S.F. SICK PAY BATTLE IN US COURT -- WHAT'S NEXT FOR MILWAUKEE

City Panel to Hear Secrets from Langley on Expected Litigation Strategy
Battle Could Range for Years, Reach High Court, S.F. Experience Shows

Special to the Readers of Milwaukeeworld.com

By Michael Horne

and the Milwaukee World Hound Dog Team

The City of Milwaukee Judiciary and Legislation Committee, in response to a communication from City Attorney Grant Langley, will convene into closed session next Monday, November 17th, 2008 at 2:15 p.m. for the purpose of "conferring with the City Attorney ... with respect to litigation in which it is or is likely to become involved with ... related to the ordinance [080420] requiring employers within the City of Milwaukee to provide paid sick leave to employees."

Don't expect any word to get down to us about Langley's strategy in re sick leave. The "communication" contains no information; it is merely a file-holder, [File 081021], according to staff assistant Linda Elmer. The only action a committee could take on a communication is to place it on file, she adds. Any further action by the Milwaukee committee would require introduction of a file and a public hearing at a later meeting, which would occur no sooner than December 4th, 2008.

UPDATE: TUESDAY, NOVEMBER 18TH 2008

The Committee indeed went into closed session, however not until considerably after 2:15 p.m. Attendees at the hearing were: Grant Langley, Linda Burke and Tom Miller of the City Attorney's Office; Ald. Nik Kovac and Ald. Robert Bauman. Leslie Silletti represented the Mayor's office while Barry Zalben and Marianne Walsh were there on behalf of the Legislative Reference Bureau.

The committee then resolved to hold the matter to the call of the chair on a 5-0 vote.

[To receive electronic notification of developments in the implementation of the policy and of further council action, go to http://www.city.milwaukee.gov/der/PSLO --Ed.]

SAN FRANCISCO SICK PAY LAW AND THE COURTS:
Two Years Later, the Saga Continues

The Milwaukee city attorney's communication and the Judiciary and Legislation Committee's closed hearing are the first steps in a legal process that could lead to the United States Court of Appeals -- or beyond -- if the example of the San Francisco Health Care Security Ordinance provides any precedent.
That ordinance, enacted in July 2006, includes a provision creating a Health Access Plan and requires employers to pay the city between $1.17 and $1.76 per hour per employee for health care benefits. Those funds would provide health insurance for uncovered workers.
These provisions (not included in the Milwaukee ordinance) were the basis of a lawsuit filed against the City of San Francisco by the Golden Gate Restaurant Association shortly after the ordinance became law. [Golden Gate Rest. Ass'n v. City & County of San Francisco, 535 F. Supp. 2d 968, 970 (N.D. Cal. 2007]. Ultimately a three judge panel of the United States Court of Appeals Ninth Circuit found the law enforceable on September 30th, 2008. [Decision]. Golden Gate then followed on October 21st with a petition for rehearing en banc, and was supported by a brief from the U.S. Department of Labor and others. The city has until December 4th, 2008 to respond. [The entire, tedious chronology is here.] The case is far from over.

SHEPHERD EXPRESS MISSTATES S.F. RESTAURANT ASSOCIATION POSITION

So the San Francisco paid sick leave law is still very much a contentious one, which is something the Milwaukee city attorney will probably tell the aldermen Monday, if he has done his homework. And the Golden Gate Restaurant Association is still very much leading the charge against the ordinance, despite an article in the Shepherd Express on November 13th, 2008.
"In fact," author Lisa Kaiser writes, "the Golden Gate Restaurant Association, which represents restaurants in San Francisco, now supports that city's sick leave ordinance after initially opposing it. 'The mandate is affordable, considering the public benefit,' Kevin Westlye, the group's executive director, told the Los Angeles Times," Kaiser adds.
In fact, the Times article dates to July 5th, 2008 (no longer "now") and is about a California Legislative proposal [AB2716, below], to provide insurance benefits statewide. It was not about the city ordinance. The Westlye quote as it appeared in the Times seems out of context, as well, and is contradicted by other data in the same article.
Closer to "now," the Los Angeles Times on September 30th, 2008, had this from Westlye about the San Francisco ordinance:

The restaurant association's executive director, Kevin Westlye, said his organization continued to believe that the San Francisco ordinance was expensive and burdensome to employers.

He said that if it is allowed to stand, it could lead to a patchwork of conflicting state and local laws governing employer contributions to health insurance benefits

In the meantime, many restaurants, especially neighborhood eateries not frequented by tourists, "are barely making ends meet," Westlye said.

Some more expensive establishments that serve conventions, business groups and foreign tourists now are covering their new health insurance costs by putting a surcharge of 3% to 6% on their customers' bills.

That is hardly consistent with the Shepherd Express interpretation of the Golden Gate Restaurant Association's policy on the city ordinance, and is a key to what might be on Milwaukeeans' plates in the future.

LOCAL ORDINANCE TO ASSEMBLY BILL

After the San Francisco sick pay ordinance was approved, a bill was introduced in the legislature on February 12th 2008 to make the San Francisco law statewide. It was approved by the California Assembly May 28th 2008 on a 45-33 vote . The Senate held the bill "under submission," and it died there August 7th 2008. [AB 2716.] [Bill History]. Its sponsor promises to reintroduce the bill in future sessions. It would not be unreasonable to expect the Milwaukee bill to be used as the basis of a Wisconsin legislative proposal. We'll get to that another time.
--Michael Horne


Meanwhile, the City of Milwaukee Department of Employee Relations says the bill here will be fully implemented by February, 2009. It went into effect on Thursday, November 12th, 2008. We ain't seen nothin' yet.
--Michael Horne