San Antonio Businesses Going Back to Court Over Paid Sick Leave

Victory for advocates of a revamped paid sick leave ordinance set to take effect Dec. 1 may be short-lived if a coalition of business groups taking their case to court next week is successful in blocking it.

Revisions to San Antonio’s Sick and Safe Leave Ordinance, passed by City Council on Oct. 3, did not satisfy plaintiffs who filed a lawsuit against the ordinance in July. Now the group, represented by attorney Ricardo Cedillo, is moving forward with plans to request a temporary injunction to delay the measure.

A hearing for the injunction is scheduled for Nov. 7 in Bexar County District Court.

City Council voted 8-3 to approve revisions to the paid sick leave ordinance passed last year – with an amendment that requires all San Antonio businesses, regardless of size, to provide the benefit to their workers.

The ordinance, as originally written and passed by City Council in August 2018, would have required San Antonio employers to provide one hour of earned sick time for every 30 hours worked, with a yearly cap of 48 hours for small employers and 64 hours for those with more than 15 employees.

The newly approved ordinance requires San Antonio employers to provide the same amount of sick leave, but with a yearly cap of 56 hours for all employers, regardless of size.

Despite the City’s efforts to revise the ordinance and avert legal challenges, a group of local businesses and associations, including the San Antonio Restaurant Association and several staffing agencies, are moving ahead with legal action to block the ordinance.

“The revisions do nothing to address the state preemption problem,” Cedillo said. Because the number of sick leave hours an employee receives is earned based on a number of hours worked, he said, it should be considered a wage, which would violate the state’s minimum wage laws.

“There’s plenty of case law that says that doesn’t work,” Cedillo said. “So they have not adequately addressed the defect of state preemption – that’s first and foremost.”

When implementation of the law was delayed, a citizen-led Paid Sick Leave Commission met over the course of six months to come up with proposed changes that would make the ordinance more palatable for the business community and defensible in court.

City Attorney Andy Segovia said his office appreciates the work done by the Paid Sick Leave Commission and consideration by City Council in adopting an improved ordinance. “We are prepared to address whatever arguments are made by the plaintiffs at the upcoming injunction hearing,” Segovia said.

In November 2018, the 3rd Court of Appeals declared Austin’s paid sick leave ordinance unconstitutional, saying the ordinance is preempted by the state’s minimum wage law. Austin’s ordinance was the first of its kind in the state and similar to San Antonio’s ordinance.

The case is now pending in the Texas Supreme Court.

“The most intelligent thing to do is take a deep breath and wait to see what the Supreme Court says to see if it can be passed and enforced, instead of doing a fire drill,” Cedillo said of implementing the local ordinance. “Politically, this is something they have to go forward with, but it’s going to affect the bottom line [for businesses] and workers [and] we will have wasted a tremendous amount of time and energy behind this idea that is preempted by state law.”

Cedillo said that if the judge rules against the plaintiffs on Nov. 7, he will recommend an appeal. If the judge rules in favor, the City could also appeal, but Segovia said his office will cross that bridge when it gets there.

San Antonio Businesses Going Back to Court Over Paid Sick Leave

Shari Biediger

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