collective-bargaining agreement

Paid Leave_shutterstock_371740363The state of Maryland appears poised to join seven other states and various local jurisdictions (including Montgomery County, Maryland) already requiring employers to provide paid sick and save leave. On April 5, 2017, the Maryland House of Delegates approved a bill previously passed by the Maryland Senate that would require most employers with at least 15 employees to provide up to five paid sick and safe leave days per year to their employees, and smaller employers to provide up to five unpaid sick and safe leave days. Although the bill contains an effective date of January 1, 2018, the actual effective date will depend on action by Governor Larry Hogan.

The following employees are not covered by the bill:

  • Employees who regularly work less than 12 hours a week;
  • Employees who are employed in the construction industry;
  • Employees who are covered by a collective-bargaining agreement that expressly waives the requirements of the law;
  • Certain “as-needed” employees in the health or human services industry.

Under the bill, an employer may not be required to allow an employee to:

(1) earn more than 40 hours of earned sick and safe leave in a year;
(2) use more than 64 hours of earned sick and safe leave in a year;
(3) accrue a total of more than 64 hours at any time;
(4) use earned sick and safe leave during the first 106 calendar days the employee works for the employer.

The bill also preempts local jurisdictions from enacting new sick and safe leave laws except for amending existing laws enacted before January 1, 2017, i.e. the existing law in Montgomery County.

The bill passed with enough support in both chambers to survive a promised veto by Governor Hogan, who favored an alternative that would require the benefit only for companies with at least 50 workers and make tax incentives available for smaller companies that offered the leave. However, if he still vetoes the bill, lawmakers will not have an opportunity to override the veto until next year’s legislative session beginning on January 10, 2018, which means the bill would not take effect until after January 1, 2018, and could possibly be subject to amendment in the next session.

*Marc-Joseph Gansah, a Law Clerk – Admission Pending in the firm’s New York office, contributed to the preparation of this blog post.

By Stuart M. Gerson

As expected, the last day of the Supreme Court’s term proved to be an incendiary one with the recent spirit of Court unanimity broken by two 5-4 decisions in highly-controversial cases. The media and various interest groups already are reporting the results and, as often is the case in cause-oriented litigation, they are not entirely accurate in their analyses of either opinion.

In Harris v. Quinn, the conservative majority of the Court, in an opinion written by Justice Alito, held that an Illinois regulatory program that required quasi-public health care workers to pay fees to a labor union to cover the costs of wage bargaining violated the First Amendment. The union entered into collective-bargaining agreements with the State that contained an agency-fee provision, which requires all bargaining unit members who do not wish to join the union to pay the union a fee for the cost of certain activities, including those tied to the collective-bargaining process. 

The Court below had agreed with the State that agency fees were justified under the Court’s earlier precedents, particularly Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977).  However, the Supreme Court’s majority, besides noting what it finds to be the weakness of Abood,  focused particularly on the fact that the employees in question were not really public employees.  Other than the fees paid to them, all of the indicia of employer status inured to the covered patients who had complete control over the selection of the workers and their conditions.

Justice Kagan, writing for the four liberal dissenters, sees the matter as allowing the straightforward application of Abood to the “fair share” provision at issue here that she argues covers all public employees. This, of course, was not the majority view. However, before proclaiming public employee unionization as seriously imperiled, as some commentators already have, please note that the majority criticized, but did not overrule, Abood. And, I’d suggest that that isn’t likely to happen anytime soon because I believe that the Chief Justice, who has attempted to be a moderating force on the Court, going back at least to the Affordable Care Act decision, and Justice Kennedy, as well, are just not going to go there. They are strong supporters of stare decisis, and they will stay that way.

An even more controversial decision is the long-awaited holding in Burwell v. Hobby Lobby Stores, Inc. Headlines already are blasting out the breaking news that “Justices Say For-Profits Can Avoid ACA Contraception Mandate.” Well, not exactly.

Over a lengthy and impassioned dissent by Justice Ginsburg, writing for the four liberals (herself and Justices Breyer, Kagan and Sotomayor), the majority, again led by the opinion of Justice Alito, held that the Religious Freedom Restoration Act of 1993 (RFRA), which prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion prevented the application to closely-held (non-public) corporations of the Affordable Care Act provision requiring that employers offer birth control coverage to their employees. The Court held that closely held for-profit corporations are entitled to religious freedom protections and, in contravention of RFRA, the government did not demonstrate that the mandate was the least restrictive means of furthering a compelling government interest.

Both sides of the discussion are hailing Hobby Lobby as a landmark in the long standing public debate over abortion rights. It is not EBG’s role to enter that debate or here to render legal advice, but we respectfully suggest that the decision’s reach is already being overstated by both sides.  In the first place, the decision does not allow very many employers to opt out of birth control coverage – only closely-held for-profit companies that have a good-faith ideological core, as clearly was the case for Hobby Lobby. That renders such companies functionally the same as non-profits that are exempted from the mandate by the government. Publicly-held companies are not affected by the decision (though some are likely to argue that Citizens United might require such an extension. Nor are privately-held companies that can’t demonstrate an ingrained belief system.

Moreover the decision implies a number of significant qualifications.  For example, RFRA doesn’t shield  employers who might cloak illegal discrimination (e.g., against gay people or racial minorities) as a religious practice.  Moreover, the decision concerns only the contraceptive mandate and doesn’t necessarily mean that all mandates must fail if they conflict with an employer’s an employer’s religious beliefs. Importantly, Justice Kennedy’s concurring opinion suggests that the government could pay for the coverage itself, so that women receive it. It is not unlikely that the Obama administration will seek to do just that.  In any event, per the majority, the government’s shortcoming was that it hadn’t shown that the mandate was the least restrictive means to accomplish its end. 

Not only did Justice Kennedy concur in a manner overtly respectful of the dissent, but the fact that Chief Justice Roberts didn’t assign the opinion to himself strongly suggests that he is not prepared to stand in a position of strong conflict with the Court’s liberals but instead to be a mediating figure.

The number of unanimous opinions of the Court this term has been the highest in recent years. Notwithstanding the inherently divisive nature of the two controversial opinions decided today, one thinks that it is not unlikely that greater concord will be the hallmark of the Roberts Court as it was for the Warren Court in earlier times.