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MA’s Paid Sick Leave Policy Was Passed with Labor’s Help, but Could Hurt Some Union Members

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In an unfortunate turn of events for unionized workers in Massachusetts, the legal principle of preemption could disqualify some members from paid sick leave under the state’s recently approved ballot initiative.  Labor unions were a driving force in Question 4’s passage by a 60 to 40 percent margin, but legal precedent may make some union members victims of their own collective bargaining agreements, despite many having already enjoyed paid sick leave under their contracts.

The law firm of Nutter, McClennen, & Fish explains:

Under the new law, which is to be codified at M.G.L. ch. 149, § 148C, employers must allow employees to accrue one hour of sick time for every 30 hours worked, up to a maximum of 40 hours in a calendar year. For employers with 11 or more employees, the sick leave must be paid at the same hourly rate the employee earns from employment at the time the employee uses the paid sick time. The employee must be permitted to carry over up to 40 hours of accrued leave into a subsequent year, though the employer may limit an employee’s use of sick time to 40 hours in a calendar year.

The Act provides that an employee is entitled to use accrued sick leave –

(1) to care for a physical or mental illness, injury or medical condition affecting the employee or the employee’s child, spouse, parent, or parent of a spouse;
(2) to attend routine medical appointments of the employee or the employee’s child, spouse, parent or parent of a spouse; or
(3) to address the effects of domestic violence on the employee or the employee’s dependent child.

Paid vacation or paid time off (or “PTO”), will satisfy the requirements of the Act if a sufficient amount is accrued and may be used for the purposes described above.

The drafters of the Act made clear that the law is intended to establish minimum standards for sick time accrual and use, but that employers are free to offer benefits that exceed the requirements of the Act. The Act expressly states that it is not to be construed to “diminish or impair the obligation of an employer to comply with any contract, collective bargaining agreement, or any employment benefit program or plan in effect on the effective date of this section that provides for employees greater earned sick time rights than the rights established under this section.”

Section 301 of the Labor Management Relations Act states that “lawsuits for violations of labor agreements between employers and unions can be brought in federal court.”  This is the basis of the United States Supreme Court’s doctrine of preemption. This doctrine means that section 301 will preempt a state law if a claim would require an analysis of a CBA.   

Nutter, McClennen, & Fish LLP explain preemption as it pertains to this scenario:

In practice, this means that a lawsuit filed by a union employee against his or her employer for state-law claims – such as breach of contract or wrongful discharge – is likely to be dismissed because it is preempted by Section 301.

While most CBA’s include paid sick leave, some unionized industries do not enjoy this benefit.  Therefore it is only a matter of time before a union worker who does not receive paid sick leave takes their case to federal court.  Nutter, McClennen, & Fish LLP examine the possibility of preemption being used in such a case:

Under an exception to the ‘well-pleaded complaint’ rule, “any state law claim which is subject to complete preemption under Section 301 of the LMRA is considered a claim arising under federal law,” and therefore subject to removal to federal court. Magerer v. John Sexton & Co., 912 F.2d 525, 528 (1st Cir. 1990). Presumably, then, any lawsuit brought under the Act on behalf of a union worker would end up before the United States District Court for the District of Massachusetts and, perhaps, the First Circuit Court of Appeals. This is important, because two decisions from the First Circuit imply that it may find the Act to be preempted.

The language of the bill is sticky, the firm contends, and will result in difficult, subjective case-by-case decision-making by the courts:

The language of the Act seems to require the Act to prevail if it provides rights that are greater than those offered in a collective bargaining agreement. However, this would require a court to measure a collective bargaining agreement against the Act, which would not necessarily be a simple “apples to apples” comparison – a court would have to analyze how many sick-time hours are accrued under the agreement, at what rate the hours are paid, the availability of any paid vacation or paid-time-off hours, and for what purposes the hours may be used. It would be impossible for a court to determine whether the Act diminished or impaired an employer’s obligations under a collective bargaining agreement without actually analyzing the agreement.

Massachusetts is only the second state — following Connecticut in June — to implement a statewide paid sick leave policy.


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