Posted by Brendan Fischer on July 30, 2014

On July 11, Elizabeth Taff was sick, vomiting -- and preparing sandwiches at Subway.

Taff asked to go home. Her supervisor refused, unless Taff found someone to cover her shift. He advised her to “just switch shirts” to hide the puke stains.

"I was touching everybody’s sandwiches," Taff said later.

"I’m like, ‘This ain’t right.’

Taff did not have access to paid sick days, so couldn’t leave work without losing pay or her job. And even though Taff worked through her illness on that day, she was fired after an ambulance took her to the hospital.

Taff was not alone. At least 75 percent of workers in food preparation and service must choose between working sick or losing their paycheck or their job. Twenty-three percent of workers say they have been fired or threatened with firing for taking time off for themselves or a family member.

But the movement to change that continues gaining momentum.

On July 28, the San Diego City Council approved a measure providing an estimated 279,000 workers an opportunity to earn paid sick days, and raising the minimum wage for 172,000 workers to $11.50 by 2017.

The same day, Eugene, Oregon’s city council voted to bring paid sick time to an estimated 25,000 workers, allowing workers to earn an hour of paid time for every 30 they work, with a maximum of 40 hours a year.

Two days later, workers in New York City could begin using accrued paid sick days, thanks to a law passed in 2013 and expanded earlier this year.

In early 2014, Newark, New Jersey enacted a paid sick day law. The District of Columbia expanded paid sick days to more workers. These victories came on the heels of successes the previous year not only in New York City, but also in Portland, Oregon and Jersey City, New Jersey.

If Eugene's and San Diego's laws take effect -- and they still have legal hurdles to overcome -- it will make nine cities and one state, Connecticut, that guarantee workers the right to earn paid sick time. More are certain to come.

Growing Momentum on Worker Justice

“There has been a shift in recent years" around the issue of paid sick days, says Ellen Bravo, director of Family Values @ Work, a 21-state coalition working towards paid leave legislation.

“There is more and more awareness that these are economic issues, jobs issues, as well as women and family issues and worker justice issues,” Bravo said, “not to mention a public health issue.”

An estimated 40 million workers, or forty percent of the workforce, cannot take sick days without losing wages or possibly their jobs, according to the Bureau of Labor Statistics. Many of the jobs added in the slow economic recovery are low-wage, more than eighty percent of which don't come with sick days. The rate is highest among people of color: more than four in ten African American workers and nearly six in ten Latino workers lack paid sick days.

Workers who do not have access to paid sick days are one-and-a-half times more likely to go to work sick with a contagious illness, putting their co-workers and customers at risk, and costing an estimated $160 billion each year in lost productivity. Delaying treatment for illness can cause conditions to worsen, leading to more emergency room visits and increased costs for public health insurance programs.

Children are more likely to go to school sick when their parents can't get off work to care for them, causing illness to spread. Women disproportionately bear the burden of caring for a sick child or elderly relative, and if they don't have paid sick days, they are forced to choose between their family or a paycheck. Paid leave and other family-friendly policies could increase women's labor force participation by 7 percentage points, according to a recent report from the White House Council of Economic Advisers.

ALEC-Inspired State Preemption Efforts Returned

As the paid sick day movement has gained momentum, its opponents – particularly those in the restaurant industry – have tried to thwart it.

“The opposition is stepping up its game,” Bravo said.

The most common tool of the corporate interests opposed to paid sick days have been "preemption" laws to block local and county governments from enacting paid sick day measures.

Since 2011, eleven states have thwarted local control through paid sick day preemption laws. Alabama and Oklahoma joined that list in 2014.

The paid sick day preemption effort can largely be traced back to the American Legislative Exchange Council, or “ALEC.”

At ALEC's August 2011 meeting in New Orleans, a paid sick day preemption bill recently signed into law by Wisconsin Governor Scott Walker was shared with the Labor and Business Regulation Subcommittee of the ALEC Commerce, Insurance and Economic Development Task Force as a model for state override. ALEC's Labor and Business Regulation Subcommittee at the time was co-chaired by YUM! Brands, Inc., which owns Kentucky Fried Chicken, Pizza Hut and Taco Bell.

Legislators attending the Labor and Business Regulation Subcommittee meeting were also handed a target list and map of state and local paid sick leave policies prepared by ALEC member the National Restaurant Association (NRA). An NRA executive also participated in that meeting.

Oklahoma, Alabama Preemption Bills Followed Familiar Script

After that August 2011 ALEC meeting, similar preemption legislation has spread across the country, in most cases introduced or sponsored by ALEC legislators, and with the support of the state NRA affiliate.

Oklahoma and Alabama are no exception.

The Oklahoma NRA affiliate, the Oklahoma Restaurant Association, played a key role in pushing SB 1023, which crushed local efforts to guarantee a fair wage and paid sick days in that state. The bill was signed into law in April by Governor Mary Fallin, an ALEC alumni who gave the keynote at ALEC's Spring meeting last year.

In an end-of-legislative session report, the Oklahoma Restaurant Association's lobbyist claimed credit for SB 1023, describing it as “ legislation the ORA introduced” and boasting that it “passed the Senate, and the House, without an amendment of any kind” and “was signed by the Governor without fanfare.”

The fanfare came after the sneak attack was successful, with Rachel Maddow and others expressing shock at the legislature's effort to stomp out local control.

“Since that time many questions have been raised about the legislation,” the Oklahoma Restaurant Association's lobbyist boasted, “but none before it was enacted.”

Alabama also snuck the preemption bill through the legislature, at the behest of the NRA.

At the end of 2013, the Alabama NRA affiliate announced to its members that in the coming legislative session: “We might have a few surprises, such as possibly introducing a bill that would prohibit local municipalities and jurisdictions from enacting paid sick leave ordinances.”

Indeed they did. HB 360 was proposed by Rep. Jack Williams, an ALEC member, and quickly passed into law with little public notice.

In its end-of-session report, the Alabama Restaurant and Hospitality Association told its members that getting the preemption bill passed was its top priority.

"Not an easy task since granting more leave time has been a topic promoted in the media on popular television programs such as the Today show," its lobbyist reported. Yet the Alabama NRA affiliate, the ARHA, was undeterred.

"ARHA was the ONLY trade association that stepped up to the plate to get this bill introduced and passed," its lobbyist wrote of the preemption measure. "A bill signing with [Alabama] Governor [Robert] Bentley will memorialize this work and hang proudly in the ARHA office."

The Pennsylvania NRA affiliate also identified paid sick days preemption as a top priority for this legislative session, after a paid sick days measure passed in 2013 by the Philadelphia City Council fell one vote short of overriding a mayoral veto.

In October 2013, a paid sick day preemption bill introduced by ALEC member Rep. Seth Grove and backed by the Pennsylvania NRA failed to pass. In March, ALEC member Rep. John Eichelberger offered it as an amendment to a bill designed to protect domestic violence victims, turning a popular bill with bipartisan support into a political football. The cynical amendment effort was ultimately unsuccessful.

Ongoing Battles in Eugene and San Diego

The two most recent cities to pass paid sick day laws, Eugene and San Diego, still have additional hurdles to overcome.

Even though a majority of the Eugene City Council voted for paid sick days on July 28, weeks earlier the Lane County council set up a showdown: it passed a county-level preemption measure to block Eugene or any other city from requiring businesses provide paid sick days to their employees. The constitutionality of the county's effort is questionable, and it will be left up to courts to decide whether the preemption measure violates home rule.

In San Diego, the city council voted 6-3 to approve a paid sick day and minimum wage bill, after hundreds of people packed hearings in support of the measure. Former basketball star Bill Walton testified in favor of the bill and urged the council to adopt the proposal, which he called "good economics and good public policy."

Not surprisingly, the California Restaurant Association "aggressively oppose[d]" the legislation.

Mayor Kevin Falcouner is expected to veto the measure, which the council will likely override. Yet, the bill's opponents could then initiate a referendum to overturn the legislation -- as business interests have done with two other council actions over the past year -- which would delay implementation until San Diego residents vote on the measure in 2016.

Before the San Diego City Council vote, when paid sick day and minimum wage proponents were planning to put the issue on the November ballot, a competing initiative apparently backed by Republican interests began circulating petitions for an increased minimum wage -- but which would have exempted 93 percent of San Diego businesses.

The face of the initiative was a failed Democratic candidate, but the address listed with the city was the same one used for a variety of endeavors tied to Republican operative TJ Zane. Among other things, Zane is on the board of the California Public Policy Research Center, a State Policy Network affiliate that has received funding from the Charles Koch Charitable Foundation. This attempt to confuse voters on election day fizzled when the San Diego City Council voted on the measure rather than leaving it to a referendum.

"Not Just Good Policy, but also Good Politics”

Despite the NRA's aggressive efforts to crush the paid sick day movement, more wins are expected before 2014 is done.

In November, residents of Massachusetts will vote in a referendum to guarantee workers in medium and large businesses one hour of paid sick time for every 30 hours worked, up to 56 hours annually for businesses with more than 10 workers, and up to 40 hours for those with 6-10 workers. Oakland residents will vote on both paid sick days and an increase in the minimum wage.

The California state assembly passed a modest measure earlier this year to make workers eligible for one hour of paid sick leave for every 30 hours worked, yet allow employers to limit the use of that leave to three days per year. If the law passes the Senate, it would guarantee paid sick days in the most populous state in the country. The measure encourages localities to enact more generous provisions for workers to earn sick time, as both San Francisco and San Diego have done.

Polls consistently show broad popular support for paid sick days from across the political spectrum, and political leaders have finally begun to take notice.

“That is the story of the mayoral campaign in NYC,” Bravo said.

New York City Council Leader Christine Quinn had been considered a front-runner for the 2013 mayoral race, but many believe her long-standing opposition to paid sick days may have cost her the election. Quinn blocked the legislation for three years before a long-term campaign by worker's advocates put her in the hot seat and made it politically untenable to continue blocking the bill.

The candidate who won the race, Bill DeBlasio, was vocal in his support for paid sick days as part of his platform for combatting income inequality. After becoming mayor he backed an expansion of the law and has made its implementation a priority. In July, DeBlasio personally handed out flyers in subway stations to make the public aware of their rights under the law.

Following the New York City election, other politicians say they have evolved on the issue. Philadelphia Mayor Michael Nutter vetoed paid sick day bills passed by the City Council in 2011 and 2013, but now claims to have changed his mind and created a task force to study the impact of the policy and how to implement it. Bravo says her group has been approached by an increasing number of elected officials interested in proactively pursuing paid sick day policies.

“The exciting news is that the momentum built by these campaigns, along with the demonstrable public support, has raised awareness among candidates and public officials that this is not just good policy, but also good politics,” Bravo said.

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Brendan Fischer

Brendan Fischer is CMD's General Counsel. He graduated with honors from the University of Wisconsin Law School.

Comments

When enough customers get sick after eating fast food, the "market" will correct the problem, just as
the tobacco industry was eliminated once it was found that it was killing millions (worldwide) per year.

Let the market work: it will take care of the sick worker problem just as it got rid of cigarettes.

It seems to me that those restaurants refusing to send obviously sick employees home are breaking health code laws!! Why would ANY state want to overrule such laws?? Has this country become so corrupt, that the rights of companies/corporations have become more important than those of each individual?? What has happened to our legislators?? Have they turned themselves into commodities, which corporations can buy and sell?? We need strong legislation to protects our citizens' rights -- not our corporations' to break the laws!!

Yes.