How Pittsburgh’s paid sick leave law ended up back in court

Supporters of the law say they will appeal to the state Supreme Court if they lose Tuesday.

Updated, 2 p.m.

Pittsburgh’s paid sick leave law will be back in court this week.

On Wednesday, seven Commonwealth Court judges will hear arguments about an ordinance, passed by City Council last year, that gives most1 private sector employees the right to paid days off for illness.

Those in favor of the local provision — including the City of Pittsburgh, the service workers union and grassroots groups like Restaurant Opportunities Center United and Pittsburgh United — argue that it addresses a public health issue and protects vulnerable workers.

Those who oppose it — led by the Pennsylvania Restaurant and Lodging Association — say the city’s home rule charter forbids Pittsburgh from putting this type of requirement on private businesses.

The legal battle over paid sick leave in Pittsburgh has been going on for almost a year, and it probably won’t end Wednesday.

How we got here

In July 2015, Councilmember Corey O’Connor introduced a bill that required employers to give their workers up to five or nine paid sick days, depending on company size. The ordinance estimated that around 40 percent of people who work for private businesses do not have paid sick leave.

“It’s for all workers [in the city], but there’s a lot of people who already have this [paid sick time],” O’Connor told Pittsburgh City Paper at the time. “So really [we’re] trying to fight for people that don’t. … Most service employees do not.”

A version of the ordinance passed Council the following month, with workers at businesses with fewer than 15 employees able to accrue up to three sick days per year and those at businesses with 15 or more able to accrue up to eight.

But from the start, the city knew that the law would likely be challenged.

Councilmember Darlene Harris, who abstained from voting on the bill, told the Pittsburgh Post-Gazette “she sought an opinion from the city solicitor’s office and was told the ordinance runs afoul of the Home Rule Charter and leaves the city vulnerable to a legal challenge.”

Just one month later, the Pennsylvania Restaurant and Lodging Association and local businesses sued the city arguing just that.

The rights of a second-class city

At issue: whether or not Pittsburgh, as a home-rule municipality, has the right to pass such a law. The city and Service Employees International Union Local 32BJ, an intervening defendant in the case2, say it does.

But the PRLA and local businesses — including Church Brew Works, Dirt Doctors Cleaning Service, Modern Cafe, Inc., Rita’s Italian Ice and Storms Restaurant and Catering — argued in their original complaint that the law “represents an illegal exercise of municipal authority.”

“In attempting to provide a one-size-fits-all mandate to every business within the city regarding sick leave, the City of Pittsburgh has not only ignored the individual business realities facing employers, but has violated the statutory limits on its power,” the groups said in the suit.

An Allegheny County Court of Common Pleas judge ruled in favor of that argument in December.

Judge Joseph M. James noted that the state’s Supreme Court has previously ruled that Pittsburgh’s second-class status prevents it from “regulating businesses by determining their ‘duties, responsibilities or requirements.’ ” That decision has had wide-reaching implications for the city, including preventing it from raising the minimum wage for all workers.

Pittsburgh lawmakers also cited the state’s Disease Prevention and Control Law — which allows municipalities with boards or departments of health to enact disease prevention ordinances or regulations — as proof that they had the authority to pass the law.

But James ruled against that argument, because Pittsburgh “has neither a board not department of health.”

Mayor Bill Peduto called the judge’s decision “a step backward for Pittsburgh.”

“The United States is the only industrialized country in the world that doesn’t guarantee its workers paid sick leave,” he said in a statement. “Cities and states are working to resolve this void left by Washington, D.C. special interests.”

The city and SEIU 32BJ appealed James’ ruling to Commonwealth Court shortly after it was issued. The case is scheduled to be heard there this Wednesday.

The battle probably won’t end Wednesday

Both the city and the restaurant association have found allies in their communities.

Ten local “women’s advocates, health care providers, labor unions, religious leaders and public health organizations” are supporting the city’s appeal and have filed an amicus brief.3 The coalition includes the Women’s Law Project, ROC United of Pittsburgh and United Food and Commercial Workers Local 23.

On the other side, the National Federation of Independent Business Small Business Legal Center, Pennsylvania Food Merchants Association and Pennsylvania Chamber of Business and Industry filed an amicus brief in support of striking down the law.

Ahead of Wednesday’s hearing, a spokesperson for SEIU 32BJ said, “We are optimistic the court will stand on the right side of the law and ensure hundreds of thousands of Pittsburghers have this much-needed benefit.” A spokesperson for Councilmember O’Connor echoed those sentiments: “We are hopeful that our case will be successful before the court.”

Timothy McNulty, a spokesperson for the mayor, said “the city had clear authority to enact this ordinance under the state Constitution, the City’s Home Rule Charter and the state Disease Prevention and Control Law. Attempts to block it infringe on the City’s constitutionally-protected legislative authority and threaten the City’s ability to meet its public health obligations.”

Request for comment from the PRLA’s attorney was not immediately returned.

If the Commonwealth Court rules against the paid sick leave law, there are plans to appeal the case to the state Supreme Court, according to Jordan Romanus of ROC United’s Pittsburgh office.

In the meantime, ROC United’s local chapter has been recruiting local businesses to give their employees paid sick leave, law or no law. So far, Apteka, Bantha Tea Bar and Mixtape in Garfield and Bloomfield have signed up, giving them the right to post “Proud Member of Paid Sick Days Business District” stickers in their windows. There’s no law against that.

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