WLP Testified in Opposition to HB 861, Preemption of Local Labor Protections — WLP Blog

The conservative, right-wing, anti-labor General Assembly in Pennsylvania is once again attempting to take away local control over their local labor ordinances. They want to preempt all labor protections that local municipalities have enacted since 2015.  This includes paid sick leave as well as all local anti-discrimination ordinances that go beyond protections provided in state law.  This would include protections for LGBTQIA people, marital and familial status in general (other than familial status protections in housing).  The current bill being debated is HB 861, also known as the “Preemption of Local Labor Protections.” This morning, the Women’s Law Project testified before the House Labor and Industry Committee.  Below is there blog summarizing this testimony.

The bill was not voted on today.  So you have two chances in the House to stop this bill. First, contact members of the House Labor and Industry Committee and ask them to vote no during the committee vote. Second, you can also contact your Representative to raise your voice in opposition to this bill.  You can find your legislator here.

So take a couple of minutes, read the WLP blog on this issue, and then make your calls/emails. Thank you!

 

via WLP Testified in Opposition to HB 861, Preemption of Local Labor Protections — WLP Blog

Today, WLP Staff Attorney Amal M. Bass testified in opposition to House Bill 861(preemption of local laws protecting workers) before the Pennsylvania House Labor & Industry Committee. The Women’s Law Project strongly opposes HB 861, which is sponsored by Rep. Seth Groves of York County.

You can read Amal’s testimony in full here.

What is Preemption?

Preemption bills like HB 861 prohibit local governments from passing local ordinances to meet the needs and reflect the values of their own communities.

HB861 Would be Retroactive

HB 861 is even worse than a typical state preemption bill because it includes a retroactivity clause designed to strip away local protections that have already been implemented, including protections for LGBTQ workers and paid sick days ordinances that provide protections for victims of sexual assault and domestic violence.

HB 861 Would Nullify a Broad Range of Workplace Protections

The way it is written, HB 861 could apply to almost any local government’s attempt to protect its own workers.

HB 861 Targets Paid Sick Days in Philadelphia & Pittsburgh   

HB 861 would retroactively strip hundreds of thousands of Pennsylvania workers of their right to paid sick days.

The Women’s Law Project testified in support of Philadelphia’s paid sick days ordinance, which City Council passed and the Mayor signed on February 12, 2015 after a thorough, multi-year process that drew upon the recommendations of a Task Force representing many perspectives on the issue, including employers.  The local law that resulted from this process provides forty hours of earned paid sick time in a calendar year for workers of employers with ten or more employees, and it provides unpaid sick time to workers of smaller employers.

Philadelphia’s paid sick days ordinance also provides paid leave to employees whose absence is related to domestic violence, sexual assault, or stalking. This ordinance is vital for the health and well-being of women and their families in Philadelphia and the surrounding counties, giving paid sick leave to more than 200,000 workers.

In 2015, Pittsburgh joined Philadelphia in recognizing these benefits when it used its home rule authority and its authority to pass public health laws to pass a modest earned paid sick leave ordinance. The Women’s Law Project and attorneys from the Partnership for Working Families filed a friend-of-the-court brief in support of Pittsburgh’s paid sick days law on behalf of fifty-one organizations committed to women’s health and safety.

However, the Pennsylvania Restaurant and Lodging Association has challenged this local law, halting its implementation, in a lawsuit currently before the Pennsylvania Supreme Court.

This is typical in that special-interest groups often seek to block and stall protections from workers so that they may profit from the lack of protections. That doesn’t mean lawmakers representing hard-working constituents should allow them to succeed.

HB 861 is a Direct Attack on LBGTQ Pennsylvanians

House Bill 861 also affects discrimination laws. More than forty municipalities in Pennsylvania have local ordinances prohibiting discrimination on the basis of many protected characteristics, including sexual orientation, which our employment laws at the state and federal levels, Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act, do not explicitly cover.

HB 861 is equipped with a retroactive provision that could strip protections for LGBTQ workers passed places such as Ambler Borough, Bridgeport Borough, Carlisle, Dickson City, Mount Lebanon, Kennett Square Borough, Narberth Borough, Phoenixville, Royersford, Stroudsburg, and Wilkes-Barre. All of these municipalities passed anti-discrimination laws after 2015, and therefore could trigger HB 861’s retroactive preemption. The bill could also prohibit every municipality in the state from altering or adding to their antidiscrimination provisions in the future.

Local Governments Pass Laws Protecting Workers Because the State Fails to Do So

Pennsylvania is a patchwork of worker protections in part due to the failure of the Pennsylvania Legislature to pass meaningful worker protections, despite overwhelming evidence of the need to do so. HB 861 would undo and prohibit progress at the local level, taking rights away from the citizens of Pennsylvania without filling the void with statewide legislation.

Absurdly, an argument sometimes made for preemption is that Pennsylvania’s patchwork of protections is confusing. If Pennsylvania’s patchwork of protections is a problem, it should be solved by ensuring all Pennsylvania workers are treated fairly with state-level protections, not state-level efforts to nullify local protections.

The Women’s Law Project is a public interest law center in Pennsylvania devoted to advancing the rights of women and girls.

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Update on Pittsburgh’s Domestic Violence Policies

Last week I wrote a blog about an attempt by Pittsburgh City Councilman Ricky Burgess  to backtrack on the city’s domestic violence policies.

There has been a week of outrage among advocates for the back-handed attempt to eliminate the police-perpetrated domestic violence ordinance that was created in 2007.

Yesterday, three people, including former City Council President Douglas Shields and my friend Audrey Glickman (both of whom were quoted in last Friday’s blog), spoke out in committee to not backtrack.  Then today, advocates came out in mass to oppose the commingling of police-perpetrated domestic violence with police responses to domestic violence in the community.

Most of the advocates who spoke were given three minutes to express their concerns. Jeanne Clark (candidate for Pittsburgh City Council, long-time NOW member and a women’s rights advocate), Shirl Regan (Executive Director of Women’s Center & Shelter of Greater Pittsburgh), Beth Pittinger (Executive Director of Pittsburgh’s Citizen Police Review Board), and Maryellen Deckard (State Campaign and Development Director for  Action United—a membership organization of low and moderate income Pennsylvanians that employed Ka’Sandra Wade before her death—and the convener of ANEW WOMEN—a group of women who have experienced domestic abuse and want to work for change) were given seats at the Council table to discuss the issues in more depth.

Following the concerns raised about domestic violence and with Jeanne’s call for a public hearing, Pittsburgh City Council quashed the attempt to eliminate the police-perpetrated domestic violence ordinance.  They placed a hold on the proposed Domestic Violence Task Force ordinance until after a post-agenda hearing is held.  And they passed the resolution that allows funds to be expended to start the Maryland Lethality Assessment Training program.

The final vote on this resolution and the amendments made in committee today will be finalized on Tuesday, May 14 during the official business meeting of city Council.   Here’s a news article on what happened, along with some quotes.

After the Council met and voted down Burgess’ proposal to eliminate the zero-tolerance policy, Councilman Bill Peduto sent me the following email:

Joanne –

I wanted to let you know that Councilwoman [Natalia] Rudiak, Councilman [Bruce] Kraus and I were able to lobby Council to successfully pass the Police-response DV bills today while stopping the amendments offered by Reverend Burgess that would have weakened the Police-perpetrated DV legislation we worked so hard on back in 2007.

It is unfortunate that politics entered into this debate at all but I am thankful for the many women and men who wrote in to Council and came to Council Chambers today.  With your help we were able to stop the games and pass this important legislation to protect victims of domestic violence.  Thank you.

Thanks Council members Peduto, Rudiak, and Kraus for your leadership on this issue.  Additional thanks to Councilman Danielle Lavelle for your comments and Councilman Corey O’Connor for your clarification on the differences between a resolution and an ordinance.

A final decision on the Domestic Violence Task Force ordinance will occur only after the post-agenda hearing and public hearing are held.

Thanks all for all of your work.

Picture of Joanne Tosti-Vasey standing with sign that says "I AM Ending Violence"

Joanne Tosti-Vasey “Refusing to be Silent” and calling for an end to gender-based violence

Pittsburgh: Do NOT Backtrack on Domestic Violence Protections

According to the Pittsburgh Post-Gazette, a debate erupted in the Pittsburgh City Council meeting on  Wednesday, May 1, 2013 when Councilman Ricky Burgess presented a proposal to throw out the ordinance that established a zero tolerance policy in the city code for police-perpetrated domestic violence.  This was a last-minute amendment to a package of bills that was designed to improve police handling of calls received about domestic violence within the city.

After a two-hour long, heated debate, Council seems to have separated the two issues – domestic violence within the community and the police perpetrated domestic violence policy.  They will continue the discussion in their meeting on Wednesday, May 8.

What is going on?  Why would Pittsburgh even think of backtracking on the 2007 ordinance that was created to ensure that individuals with a history of domestic violence were not hired, be promoted, nor be allowed to continue employment after committing domestic violence while employed or being considered for employment within the police department? As explained in Chapter116, Department of Public Safety, Section III  of this ordinance, the purpose of the police-perpetrated domestic policy is, in part, to

“delineate a position of zero tolerance by the Bureau. It is imperative to the integrity of the profession of policing and the sense of trust communities have in their local law enforcement agencies that leaders, through the adoption of clear policies, make a definitive statement that domestic violence will not be tolerated.”

So if you want the community to trust your police and believe in their integrity, why would you throw out this ordinance?  And why would you attempt to do this when the intent of the proposal was to improve how police deal with cases of violence in the community?

I believe that there are three issues embedded within this debate.  First, Pittsburgh (and many other communities throughout the country) needs to ensure that cases of domestic violence, stalking, and sexual assault are appropriately handled whenever a call comes into 911 emergency services. Second, there should be no backtracking on the zero-tolerance ordinance.  And third, these two issues are separate issues that should not and cannot constitutionally be commingled. Here’s my take on these three issues.

Police Handling of Domestic Violence Calls

Why this is an issue in Pittsburgh

On December 31, 2012, according to many reports (including this one), Pittsburgh’s 911 services received a cell phone call from Ka’Sandra Wade asking for police to come to her home. The call was truncated.  The officers went, some 10 minutes later after they were done with another call and then called in to determine what was next.  A man would not let them into the door, but through a window told the officers that everything was all right. The officers claim that since the phone call was not from a land line, they did not know whether Ka’Sandra was home, even though she requested officers to come to her home.  They claim that they did not know it was a call about violence.  They lurked about for several more minutes, looking around the house, but then left.

The Officers never spoke directly to Ms. Wade, taking the word of the man at the door that refused to let them in to talk to Ka’Sandra.  She was found dead the next day.  When her boyfriend was confronted in his suburban residence, he said on a note that the officers could have saved Ka’Sandra, and he killed himself.

The Model Domestic Violence Community Policing Policy

According to the model policy by the International Association of Chiefs of Police on responding to potential domestic violence calls, 911 communications centers and police officers should

  1. Assign a priority response to all domestic ­violence calls, whether or not the assailant is known to be on the premises;

  2. Keep the caller on the telephone if the caller is a victim or witness to a domestic violence incident in progress in order to relay ongoing information provided by the caller to the responding officers and remain aware of ­victim’s safety;

  3. Not cancel the original call for service even if a subsequent request to cancel the original call is received; and

  4. Make contact with all residents of the house, all potential witnesses, victims, and perpetrators [emphasis added]….In evaluating the information, officers should take into account the credibility of the persons ­supplying the information and whether there is a reasonable basis for believing the information.

Pittsburgh has not, to my knowledge, instituted this model policy.  As reported in the press, none of these basic protocol actions were taken in this case.  Rather than immediately dispatching police to the scene, the police delayed their response for ten minutes.  They also took the word of only one resident – the man who refused to let them in – rather than talking to the original caller.  911 knew it was a woman that called, not a man. And yet they used his statement to cancel the request for service.  Which may have resulted in Ka’Sandra’s death after they left.  Note, she may have been dead already; however it is presumed that she was murdered after the police left based on the suicide note left stating that the officers could have saved her life.

Actions Taken Since January

People in the community quickly called for action to improve first responders’ behavior.  At the Action United vigil held for Ka’Sandra after her death, one of the speakers said that Action United would convene a group to craft policy to change how first responders act in cases of domestic violence.  That was on a Saturday.  The following Monday, Pittsburgh City Councilman Ricky Burgess announced that he would convene a “group of professionals” to make recommendations to Council on how to handle these types of cases.  The result of this announcement was a series of closed-door, by-invitation-only meetings that resulted in two specific strategies to address the issue:

  1. Instituting the Maryland Lethality Assessment as a tool for police to use when responding to calls that could include issues of domestic violence and
  2. Creating a Domestic Violence Advisory Board (aka “task force’) as described in the Violence Against Women Act. This board would include representatives from organizations and institutions serving the needs of domestic violence victims to “provide policy guidance and make recommendations to the Public Safety Department [includes the bureaus of Police, Fire, EMS, Emergency Management, Building Inspection and Animal Care & Control] about best practices for law enforcement response to Domestic Violence.”  

Although this Domestic Violence Advisory Board sounds like it might help,  some advocates are not clear that creating a new board is necessory or appropriate.  There currently is a Citizen Police Review Board that reviews and makes recommendations on how to improve police services within Pittsburgh. There is also a Domestic Violence Committee that deals with all employees. So if this new board is created, would it be duplicating the oversight currently held by these other boards or not? Or is the problem not that there is no oversight, but that the police have ignored recommendations by these oversight boards that are already in place?

Although many people and most of the community’s advocates for ending domestic violence were left out of these discussions, these two strategies crafted into two ordinances (see here and here) and one resolution might help address some of what happened on December 31, 2013.

These bills were part of Wednesday’s Council meeting and will be discussed again next week.  A broader discussion and eventual passage of these ordinances could help ensure that cases of domestic violence, stalking, and sexual assault are appropriately handled whenever a call comes into 911 emergency services.

Don’t Backtrack

At this Council meeting on May 1, Councilman Ricky Burgess caused a real ruckus when he proposed and presented a last minute proposal to throw out the ordinance that established a zero tolerance policy in the city code for police-perpetrated domestic violence.

As the meeting was beginning, Councilman Burgess distributed a proposed amendment to one piece of legislation containing two paragraphs that referenced a part of what the Working Group had discussed last Friday.  The rest of the pages were an Amendment by Substitution of the portion of the City Code that would gut the Police/Officer-Involved Domestic Violence legislation passed in 2007. 

My girlfriend, Audrey Glickman, posted a couple of comments on the Pittsburgh Post-Gazette article regarding the debate and ruckus that occurred in this city council meeting.  Audrey was the person in 2007 who volunteered and coordinated the group of advocates that worked with former Councilman Doug Shields to craft the zero tolerance policy.  Here’s what she said about the sudden and unexpected back-tracking proposed by Councilman Burgess (I’m combining two of her comments so that you can see the history of the zero-tolerance policy):

This set of bills (and especially the amendment dunked in at the last minute with no knowledge or prior discussion among other Council persons) does not really address the details surrounding the tragedy attending Ka’Sandra Wade, may she rest in peace.  The response of the police – their not suspecting DV immediately, nor apparently even thinking of it, is what needs to be addressed.  The commission of DV by Pittsburgh’s Police Officers and the law that since 2007 has covered it well, and could save potential victims and prevent future lawsuits against the City, should not be up for discussion at all, much less as an amendment by substitution tossed on the Council table like so much trash.

There should be zero tolerance for all City employees committing domestic violence.  But the City Solicitor’s inability (as stated at the Council table) to defend having “zero tolerance” in the Police legislation – in a state in which, according to the representative from the Solicitor’s Office sitting at the Council table today, cities are allowed by law to hold police to a higher standard – is not a reason to eliminate zero tolerance from the Police/DV legislation [emphasis added].

The pieces of legislation that were supposed to be on the table would (1) enact a Lethality Assessment as in Maryland, to help discern issues and teach Police;  (2) fund that effort;  and (3) create a council to oversee DV.  None of that has anything to do with the legislation passed in 2007.

The 2007 legislation serves to prevent the heads of our Police force from getting away with committing DV by virtue of their position; serves to protect our City from a lawsuit such as the one Tacoma, Washington, faced, and had to pay $16 million to the family of the late wife of their police chief; and serves to define the specific policy – in detail – that the Bureau of Police must keep on the books.

The law (already in the City Code, passed in 2007) concerning police *committing* domestic violence was based on a model policy by the IACP [International Association of Chiefs of Police], was hammered out by a huge working group who did not always agree with each other, and when passed it was praised from coast to coast.

The original [2007] legislation was crafted through discussion among dozens of individuals. We had input from national experts and local service providers of all stripes. Everyone researched for months, years even. Emasculating this law would serve no one well.

Creating a political and divisive issue out of a law that was duly passed in 2007 and lauded from coast to coast is pointless and untenable.  Domestic violence is not a political football.  Some of the Councilpersons who spoke at the table referred to it as a women’s issue, but in truth DV is committed against women and men, the young and the old, the suspecting and the unsuspecting.

Council should leave the legislation already on the books alone, and find some way to teach the Police to consider potential DV when they respond to a call.

Audrey is right on the mark.  The zero-tolerance policy is based on model legislation created by Chiefs of Police across the country. It is good legislation. Don’t backtrack now.

Commingling Two Separate Issues

My final concern about what happened is that this last minute amendment to insert police-perpetrated domestic violence into issues concerning how officers respond to domestic violence calls is a commingling of two separate issues.  Audrey  put it this way in her Post-Gazette comment:

[Council ended the discussion of the bills with a] lousy one-week hold when large discussions and public hearings and real research are warranted to hash out whether there is any value at all to that poison-pill portion, which again had nothing to do with the original bills.

Nothing. It has nothing to do with the subject of the original bills. The original bills concerned officers *responding to* domestic violence calls. The poison pill concerned police officers *committing* domestic violence.

There is a world of difference. The former is a more prevalent issue and is the one at hand; the latter is a more delicate issue, and has already been successfully addressed [in 2007].

In addition, the introduction of police-perpetrated violence into a bill on police response through substitution, particularly at the last minute, may be unconstitutional according to the PA Constitution.  I am basing this on a Supreme Court opinion from 2008 when they overturned the expansion of Pennsylvania’s Ethnic Intimidation (Hate Crimes) Act.  Here’s what went down in that case.

In 2002, the Pennsylvania General Assembly updated its statutes to define ethnic intimidation as committing a crime “with malicious intention toward the actual or perceived race, color, religion, national origin, ancestry, mental or physical disability, sexual orientation, gender or gender identity of another individual or group of individuals (Pennsylvania Human Relations Commission, 2003; bolded items were added in the 2002 legislation).” However, the Commonwealth Court of Pennsylvania in 2007 overturned the expansion in a case called Marcavage v. Rendell. They opined that  the final version of the bill, which initially dealt with the crime of crop destruction, changed its original purpose during the amendment process at the last minute.

The Commonwealth Court stated and the Pennsylvania Supreme Court affirmed in 2008 that this law was enacted in violation of Article III, Sections 1, 2, 3, and 4 of the Pennsylvania Constitution. As a result, hate-crime protections for gender, gender identity, sexual orientation, and disability were eliminated from the state’s hate crimes law.

This hate crimes law started off as a crimes bill dealing with a crime of crop destruction.  A crime, but in a different area.  In Pittsburgh, the initial intent and focus of the bills in Pittsburgh was responding to domestic violence.  The substitute proposed by Councilman Burgess focuses on a different area of violence – police or officer-initiated domestic violence.  Two different issues.  A world of difference. And I suspect, if it passes next week, could successfully be argued in court to have been unconstitutionally redacted under the first three sections of Article III of the Pennsylvania Constitution (Article III, Section 4 deals with bills within the General Assembly and is not germane to local legislation).

Actions Needed

The Working Group convened in January, although not completely open and transparent, did came up with two strategies focusing on how police should respond to cases of domestic violence.

Due the confusion that ensued during the public session on May 1, it is unclear whether the proposed amendment was amended in Council to be reduced only to the two paragraphs referring to the work of the Working Group or if the amendment by substitution is still on the table.  Removing the substitute amendment had been the intention of Councilman O’Connor during the debate; but it is believed he withdrew the amendment in the confusion that ensued.

One week may be enough time to discuss finalizing the legislation that was originally discussed by the Working Group.  It is nowhere near enough time to discuss deleting a good piece of legislation—the police-perpetrated domestic violence ordinance—from the City Code, nor should such a discussion be endeavored.  That law has nothing at all to do with what happened to Ka’Sandra Wade.  Weakening that law we would do nothing but tarnish Ka’Sandra’s memory.

On Wednesday, May 8, 2013, these bills will be taken up again in Committee. There will be public comment at the opening of the legislative and standing committee meetings on  Wednesday. These committee meetings officially start at 10:00 AM (but they do sometimes begin late). You should show up in droves.  People can have up to three minutes each to comment.  Come, stand up and be heard.  Tell Council

  1. Don’t backtrack on the 2007 police-perpetrated/officer-initiated domestic violence ordinance. It has nothing to do with the subject of the original bills and could be an unconstitutional overturn of the ordinance as described above;
  2. Institute the Maryland Lethality Assessment tool; and
  3. Discuss how and if the creation of the Domestic Violence Advisory Board would improve police response to domestic violence.  Duplication of duties and effort by multiple oversight boards could muddy rather than clear the waters. Only if it becomes clear that this new board would help should this proposal be enacted.

It is incumbent on all concerned to be vigilant.  Don’t backtrack.  But do do the right thing and make sure that police handle cases of domestic violence properly so that there are no more cases like that of Ka’Sandra Wade ever happen again.

Picture of Joanne Tosti-Vasey standing with sign that says "I AM Ending Violence"

Joanne Tosti-Vasey “Refusing to be Silent” and calling for an end to all forms of violence, including domestic violence

Additional Info After Posting This Blog

After I posted this blog, I had a phone and email conversation with Doug Shields.

He is the former President of Pittsburgh City Council who sponsored of the 2007 ordinance on police-perpetrated domestic violence.  He asked if I would continue spreading the word about what’s going down in Pittsburgh regarding domestic violence protections.  Here is a copy of his email call for action:

“As you know, we all fought hard and long to enact an Ordinance that began to address issues related to police officers and domestic violence.  This came about due to the Mayor’s promotion of three officers who had significant issues related to domestic violence.

Over the past few months, a task force, formed to shape legislation that addresses the lack of clear protocols in responding to a domestic violence call, worked to provide an appropriate response.  As a result, the Council was about to enact the so-called “Maryland Protocol” this week.

Numerous people who had worked hard to get this legislation to the Council table were shocked to find upon introduction, the sponsor, Councilman Burgess, had without notice, took the opportunity to delete the entire section of the Ordinance that was enacted in December of 2011.

When the bill passed finally in 2007, I had tears in my eyes.  It was the only time that ever occurred.

Now this.  Blog by Joanne Tosti-Vasey (See: https://civilrightsadvocacy.net/2013/05/03/pittsburgh-no-dv-backtracking/)

I write to ask you for help to have a strong presence at next Tuesday’s and Wednesday’s Council meeting to utilize the public comment portion of the meeting to condemn this action by Councilman Burgess and to show strong support for the law we need and fought so hard to get.  

Unfortunately, your voice is needed again to defend that which we all worked on for so long.

The members who defended the bill were:  Bill Peduto, Patrick Dowd, Corey O’Connor, Natalia Rudiak and Bruce Kraus.

Those who joined with Mr. Burgess were, President Darlene Harris, Daniel Lavelle, and Theresa Kail-Smith.

Well worth watching this Council meeting, which repeats on air Sunday at 10:00 and 7:00 (Comcast City Channel 13), and which will soon be posted on line at the City’s Legislative Information Center.

Those who cannot be there on Tuesday or Wednesday at 10 AM are encouraged to  email or call the Council to convey their support for the Ordinance.  

Here is the link:    http://pittsburghpa.gov/council/

Here are the contacts for those who were ready to repeal the Ordinance.

Thank you for your anticipated cooperation in this matter.  Please also share this missive with others who would be interested in this issue.

Douglas Shields

Former President of Pittsburgh City Council

Prime sponsor of the Police & Domestic Violence Ordinance”