take?

Employers that may be covered under any of the paid sick leave ordinances for Austin, San Antonio, or Dallas should immediately consider their compliance needs. For those employers that may be affected by the San Antonio or Dallas ordinances, and in consideration of the intervening legal challenges that may prevent the laws from going into effect, immediate consideration needs to be given to (1) developing leave policies and procedures and (2) determining the timing and rolling out of such policies. Regardless of an employer's immediate steps, it would be wise to set reminders to review the statuses of the applicable ordinances and to be prepared to roll out a compliant leave program as required by the August 1, 2019, effective date. Similar advice holds for employers that may be affected by the Austin ordinance. Although the ordinance is currently enjoined, employers may wish to invest in developing compliant policies and procedures to prepare for a rollout should the injunction be dissolved and the ordinance go into effect.

Regardless of the approach taken, employers with operations in any of these major cities in Texas are strongly encouraged to consult with knowledgeable employment counsel to help them consider options for their business.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Ogletree, Deakins, Nash, Smoak & Stewart
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Ogletree, Deakins, Nash, Smoak & Stewart
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions