Fate of Ordinance will be determined by future rulings
03-31-2020
Brian L.Benitez
Ensley Benitez Law, PC
The Dallas Paid Sick Leave Ordinance (the “Ordinance”) was enjoined on March 30, 2020, pending (undoubtedly) further litigation. Judge Sean D. Jordan based his decision largely on argument that the Dallas ordinance violates the Texas Minimum Wage Act, which, in part, prohibits municipalities from legislating private sector wages. Pursuant to the Texas Constitution, municipal laws are unenforceable when they contain provisions which conflict with the Laws of the State of Texas. However, Judge Jordan also considered (and refused to dismiss) the argument that the enforcement powers written into the Ordinance violate the Fourth Amendment.
Similar ordinances in Austin and San Antonio were challenged, and both were enjoined on similar bases. But enjoining does not mean overturning. It simply means “wait.” Another element of this matter which might later introduce additional complications is that the Austin ordinance was challenged in state court, but the Dallas Ordinance was challenged federal court. Bottom line: we’ll have to wait and see.
The Ordinance would require that employees accrue one hour for every 30 hours worked in the City of Dallas, regardless of whether the employer has any presence in the City. Leave accrues in whole-hour increments unless the employer has written policy providing for fractional accrual.
For employers with 16 or more employees, the cap is 64 hours of paid sick leave in a 12-month period, and 48 hours for employers with fewer than 15 employees. Employers may restrict use during the first 60 days of employment if employment is guaranteed for at least one year.
Accrual must be on a calendar year basis, unless the employer provides a written notice either upon employment, or upon the effective date of the Ordinance. Paid Sick Leave can be used for various medical and non-medical reasons, including illness of an employee or their family member (including preventative care). If an employee or family member is the victim of stalking, domestic abuse, or sexual assault, then leave can also be used for medical reasons, to relocate, to obtain services from a victim services organization, and to participate in legal proceedings. Family member, for the Ordinance, means a child, parent, or spouse, or any other individual related by blood or whose close association with the employee is the equivalent of a family relationship.
Administrative burdens of the Ordinance include: a requirement that the employer provide a monthly electronic or written statement to employees showing the amount of available leave; amending employee handbooks to include notice of rights and remedies under the Ordinance; conspicuous placement of posters created by the City; and maintenance of additional records concerning accrued use and leave. The Ordinance allows employees to donate accrued leave to coworkers, or to voluntarily trade hours or shifts instead of using accrued leave. Transferred employees keep their accrued leave, and employees hired by a new employer also carry with them their accrued leave.
Brian Benitez is a partner at Ensley Benitez Law, P.C., whose practice emphasizes litigating matters important to small and medium businesses arising from areas including Construction Law, Employment Law, Contracts Law, Texas Property Code Liens, and Agency Law (e.g. representing businesses against government entities, such as OSHA, EEOC, TDI, TX Comptroller). Ensley Benitez Law, P.C., 8140 Walnut Hill Ln., Ste. 835, Dallas, TX 75231 469-501-5562. brian@eblawtexas.com.
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