San Antonio's ordinance requiring that employers provide earned time off to their employees, a measure currently on hold, amounts to the city meddling where it is preempted from doing so, an attorney representing business interest said.
"Because municipalities cannot pass ordinances of this type," Ricardo G. Cedillo, founder and shareholder of Davis, Cedillo & Mendoza in San Antonio, told the Texas Business Coalition. "That’s what 'preemption' means."
Texas' Constitution prohibits city ordinances from containing provisions inconsistent with the state's Constitution and general laws enacted by the state legislature, Cedillo said.
Ricardo Cedillo
The Texas Minimum Wage Act also prohibits municipalities, including San Antonio, from enacting an ordinance that governs wages, Cedillo said.
San Antonio's "Sick and Safe Leave" ordinance, adopted in October, requires employees in the city to provide earned paid time off to their employees for absences due to illness or injury, medical treatment or preventative care, domestic or sexual assault, and care of a family member.
"In general, it is compensated at normal rates of pay and affects employers that do not already provide comparable or more generous time off," the city's website says.
Late last week, Bexar County District Court Judge Peter Sakai issued a temporary injunction on the Dec. 1 start date for mandatory paid sick leave in San Antonio.
Cedillo represents businesses in litigation fighting San Antonio's sick leave ordinance.
"The city's amended ordinance exempts from its application employers which have written contracts with labor organizations representing employees which are authorized by state or federal law providing for collective bargaining between the employee and the labor organization," Cedillo said. "Plaintiffs and intervenor plaintiffs demonstrated a probable right to relief and a likelihood of prevailing on their claim that the Amended Ordinance violates the Freedom of Association Clause by conditioning its application on the exercise of a constitutional right to not join a union. Tex. Const. art. I, § 27."
The ordinance also violates the constitutional Equal Protection Clause "because the Amended Ordinance intentionally treats employees covered by collective bargaining agreements differently than other employees without any rational basis for the difference in treatment," Cedillo said.
Sakai's decision to put a temporary hold on the ordinance wasn't a real surprise, Cedillo said.
"This was not unexpected, because the law very clearly favors the position of my clients' on these issues," he said. "We understand that there are very strong feelings on these issues by the City Council and the citizens' groups, and we respect their objectives, but this ruling is clearly driven by the fact that these issues do not belong at City Hall, and they certainly don’t belong in the courts."
It doesn't involve only San Antonio, Cedillo said.
"This is a policy question that must be addressed at the state legislature," he said.
Sakai has not yet set a trial date and a similar case involving the City of Austin already is pending before the state Supreme Court.
"This was a temporary injunction," Cedillo said. "We move forward with a final trial on the merits, probably in late summer or early fall of 2020. The Supreme Court may rule on the City of Austin case by then, which may resolve the issue and make the trial unnecessary."
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