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Attempt at pre-enforcement challenge to new Massachusetts paid leave law not yet ripe

By Ronald Miller, J.D.

A request by a group of construction industry employers’ associations for sweeping pre-enforcement relief against the Massachusetts Earned Sick Time Law (ESTL) was not ripe for adjudication ruled the First Circuit, in dismissing their action for lack of jurisdiction. The employers contended that the ESTL was preempted by LMRA Section 301 with respect to those employers in the state who were parties to collective bargaining agreements with unions. However, the appeals court pointed out that Sec. 301 preemption can “defeat” a claim brought under the ESTL only if the specific claim depended upon the provisions of a CBA. Because no particular claim has been identified this case, it was not sufficiently developed to be fit for a claim-specific preemption inquiry (Labor Relations Division of Construction Industries of Massachusetts, Inc. v. Healey, December 16, 2016, Barron, D.).

Paid leave initiative. In 2014, voters in Massachusetts overwhelmingly approved the ESTL through the initiative process. The ESTL provides that employers of a certain size must compensate their employees for the sick time that they use for specified purposes. The Attorney General is to enforce the provisions of the ESTL and may seek injunctive or declaratory relief. The law also provides for the imposition of civil penalties. In addition, the ESTL also authorizes an “aggrieved” employee to bring actions under the ESTL, provided that such an employee first files the complaint with the Attorney General to notify her of the impending suit.

On July 3, 2015, the Attorney General promulgated regulations that defined certain terms in the ESTL. Specifically, the ESTL provides that covered employers must compensate their employees for such paid sick time “at the same hourly rate as the employee” would have been paid had the employee not taken leave.

Pre-enforcement relief. Before any action to enforce the ESTL had been filed against any employer who is a party to a CBA by either the Attorney General or by any aggrieved employee, a group of construction industry employers’ associations and employers filed suit in district court. They sought relief from a broad category of enforcement of actions that may be brought under the ESTL. The employers contend that Sec. 301 preemption nonetheless entitles them to sweeping relief from the ESTL’s eventual enforcement. Specifically, the employers contended that the ESTL was “preempted” by LMRA Sec. 301 with respect to those employers in the state who are parties to a CBA. They sought “a judgment prohibiting the Attorney General from: [(1)] Granting private rights of action to employees who are members of collective bargaining units; and [(2)] enforcing civil sanctions pursuant to [the ESTL] against employers who are signatory [sic] to collective bargaining agreements.”

Challenges. The Attorney General responded to the employers’ suit by filing a motion to dismiss. As an initial matter, the district court dismissed what it characterized as the employers’ facial challenge. Additionally, the district court determined that the employers’ challenge to the ESTL was an “as-applied challenge” to only those enforcement actions (whether brought by the Attorney General or by employees) that would involve CBA interpretation was not ripe for adjudication.

Preemption inquiry. With respect to the facial challenge to the ESTL, the First Circuit concluded that it was not ripe and thus must be dismissed for lack of jurisdiction. A claim is ripe only if the party bringing suit can show both that the issues raised are fit for judicial decision at the time the suit is filed and that the party bringing suit will suffer hardship if “court consideration” is withheld. On the other hand, a “claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.”

Here, the employers’ pre-enforcement request for relief against the Attorney General rested on their contention that Sec. 301 preemption would block any such suit. Thus, they argued that there was no reason to wait to provide them the relief they sought because the case was sufficiently developed to be adjudicated. The First Circuit disagreed, pointing out that unlike a typical claim of field preemption a claim of preemption under Sec. 301 that is lodged against a suit to enforce a state-law cause of action does not involve “purely legal questions, where the matter can be resolved solely on the basis of the state and federal statutes at issue.” Rather, Sec. 301 preemption can “defeat” a claim brought under the ESTL only if the specific claim is determined to depend upon the provisions of a CBA. This case was not sufficiently developed to be fit for a claim-specific preemption inquiry.

At this pre-enforcement stage, there was no particular claim that has been identified at all. Accordingly, the court could not perform the requisite claim-specific preemption analysis as to any claim that may be brought. Rather, the court had before it only hypothetical ESTL claims, the details of which are not known.

Harm to the parties. Moreover, the court’s analysis under the first prong of the ripeness inquiry dictated the outcome of the second inquiry, concerning the harm to the parties seeking relief that come from “withholding of a decision” at this time. The analysis “focuses on ‘direct and immediate’ harm. This case failed to satisfy the first prong because it is contingent on the details of future ESTL claims that are not now known. For the same reason, the harm to the employers from any delay in having their case adjudicated is necessarily also contingent. Accordingly, the suit was dismissed for lack of jurisdiction.