Legal brief Filed by NFIB in case against Pittsburgh's mandated leave law

Date: September 01, 2015 Last Edit: May 09, 2016

Pennsylvania Restaurant & Lodging Association, et al 

Appellees

v.

City of Pittsburg, et al.
Appellants

 

Amici Curiae of the National Federation of Independent Business Small Business Legal Center, Pennsylvania Food Merchants Association and
Pennsylvania Chamber of Business and Industry

 

I.                   Municipal Authorities Have Only Those Powers Affirmatively Conferred by the People of the Commonwealth—And Cannot Act Contrary to an Express Limitation 

II.                Public Policy Favors the Establishment of Uniform Labor and Employment Standards Throughout the Commonwealth

A.     A Municipality’s Decision to Impose Heightened Standards on Employers Has Statewide Impacts—Including Potential Economic Dislocation

B.     The Legislature Was Likely Concerned About Balkanization of Labor and Employment  Standards That Might Impede Economic Growth

III.             An Amorphous “Public Health” Exception Would Swallow the Rule

A.     There is No Limiting Principle to the City’s Proffered “Public Health” Exception

B.      Any Exception for Public Health Regulation Should be Construed Narrowly to Allow Only For Regulation of Physical Conditions

 

 

 

 

 

 

 

 

Interest of Amici Curiae

The National Federation of Independent Business Small Business Legal Center (NFIB Legal Center) is a nonprofit, public interest law firm, which was established to provide legal resources and to be the voice for small businesses in the nation’s courts through representation on issues of public interest affecting small businesses. The National Federation of Independent Business (NFIB) is the nation’s leading small business association, representing members in Washington, D.C., and all 50 state capitals. Founded in 1943 as a nonprofit, nonpartisan organization, NFIB’s mission is to promote and protect the right of its members to own, operate and grow their businesses.

NFIB represents 325,000 member businesses nationwide, including nearly 14,000 in Pennsylvania. Its membership spans the spectrum of business operations, ranging from sole proprietor enterprises to firms with hundreds of employees. While there is no standard definition of a “small business,” the typical NFIB member employs 10 people and reports gross sales of about $500,000 a year. The NFIB membership is a reflection of American small business.

To fulfill its role as the voice for small businesses, the NFIB Legal Center frequently files amicus briefs in cases that will impact small businesses. In this case NFIB Legal Center has a great interest in enforcing Pennsylvania’s prohibition on municipal regulation of business. Specifically, NFIB Legal Center is concerned that a decision upholding Pittsburgh’s paid sick leave ordinance would invite balkanization of labor and employment standards—a result that would seriously complicate business operations for many companies.

The Pennsylvania Food Merchants Association (PFMA) is a statewide trade association advocating the views of convenience stores, supermarkets, independent grocers, wholesalers and consumer product vendors operating in Pennsylvania. PFMA’s membership consists of national chain stores, regional chains and locally owned independent retailers of all sizes. PFMA’s 800 + corporate members operate more than 3,200 retail food stores and employ more than 150,000 Pennsylvanians.

PFMA’s mission is to improve the public image, effectiveness and profitability of companies providing products and services in agriculture production, consumer education, consumer packaged goods, food retailing and wholesale food distribution. To fulfill its role as the voice for the food retail and distribution industries, the PFMA regularly files amicus briefs in cases that will impact its members. 

The Pennsylvania Chamber of Business and Industry is the largest broad-based business association in Pennsylvania. Thousands of members throughout the Commonwealth employ greater than 50 percent of Pennsylvania’s private workforce. The PA Chamber’s mission is to improve Pennsylvania’s business climate and increase the competitive advantage for its members.

The amici share a concern that a decision upholding Pittsburgh’s paid sick leave mandate would disrupt Pennsylvania’s unified system of business regulation and would hamper economic development in the Commonwealth. Amici are concerned such a decision would open the door for balkanization of labor and employment standards and would result in economic dislocation. Thus, in addition to the direct impact of Pittsburgh’s paid sick leave mandate, the Amici share grave concerns over the cumulative impact of multifarious regulatory mandates that may drive businesses to invest or relocate elsewhere.  

Summary of Argument

The City of Pittsburgh plainly violated Pennsylvania Municipalities Act, which prohibits home rule cities from imposing “duties, responsibilities or requirements upon businesses, occupations or employers…” 42 Pa.C.S. § 2962(f). To be sure, the City fully acknowledges that it is a home rule city subject to these restrictions, and that its paid sick leave ordinance imposes burdens on employers. Nonetheless Pittsburgh defends its mandate on the tortured theory that the General Assembly intended to allow an open-ended exception for local regulation concerning matters of “public health.”

The City’s argument should be rejected because such an amorphous exception would swallow the rule. Indeed, most every act of regulation may be said to have some attenuated nexus to public health. Thus, to avoid a self-defeating construction, the Municipalities Act should be construed as strictly forbidding economic regulation of business, regardless of cited public health concerns.

The General Assembly intended unequivocal preemption of any municipal ordinance purporting to directly impose legal duties upon employers. The text allows an exception only where the Legislature has expressly authorized regulation of business practices in some uniform manner. This makes sense because the General Assembly’s manifest purpose was to prevent balkanization of labor and employment standards at the local level.

It matters not how vigorously the Pittsburg City Council may disagree with the General Assembly’s policy judgment. As a constitutional matter, the City has only those powers expressly conferred upon it, and lacks powers affirmatively withheld. Accordingly, the City’s litany of public policy arguments must be rejected. As Justice Oliver Wendell Holmes once said “a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way…” Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 (1922).

 

ARGUMENT

I.                   Municipal Authorities Have Only Those Powers Affirmatively Conferred by the People of the Commonwealth—And Cannot Act Contrary to an Express Limitation 

A fundamental precept of the American system is that political sovereignty rests in the states, which ultimately represents the collective will of the people. See Chisholm v. Georgia, 2 U.S. 419, 471 (1793) (Jay, Chief J) (“[T]he sovereignty of the nation is in the people of the nation, and the residuary sovereignty of each State in the people of each State…”). Of course, the people maintain the prerogative to bestow certain powers on local municipalities; those conferred powers are a derivative of the state’s police powers. Vanlandingham, Municipal Home Rule in the United States, 10 Wm & Mary L Rev. 269 (1968) (“In the absence of state constitutional provisions to the contrary, [local governments] are subject wholly to state legislative control.”) (citing Dillon, Commentaries on The Law of Municipal Corporations, § 237 (5th ed. 1911)). It is therefore axiomatic that municipalities are political subdivisions of the state, and that they have only those powers expressly conferred by the State Constitution and enabling statutes. City of Philadelphia v. Schweiker, 579 Pa. 591, 605, 858 A.2d 75, 84 (2004) (“Municipalities are creatures of the state and have no inherent powers of their own.”); City of St. Louis v. Western Union Tel. Co., 149 U.S. 465, 467 (1893).

In Pennsylvania the people have unmistakably conferred limited powers on local municipalities. While the State Constitution confers a general police power on home rule cities, it expressly forbids any enactment on a subject preempted by state regulation, or on a matter for which the General Assembly has otherwise prohibited regulation. Pa. Const. Art. 9, Sec. 2. Likewise, Pennsylvania’s Home Rule Law, expressly limits the powers of home rule cities: “A municipality which has adopted a home rule charter may exercise any powers and perform any function not denied by the Constitution of Pennsylvania, by statute or by its home rule charter.” 53 C.S.A. § 2961 (emphasis added).

Thus home rule cities have been delegated a general authority to enact law in any manner not expressly, or implicitly, in conflict with state law. Shweiker, 579 at 605 (citing PA JR.2D Municipal and Local Law § 3:42 (2002); McQuillin, THE LAW OF MUNICIPAL CORPORATIONS § 10:13 (3d ed.2004); Gary E. French, Home Rule in Pennsylvania, 81 Dick. L. Rev. 265 (1977). But, this means that Pittsburgh remains wholly subordinate to the enactments of the General Assembly. The reason is simple. The General Assembly remains the supreme legislative body, which maintains the exclusive prerogative to limit municipal regulatory powers, at any time, as may best serve the interests of the people of the commonwealth.

II.                Public Policy Favors the Establishment of Uniform Labor and Employment Standards Throughout the Commonwealth

Home rule laws vary from state-to-state. But all states foreclose local regulation on certain matters of special statewide concern. See Laurie Reynolds, Home Rule, Extraterritorial Impact, and the Region, 86 Denv. U. L. Rev. 1271, 1274 (2009). The difference is that some states leave it to the courts to determine what is and is not a matter of “statewide concern,” whereas other states place responsibility on the Legislature to specify what matters are beyond the purview of local regulation.[1] See Vanlandingham, Municipal Home Rule in the United States, 10 Wm. & Mary 269 (1968). Pennsylvania falls in the latter camp. The Constitution vests the General Assembly with the prerogative to prohibit local regulation on any matter that it deems inappropriate for local regulation. Pa. Const. Art. 9, Sec. 2.

Accordingly, with enactment of the Municipalities Act, the General Assembly decided that matters of economic regulation are best addressed at the state level—therein establishing a clear prohibition on any municipal regulation imposing “duties, responsibilities or requirements upon businesses, occupations or employers…” 42 Pa.C.S. § 2962(f); see also Section 2962(c)(4) (prohibiting municipalities from imposing regulatory requirements on manufacturers). There are numerous reasons why the General Assembly may have felt compelled to establish this policy of uniform business regulation. But the most obvious aim was prevent balkanization of labor and employment standards across a patchwork of local municipalities in order to protect Pennsylvania’s business-friendly reputation and economic vitality.

A.     A Municipality’s Decision to Impose Heightened Standards on Employers Has Statewide Impacts—Including Potential Economic Dislocation

Economic regulation is best addressed through general regulation at the state level. That was the judgment of the General Assembly. Building Owners and Managers Ass’n of Pittsburgh v. City of Pittsburgh, 603 Pa. 506 (2009). And there are good reasons for the Assembly to insist that it should have the final word on economic regulation of business.

For one, the General Assembly is in the best position to weigh the many competing concerns over social and economic issues, which have broad and diffused impacts on society at large. See Devlin v. City of Philadelphia, 580 Pa. 564, 578-79, 862 A.2d 1234, 1242 (2004). Indeed, the Assembly is presumed to consider the full impact of such regulation while speaking on behalf of all the people of the commonwealth. By contrast, municipal actors are charged with acting only in the interest of their local community—which means that they will often fail to consider the broader implications to neighboring communities or the State itself.

Without question local actors often fail to take into account the big picture. To be sure, a municipal decision to enact a $15.00 per hour minimum wage ordinance, or to require mandatory paid sick leave, or to impose any other costly burden on employers is going to have unintended state-wide impacts. For example, recent studies demonstrate that such municipal regulation can lead to increased rates of unemployment. See Aaron Yelowitz, The Labor Market Effects of Citywide Compensation Floors: Evidence from San Francisco and Other “Superstar” Cities, Employment Policies Institute (Oct., 2012) (reviewing the economic impacts of San Francisco’s heightened compensation floors—i.e., the total cost of employment when factoring in burdens imposed by local regulation).[2] Of course this much should be expected. When government imposes costly mandates on employers businesses must either raise prices on consumers or cut costs to remain afloat. Yet this economic fall-out is not a simple local affair—rather it is an issue of concern for the whole commonwealth because it affects the state’s tax-base, business climate and even public services.

To illustrate the principle further, if local regulation results in heightened unemployment rates, it will necessarily lead to strain on state-run social welfare programs and will therefore affect the state budget. What is more, when Pittsburgh enacts regulation that results in the loss of jobs, the impact will often be felt by families residing in neighboring communities. For that matter, when such local regulation prompts businesses to move operations out of state, or discourages businesses from investing in Pennsylvania, there can be no doubt that the affects are felt throughout the commonwealth. Accordingly, the General Assembly acted reasonably to protect the interests of all Pennsylvanians in prohibiting local municipalities from imposing heightened burdens on employers. 

B.     The Legislature Was Likely Concerned About Balkanization of Labor and Employment  Standards That Might Impede Economic Growth

It is likewise reasonable to assume that the General Assembly was motivated to prohibit local authorities from imposing heightened burdens on businesses out of concern that municipalities might otherwise impose conflicting standards, or might upset an intentional policy of non-regulation. Such balkanization of labor and employment standards would greatly complicate doing business in the Key Stone State, which is likely the primary reason for the Legislature’s policy choice. But in addition, state legislators may have also felt compelled to prohibit such local regulation in order to protect smaller municipalities from dominant cities that might otherwise establish de facto regional standards.

The latter would certainly be a legitimate concern for legislators representing bedroom communities surrounding major cities like Pittsburgh and Philadelphia. To be sure employers in California, Washington and other states that allow for balkanization of labor and employment standards have had serious problems with larger municipalities setting effective regional standards for minimum wage. See R. Brian Dixon and Sebastian Chilco, Minimum Wages, Maximum Challenges in 2016 (2017, 2018…), Littler (Dec. 11, 2015) (explaining the practical difficulties presented by balkanization of wage and hour law, and special difficulties presented by the fact that “local governments provide fewer interpretive materials and officials to provide guidance…”).[3]  In those states, businesses with mobile employees—e.g., repairmen, construction workers, technicians—must either (a) painstakingly calculate various hourly rates, down to the minute, for time their employees spend in different local jurisdictions; or (b) conform to the most stringent regional standard in order to avoid the administrative burden of paying varying hourly rates. So in practical terms balkanization forces companies to change their existing business models.

And one can likewise see the complications that might arise if different municipalities begin imposing different paid sick leave requirements on businesses—especially given that Pennsylvania has 2,561 separate municipalities, with 130 in Allegheny County alone.[4] Suppose for example that, in addition to Pittsburgh, other surrounding communities—Monroeville, Mt. Lebanon, McKeesport, Bridgeville—all enacted their own unique paid sick leave mandates, with each requiring different: (1) methods of accrual for paid sick leave; (2) rules for how long an employee must work to qualify for paid sick leave; (3) requirements applicable to “small business;” (4) document retention or reporting requirements; (5) requirements for when employers must allow an employee to use paid sick leave; (6) rules on whether employers can restrict use of paid sick leave; (7) caps on accrual and carry-over provisions; (8) pay-out requirements; and (9) penalties. A single employer operating in each of these cities would have to develop separate paid sick leave policies to conform to the requirements of each locality.[5] And because this might very well turn into an administrative nightmare, some employers might feel compelled to adopt a single uniform policy conforming to the most stringent of the five (hypothetical) local mandates.[6] But to offset these imposed costs, some businesses might then be forced to cut-back hours for some employees, or to implement a hiring-freeze. Others might need to downsize in order to remain in the black. Some might ultimately feel pressure to relocate operations elsewhere.   

Indeed, balkanization of labor and employment standards will predictably result in the displacement of labor—even for businesses with non-mobile workforces. Businesses may rationally choose to leave the state in search of a more favorable regulatory climate—perhaps by moving to Ohio or Texas, or even outsourcing operations internationally. Such economic dislocation is a major concern in this age of globalization—especially for ‘rust belt states.’ Indeed, as a result of improved transportation systems and the revolution in digital communications, businesses can relocate across borders easier today than ever. This only elevates concerns over how to best attract and retain business in Pennsylvania.

III.             An Amorphous “Public Health” Exception Would Swallow the Rule

A.     There is No Limiting Principle to the City’s Proffered “Public Health” Exception

There is nothing peculiar about the climate or the conditions of Pittsburgh which, as a matter of health, makes it necessary for employers to pay any given rate of wage, to provide any special leave of absence (much less paid leave), or any other benefit to their employees. State and federal law already impose requirements dictating what wages and benefits employers must provide. And the General Assembly has established a policy forbidding home rule cities, like Pittsburgh, from imposing additional requirements on employers. 42 Pa.C.S. § 2962(f). Nonetheless, Pittsburgh asserts an authority to impose its paid sick leave mandate on the theory that the General Assembly never intended to curtail the prerogative of home rule cities to regulate on matters of “public health.” But see Section 2962(c) (“A municipality shall not… [e]nact or promulgate any ordinance or regulation with respect to … health … [except as] relating to building codes…”).

This rationale must be rejected because it would justify any form of economic regulation. To be sure, one can almost inevitably draw some connection—however tenuous—between improved economic conditions and public health. For example, some studies conclude that individuals in more affluent communities live longer on average than similarly situated individuals in other communities.[7] Likewise, individuals living in poverty are more likely to develop health problems for numerous reasons, including lifestyle and dietary choices.[8] Accordingly, Pittsburgh might just as well cite these figures to justify other forms of economic regulation in the future.

If approved here, the City might next argue that its public health exception should justify a minimum wage hike in order to ameliorate public health problems caused by economic stress; after all, there might be a link between stress and certain health conditions. Or the City might just as well pass an ordinance requiring employers to provide longer breaks and more overtime than is required by state and federal law by citing public health concerns over workplace fatigue. Pittsburgh might even seek to enact an ordinance requiring employers to pay employees double-time if they should change their employee’s work schedule without adequate notice because one can imagine public health benefits in “predictive scheduling.”[9]

Or Pittsburgh might choose to follow the lead of Jersey City, New Jersey in requiring employers to provide 30 hours of work each week, so that all employees will qualify for mandated large employer-sponsored health insurance coverage under the Affordable Care Act (ACA). See Terrence McDonald, Jersey City Proposes Minimum 30-Hour Workweeks for Some Private Workers, The Jersey Journal (Apr. 26, 2016).[10] But, why not stop there? Pittsburgh might just as well require small businesses—that are exempt from the ACA’s Employer Mandate—to provide health insurance, or to require large employers to provide more generous coverage than is required by the ACA.[11]

If all that is required is for municipalities to establish a ‘rational connection’ to public health, then there are no meaningful limits on home rule powers. Any regulation can pass muster under a rational basis like test of the sort Pittsburgh urges here.[12] For this reason, the Municipalities Act must be construed so as to foreclose economic regulation of business—regardless of any posited health concern. This is especially appropriate in the context of labor and employment issues because state and federal lawmakers have already weighed the various social, economic, and health considerations at issue.

B.     Any Exception for Public Health Regulation Should be Construed Narrowly to Allow only For Regulation of Physical Conditions

In light of the General Assembly’s long established policy of uniform business regulation, this Court should narrowly construe otherwise open-ended statutory grants of home rule authority. Hous. Auth. of Cty. of Chester v. Pennsylvania State Civil Serv. Comm’n, 556 Pa. 621, 640 (1999) (“It is axiomatic that in determining legislative intent, all sections of a statute must be read together and in conjunction with each other, and construed with reference to the entire statute.”). To be sure, the canons of construction require this approach because statutes must be construed in harmony to the extent possible. Hous. Auth. of Cty. of Chester, 556 Pa. at 641 (“A conflict between various statutes or parts thereof is to be avoided and, if possible, the apparently conflicting provisions must be construed together with the specific provisions prevailing over the general ones.”). Accordingly, even if Pittsburgh maintains some residuary authority to address public health through municipal regulation, that authority should not be understood as so broad as to justify direct regulation of business.

Here the City invokes both the Second Class City Code and the Disease Prevention and Control Law to justify its paid sick leave mandate, but neither code section is applicable. The Second Class City Code applies only to Second Class Cities—not to Home Rule Municipalities. See Cnty of Delaware v. Township of Middletown, 511 A.2d 811, 813 (Pa. 1986). And the Disease Prevention and Control Law only authorizes municipal regulation for cities that have established “boards or departments of health,” or for counties that have established a county department of health. 35 P.S. § 521.16(c).

Yet even assuming that Pittsburgh retains a general power to regulate on matters of health, it is only proper to understand that authority to be cabined so as to allow for regulation only to ameliorate those peculiar local conditions that may affect public health. See 53 Pa.C.S.A. § 2962(c)(4) (generally prohibiting “regulation with respect to … health,” except for “enact[ment] and enforce[ment] of ordinances relating to building codes or any other safety, sanitation or health regulations pertaining thereto.”) (emphasis added). Specifically, such authorization should be understood to allow for regulation to eradicate public nuisances, and or to enforce zoning restrictions for the protection of public health because in those cases the subject of regulation is a peculiar local condition. In other words, full effect may be given both to the Municipalities Act and the authorization for regulation of public health by allowing for regulation of land and such physical conditions, as opposed to direct regulation of economic actors. This is why the Supreme Court upheld municipal regulation limiting logging for the prevention of flooding and landslides: the subject of the regulation was the land, not the business. See Taylor v. Harmony Twp., 851 A.2d 1020 (Pa. Commw. Ct. 2004). Yet by that measure Pittsburgh’s mandatory paid sick leave ordinance must be struck down because it targets employers—not any peculiar local condition.

Conclusion

For the forgoing reasons, the judgment of the Court of Common Pleas should be affirmed.

 


[1] In many states home rule powers are conferred by a general grant of authority to enact law governing matters of “local” or “municipal” concern, with the understanding that matters of statewide concern are beyond the reach of municipal regulation. The difficulty is that courts in these states must then endeavor to demarcate a line between matters of truly local concern and issues of broader concern to the state. By contrast, the Pennsylvania Constitution vests home rule municipalities with authority to regulate on any matter except where the General Assembly has enacted law to prohibit municipal regulation.  

[4] See List of Municipalities in Pennsylvania, Wikipedia, available at https://en.wikipedia.org/wiki/List_of_municipalities_in_Pennsylvania (last visited 5/4/16).

[5] One cannot overstate how complicated things would become if different localities began imposing different paid sick leave requirements. Suppose Monroeville choose to follow California’s model for paid sick leave. In that case employers operating in both cities would have to understand the complexities of both Pittsburgh’s ordinance and that of California. In some respects Pittsburgh’s ordinance would be more demanding; in other respects Monroeville would be burdensome:

Whereas Pittsburgh requires an accrual rate of one hour paid sick leave for every 35 worked, Monroeville would require employers to choose between providing an up-front accrual of 24 hours each year, or granting one hour for every 30 worked. California Paid Sick Leave: Frequently Asked Questions, CA Dept. of Industrial Relations, available at http://www.dir.ca.gov/dlse/paid_sick_leave.htmv (last visited 5/4/16) (“CA Sick Leave Guidance.”). Whereas Pittsburgh does not place restrictions on which employees qualify for paid sick leave, Monroeville would require that the employee work a requisite number of hours to qualify. Id. Whereas Pittsburgh imposes different paid leave requirements depending on the size of the company, Monroeville would not allow any small business exception. Id. Whereas Pittsburgh says that it imposes no document retention requirement, Monroeville would affirmatively require employers to provide annual notices to employees as to how paid sick leave will be accrued, as well as statements of paid sick leave balances on paystubs. Id. Whereas Pittsburgh allows some employers to cap accrual at 24 hours, and others at 40, Monroeville would require continual accrual up to 48 hours without exception. Id. Whereas Pittsburgh’s ordinance is silent on whether employers may impose rules on the use of paid sick leave, Monroeville’s ordinance would expressly (a) allow employers to impose rules capping use of paid sick leave at 24 hours in single-year, and requiring employees to take paid sick leave in reasonable minimum increments, but (b) would prohibit employers from requiring employees to find replacements for their shifts. Id. Additionally, Monroeville would allow employees to use paid sick leave for reasons unauthorized in Pittsburgh. And further complicating matters, Monroeville would impose different rules about how many accrued hours can roll-over year-to-year, and whether the employer has an obligation to pay-out for accrued sick-leave at termination of employment. Id.

[6] Despite best efforts to offer guidance and educational materials, NFIB Small Business Legal Center continues to receive many calls from small business owners throughout California expressing confusion over how to comply with a statewide paid sick leave law. See What Do California Employers Need to Know About Mandatory Paid Sick Leave?, National Federation of Independent Business (June 24, 2015), available at https://www.nfib.com/article/what-do-california-employers-need-to-know-about-mandatory-paid-sick-leave-69908/ (last visited 5/4/16). And compliance is all the more difficult and confusing for employers in California since a handful of cities impose their own conflicting paid sick leave ordinances. See Current Sick Days Laws, National Partnership for Women & Families, available at http://www.paidsickdays.org/research-resources/current-sick-days-laws.html (last visited 5/4/16).

[7]Jim Zarroli, Life Expectancy Study: It’s Not Just What You Make, It’s Where You Live, Morning Edition, National Public Radio (Apr. 11, 2016), available online at  http://www.npr.org/sections/thetwo-way/2016/04/11/473749157/its-not-just-what-you-make-its-where-you-live-says-study-on-life-expectancy (last visited on 5/4/16).

[8] Claire Conway, Poor Health: When Poverty Becomes Disease, University of California San Francisco (Jan. 6, 2016), available online at https://www.ucsf.edu/news/2016/01/401251/poor-health (last visited 5/4/16).

[9] See Cal. Sen. Connie M. Leyva, The Reliable Scheduling Act Factsheet, available at (claiming that predictive scheduling regulation is necessary because “[e]rratic schedules make it more difficult for workers to make medical appointments, and leads to “fatigue and stress that affects family life and health outcomes…”).

[11] The ACA requires companies with 50 or more full-time employees or full-time equivalents to provide “affordable health insurance.” PPACA Employer Mandate Information, National Federation of Independent Business, available online at https://www.nfib.com/cribsheets/employer-mandate/ (last visited 5/4/16). The ACA defines a full-time employee to an employee working 30 hours per week, and defines “affordable health insurance” as an employer-sponsored plan costing no more than 9.5% of the employee’s taxable income. Id. Thus, the ACA only requires “large employers” to provide affordable health insurance to employees working 30 hours or more per week. But if Pittsburgh can do anything in the name of “public health,” then the City could lower these thresholds so as to require all employers to provide affordable health insurance, or by redefining what is affordable for the purpose of local law, or by requiring employers to provide health coverage options even to part-time employees.

[12] In addition to dictating heightened labor and employment standards the City’s open-ended “public health” exception would allow essentially any form of regulation of goods and services as well—notwithstanding preexisting regulatory state or federal standards, or state/federal policy of non-regulation. For example, Pittsburgh could cite “public health” concerns in requiring businesses to pay a special tax or fee for the privilege of selling food products that city officials believe to be unhealthy. Or the City might invoke a “public health” rational in requiring retailers to post conspicuous warnings about their products which are not required by state or federal law. 

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