A group of local business advocacy groups recently joined forces, hired a lawyer, and filed a lawsuit against the City of San Antonio. They’re challenging the paid sick leave (PSL) ordinance passed in 2018 and the updates to the ordinance that City Council approved in October. They’ve argued that a conversation about mandated paid sick leave for all might be worthwhile, but that City Hall isn’t the right forum for that conversation and that an ordinance mandating PSL is not legal.
Last month, Judge Peter Sakai heard the case and agreed with the business plaintiffs. Judge Sakai blocked the ordinance from going into effect, making a lot of people unhappy and leaving others feeling vindicated.
Put simply, the PSL ordinance requires any employer that employs people who do work in San Antonio to pay its employees when they take time off from work because the employees are ill, injured, or need to care for an ill family member or deal with a domestic violence crisis. It’s a complex ordinance with a lot of moving pieces, and it is the product of a lot of hard work put forth by the big-hearted people who drafted it and petitioned City Council to adopt it. While it was written with the best intentions by the paid sick leave advocacy groups who urged the judge to view the ordinance through a public health lens, those good intentions and arguments didn’t win the day in court.
Should employees fear losing pay or getting fired for missing work because they are sick at home? Does government go too far when it meddles with how employers administer their own businesses? Should employers do more to take care of their employees? How much regulation is too much regulation? All of these are legitimate concerns and they merit a healthy debate, but it’s a purely academic face-off of viewpoints if City Hall does not have the legal authority, under state and federal law, to enforce the PSL ordinance.
Admittedly, legal enforceability and technical nuances aren’t provocative topics that makes for exciting debate. They are wonky and don’t leave much to be argued. However, not taking legal enforceability seriously and not discussing it with the public would be a failure of leadership on the part of City Council. That’s why I’ve decided to take it on.
In 2018, I warned that the admirable intentions behind the PSL ordinance wouldn’t be enough to keep us from getting sued or from losing an injunction fight. I take no pleasure in pointing out that what I and other employment law attorneys predicted a year ago is now the reality we face – we got sued and a judge has prohibited us from enforcing the paid sick leave ordinance.
My prediction hinged on the universally recognized doctrine of preemption. Preemption is a centuries-old concept that recognizes the pecking order of governments and how conflicting rules passed by those governments are and are not recognized. A law passed by the federal government can’t be undone or weakened by a state law – that’s preemption. Similarly, preemption dictates that a rule by a county or a city that conflicts with a state or federal law can’t be enforced. For example, the Texas Constitution prohibits us from adopting and enforcing ordinances or rules that conflict with state statutes.
In the case of our PSL ordinance, there’s language in the Texas Labor Code that prohibits us from adopting an ordinance that conflicts with wage and hour rules created by the state. And, if there’s any doubt as to how we define “wages”, Chapter 61 of the Texas Labor Code expressly provides that wages are “compensation owed by an employer for: (A) labor or services rendered by an employee, whether computed on a time, task, piece, commission, or other basis; and (B) vacation pay, holiday pay, sick leave pay…” (emphasis mine).
That we’d get sued and that we’d lose the injunction fight wasn’t a difficult prediction to make for anyone paying attention to the lawsuit filed against the City of Austin over their almost identical PSL ordinance. The lawsuit in Austin was submitted to the Third Court of Appeals, which quickly looked at Austin’s ordinance and announced that it was likely to be in violation of Texas law. The appellate court justices ordered the City of Austin to stand down, and they embargoed the ordinance from being enforced.
It made perfect sense that the lawsuit against San Antonio would allege the exact same defects that were alleged in Austin. And predictably, it did.
Fast forward to the court hearing that led to Judge Peter Sakai’s injunction of the San Antonio PSL ordinance. Interestingly, the arguments you most frequently hear on social media, from chambers of commerce, radio shock jocks, or PSL advocacy groups, are not the arguments made in the briefings filed by the lawyers in this case. I call them the “usual-suspect arguments.”
PSL advocates say that workers are taken for granted and employers need to do a better job of taking care of them. They insist that San Antonio’s ordinance is a compassionate fix to a system that has disenfranchised workers for far too long. Opponents, on the other hand, say that government shouldn’t be telling private businesses what to do; that if a worker wants more workplace protections, then the worker can go work somewhere else. They argue that America is a free labor market and government interference in the employment relationship impinges on a business’ profitability.
Of all these usual-suspect arguments made by PSL opponents and advocates, none of them can be found in the lawsuit. Why? Because the lawsuit filed against City Hall is very limited in scope and it mostly turns on the technical issue of preemption. It seems that Judge Peter Sakai agreed with the plaintiffs’ legal preemption arguments when he granted the injunction request. A review of his Temporary Injunction Order reveals that he didn’t weigh any of the usual-suspect arguments. In his order, Judge Sakai wrote that the plaintiffs demonstrated a “likelihood on prevailing that the amended ordinance conflicts with and is preempted by the Texas Constitution, which prohibits city ordinances from conflicting with the Constitution of the State and the general laws enacted by the Texas legislature…”
You can quarrel with whether or not he got that decision right, but his lack of bias isn’t up for debate. Judge Sakai is one of the longest-serving jurists in this County. He is recognized statewide for being fair and ethical in all regards when it comes to applying the law to difficult disputes. Judge Sakai, in his role as a neutral arbiter, isn’t allowed to be swayed by emotional or ideological appeals. He isn’t permitted to consider how many people signed the PSL petition. He is also prohibited from considering the excellent arguments for why PSL protections should exist for all workers. Judge Sakai is only allowed to consider the law. He honored his oath even if it meant that PSL advocates would be disappointed or angry at him. And, it should come as no surprise that they were furious.
Since issuing his injunction order, Judge Sakai has been lambasted by the PSL organizers and even some elected officials for not being compassionate, for being anti-worker, for taking the side of abusive employers, and for ignoring the will of 144,000 signatories to the PSL petition. His critics have the right to say what they want about Judge Sakai, but they are acutely wrong about his impartiality.
So, what now? City Council and our City Attorney are now faced with an important decision. We can quickly appeal Judge Sakai’s decision to the Fourth Court of Appeals or we can take a wait-and-see approach as we monitor whether or not the Texas Supreme Court decides the fate of the Austin ordinance. I wish I could tell you that I’m optimistic that your city government will not push forward with round two of this expensive court fight – a second round that is almost certainly destined to fail since an appeal is already in the works.
I suspect that you’ll hear three rationales come out of City Hall. Advocates will argue that the pesky preemption rules aren’t as important as the big-picture fight for workers and the 144,000 people who signed the petition. Others will say that we made changes to the original version of the ordinance that distinguish it from the ordinance in Austin. You’ll also hear the argument that if we don’t appeal, we essentially cede ground in the local control struggle with Austin and Washington.
These arguments are well-intentioned, but I don’t think any lawyers are optimistic about the likelihood that these arguments will win the day in court. Those of us who practice labor and employment law are predicting that the San Antonio PSL ordinance is destined for an unheroic clobbering at either the Fourth Court of Appeals or the Texas Supreme Court – a clobbering paid for with taxpayers’ money.
Will PSL advocates and some of my colleagues on City Council eventually choose to make peace with the legal reality that preemption is an insurmountable obstacle? I hope so, but I have no reason to believe they will. Should we hold out hope that, the next time someone comes to us with a well-intentioned, but legally unenforceable, policy idea City Hall will choose to have a difficult conversation with the public about the limits to municipal authority? Surely, leadership isn’t just about easy-to-sell populist advocacy. Sometimes we are called upon to also manage expectations and occasionally deliver unpopular news. The latter is the hardest part of our job and it takes a bit of courage to wear that hat; especially when it means drawing the uncomfortable ire of formidable and organized constituencies like MOVE or the Texas Organizing Project.
There is no doubt that the PSL advocates’ message is important and that they have proven themselves to be indefatigable champions of worker rights. Whatever comes from this litigation, it is clear that thousands of San Antonians are hungry for this debate to happen now. The time has come for a vigorous conversation about paid sick leave in Texas, and I do hope that the paid sick leave advocates take this fight to our state legislature leaders – the right conversation in the right forum.