Well ahead of the next regular session of the Texas Legislature, starting in January, the issue of whether cities can require private employers to provide paid sick leave is shaping up as a potentially major debate for lawmakers in 2019.
The debate is raging now in several of the state’s largest cities as Republicans and business groups rush in to try to stop city councils from taking action.
Back in February, the Austin City Council voted to require businesses in that city to give employees one hour of sick time for every 30 hours worked up to 64 hours. Employees could use the time on themselves or to take care of a family member. Any unused time could be carried over to the next year. Employers could face fines of up to $500 per violation.
Austin City Councilman Greg Casar, a former organizer with the Workers Defense Project, said the city's policy is the "most progressive" of such ordinances around the country.
"Not only did we pass the first paid sick-leave policy in a Southern city, not only did we pass the first paid sick-leave policy in the state of Texas, but it is also one of the most progressive of the 40 or so paid-sick-leave policies that exist across the country,” Casar said. “It guarantees every single worker in the private sector paid sick days, regardless of the size of the business or nonprofit you work for.”
The Texas Association of Business, using attorneys from the Texas Public Policy Foundation, has sued to block Austin from implementing the paid sick leave ordinance.
“Austin and Texas business leaders know how to run their businesses and can do so more productively without over-reaching regulations that stifle the economy and cost jobs,” said TAB CEO Jeff Moseley as the suit was filed. “We needed to move quickly and stop any bleeding… it's overreaching, and it's hard-hitting to small employers."
Meantime, Dallas City Council and the City of San Antonio are eyeing similar measures.
Annie Spilman, state legislative director for the National Federation of Independent Business, wrote in the Dallas Morning News that the city has “no business” even considering it.
“The state Supreme Court says cities can't tell businesses to provide specific benefits unless those benefits bear a ‘substantial relationship’ to a legitimate governmental interest," Spilman said. "In the Austin case, we believe the city has no legitimate interest in regulating the relationship businesses have with their employees.”
“We believe the Texas Constitution clearly leaves such decisions to the state Legislature, which can weigh the benefits and burdens of such mandates across the entire state,” Spilman said. “Otherwise, businesses that operate in multiple jurisdictions would have to contend with a patchwork of rules and regulations that would be tough to sort through, especially for small businesses."
Also this week, Attorney General Ken Paxton wrote a letter to the mayor and city council in San Antonio “to inform you that no matter the Council’s decision or the result of any ballot initiative, Texas law preempts a municipal paid sick leave ordinance.”
Paxton’s letter, seen in its entirety here, says the city would be in violation of the state’s Minimum Wage Act if it attempts to enact a paid sick leave ordinance.
“When the Legislature enacted the Minimum Wage Act, it intended to set a single, uniform policy for all of Texas,” Paxton said. “The policy it set made no mention of requiring employers to provide paid time off from work. The law expressly preempts cities like San Antonio from passing a different law simply because they disagree with the judgment of the state’s elected representatives.”
Rep. Paul Workman, R-Austin, and other Republicans have already said that if lawsuits to block these ordinances are not successful, legislation will be filed to preempt cities from moving forward. "Regardless of costs and its impracticality, Austin's bitter pill of a private-employee mandate to leave work will be shoved down private businesses' throat because of the City of Austin's continued war on the private sector,” Workman said.
All this is in line with Gov. Greg Abbott’s hostility toward local government.
"As opposed to the state having to take multiple rifle-shot approaches at overriding local regulations, I think a broad-based law by the state of Texas that says across the board, the state is going to pre-empt local regulations, is a superior approach," Abbott in March of last year.