Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
UPDATED November 11, 2022: Known results of the ballot measures discussed in this Insight are indicated below.
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In addition to the laws enacted by state and local legislatures, there are proposed measures on the ballot next week that may also impact the workplace. Some of these key ballot initiatives are discussed below.
Marijuana and Other Drugs
Update: Voters approved the measures in Missouri, Maryland, and Colorado. The measures in South Dakota, North Dakota, and Arkansas did not pass.
According to the National Conference of State Legislatures, as of May 2022, 19 states1 and the District of Columbia have legalized the adult recreational use of marijuana. Next week, voters in five more states, Arkansas, Maryland, Missouri, North Dakota, and South Dakota, will decide whether to legalize the adult possession and use of marijuana.2 Each of these proposed laws may impact employer policies in different ways.
The Arkansas ballot initiative expressly provides that it does not restrict employers from establishing policies restricting the use of cannabis in the workplace. Even more broadly, the South Dakota ballot initiative would not “[r]equire that an employer permit or accommodate an employee to engage in conduct allowed by this chapter” or “[a]ffect an employer’s ability to restrict the use of marijuana by employees.” Other initiatives include a referendum amending Maryland’s Constitution which would authorize adults to use and possess marijuana and direct the Maryland General Assembly to pass laws to “provide for the use, distribution, possession, regulation, and taxation of cannabis within the state,” commencing July 1, 2023.
The proposed law on the ballot in Missouri prohibits employers from discriminating against a person in hiring, termination, or any terms and conditions of employment for any of the following: having a medical marijuana identification card; lawful use of marijuana outside of the workplace during nonworking hours; or for a positive marijuana drug test, unless a failure to do so would cause an employer to lose a monetary or licensing-related benefit under federal law. Under the law, employers can discipline or terminate an employee for being under the influence of marijuana on the premises of the place of employment or during the hours of employment. These provisions would not apply to employees in positions where the legal use of marijuana “affects in any manner a person’s ability to perform job-related responsibilities, or the safety of others, or conflicts with a bona fide occupational qualification that is reasonably related to the person’s employment.”
Similar to the proposed Missouri law, North Dakota’s ballot initiative would expressly permit employers to discipline or terminate an employee for possessing or consuming cannabis products in the workplace or for working while under the influence of cannabis. Employers would also be permitted to conduct drug and alcohol testing and adopt “a reasonable zero tolerance” or drug-free workplace policy, or any employment policy concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call, as long as the policy is applied in a nondiscriminatory manner. The proposed law further provides that an employer may consider an employee to be impaired or under the influence of cannabis if:
the employer has a good-faith belief that an employee manifests specific, articulable symptoms while working which decrease or lessen the employee's performance of the duties or tasks of the employee's job position, including symptoms of the employee's speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery; disregard for the safety of the employee or others, or involvement in any accident that results in serious damage to equipment or property; disruption of a production or manufacturing process; or carelessness that results in any injury to the employee or others.
Yet, employers are obligated to provide employees who are disciplined for being under the influence of or impaired by cannabis “a reasonable opportunity to contest the basis for the determination.”
Colorado, which legalized adult use of marijuana in 2012, now has a ballot initiative, Proposition 122, that would legalize the adult use and possession of “natural medicine,” defined as the following substances: psilocybin and psilocin, the psychoactive compounds in “magic mushrooms,” and other natural psychedelic drugs including dimethyltryptamine (DMT), ibogaine and mescaline not derived from peyote. The proposed law would not require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation or growing of any of these substances in the workplace but does not provide any further guidance. If passed, the law would go into effect in June 2026.
Tip Credit and Minimum Wage Increases
Update: DC voters approved Initiative 82; Nebraska Initiative 433 was approved; Nevada Question 2 is projected to pass, but the results are not yet official; the Tukwila, Washington ballot proposal passed; the Portland, ME Question D measure failed.
Elimination of the “tip credit” for tipped employees, such as restaurant servers, nail salon workers, and valets, is on the ballot in the District of Columbia. Initiative 82, if approved, would change current law, which allows employers to take a credit for tips received by workers to satisfy the D.C. minimum wage requirements. The tip credit would gradually be phased out over a four-year period until 2027 when the mandatory base wage for tipped employees would equal D.C.’s minimum wage for all other employees. Tips would continue to be in addition to the statutory minimum hourly wage, currently $16.10 per hour, indexed to inflation. If this feels like déjà vu, it is. In 2018, voters approved a similar ballot initiative, but the D.C. Council repealed it. Based on interviews with Council members, it seems unlikely that this year’s ballot initiative will be repealed if passed by voters.3
Voters in Portland, Maine will also vote on an initiative to gradually eliminate tip credits. Question D, “An Act to Eliminate the Sub-Minimum Wage, Increase the Minimum Wage and Strengthen Protections for Workers,”4 would phase out tip credits over a two-year period to bring the wages of tipped employees up to the level of the minimum wage for non-tipped employees. Over the same period, the bill would increase the minimum wage in Portland to $18.00 per hour. In addition, the initiative would also provide an $18 minimum wage for workers currently not receiving the minimum wage, including taxi drivers and other ride-sharing services, personal shoppers, and delivery drivers who would be considered "employees" under the ordinance and therefore subject to the same rate.
Ballot initiatives in Nebraska and Nevada would also increase the minimum wage. If the ballot measure passes in Nebraska, the minimum wage would increase to $10.50 per hour beginning January 1, 2023, with yearly increases until the minimum wage rate reaches $15.00 per hour beginning January 1, 2026. Thereafter the minimum wage would increase annually as measured by the increase in the cost of living.
Nevada’s ballot initiative would amend the state constitution to increase the minimum wage to $12.00 per hour as of July 1, 2024, and instead of the annual adjustment to the minimum wage, the proposed amendment provides that if at any time the federal minimum wage is higher than $12 per hour, the minimum wage would be increased to that amount. The state legislature would also be allowed to establish a higher minimum wage.
The proposal on the ballot in Tukwila, Washington, one of the largest job centers in Washington State, would increase the minimum wage for “large employers” (employers that employ more than 500 employees, regardless of where those employees are employed, and all franchisees associated with a franchisor or a network of franchises with franchisees that employ more than 500 employees in aggregate) to match the minimum wage in the City of SeaTac, effective within 30 days of the election and adjusted annually thereafter by the annual rate of inflation. The proposal would also require an employer to offer additional hours of work to a current part-time employee before hiring an additional employee, provided that the current employee has the skills and experience to perform the work and doing so would not require the employer to compensate the employee at time-and-a-half or other premium rate.
A California initiative to increase the minimum wage to $18.00 per hour did not get sufficient signatures for the 2022 mid-term elections, but will be on the ballot in 2024.
Healthcare Worker’s Minimum Wage
Update: While the results are not yet certified, the measure in Inglewood is projected to pass, while the measure in Duarte failed.
Ballot initiatives in Inglewood and Duarte, California would increase the minimum wage for healthcare workers to $25 per hour effective with the passage of the initiatives, subject to an annual increase beginning January 1, 2024. Both initiatives broadly define healthcare workers to include clinicians, professionals, non-professionals, nurses, certified nursing assistants, aides, technicians, maintenance workers, janitorial or housekeeping staff, groundskeepers, guards, food service workers, laundry workers, pharmacists, nonmanagerial administrative workers and business office clerical workers. Covered employers include acute care hospitals, psychiatric facilities and hospitals, outpatient clinics that are part of acute care or psychiatric hospitals, dialysis clinics, and “integrated health delivery systems” that include a hospital and affiliated physicians group, healthcare service plans, medical foundation clinics or other services.
Hotel Workers’ Minimum Wage and Workplace Standards
Update: This ballot measure is projected to fail.
A Laguna Beach, California ballot measure would increase the hourly minimum wage for hotel workers to $18 beginning 60 days after the effective date of the Ordinance, and increasing by $1 per hour each year beginning January 1, 2023 until 2026. Thereafter, the minimum wage would increase annually based on the consumer price index for the Los Angeles metropolitan area.
Modeled after the recently enacted hotel worker protection laws recently enacted in other California cities, including Glendale, Long Beach, Los Angeles, Oakland, and West Hollywood, the proposed ordinance would establish workload limitations for hotel employees, including a maximum floor space to be cleaned during each workday, limits on mandatory overtime, and voluntary overtime provisions. The ordinance would also require employers to provide hotel employees with personal security devices (e.g., “panic buttons”) for emergencies or when facing violent or threatening behavior, and training on how to use the devices. Employers would be prohibited from disciplining employees who stop working to leave a dangerous situation or for using the personal security device absent evidence of an intentional false claim of emergency. Employees would be given paid time off to report violent or threatening incidents to law enforcement and to seek counseling. Hotel workers subjected to violent or threatening conduct would also be entitled to reasonable accommodation on request.
“Right to Work” and Collective Bargaining
Update: The results have not yet been certified, but Illinois Amendment 1 is projected to pass; voters approved the right-to-work amendment in Tennessee.
Amendment 1, also known as the Workers' Rights Amendment, was placed on the ballot in Illinois after being passed by the General Assembly. The bill would amend the state constitution to prohibit any law that restricts or interferes with the ability of workers to join together and collectively bargain over wages, hours, and terms and conditions of employment, or that restricts or interferes with private sector employers and employees from entering into and administering union security agreements. Several business groups have voiced opposition to the measure, which is supported by the Chicago Teachers’ Union, the Illinois chapter of the AFL-CIO and the SEIU.
In contrast, in Tennessee a proposal that was passed by the state legislature and placed on the ballot for 2022 would amend the state constitution to include the state’s Right to Work law, which prohibits companies from denying employment to anyone because of their membership in or refusal to join a union. The Tennessee AFL-CIO is leading the opposition to the amendment and the Tennessee Chamber of Commerce and other business groups support it. For amendment 1 to pass, it must receive more “yes” votes than “no” votes and the number of “yes” votes must be greater than 50% of all the votes cast in the election for governor.
Update: The Nevada measure passed.
Question 1 on the ballot in Nevada would amend the state constitution to add new language specifically prohibiting the state, its cities, counties, or other political subdivisions from denying or abridging equal rights based on race, color, creed, sex, sexual orientation, gender identity or expression, age, disability, ancestry, or national origin. The explanation and digest of the proposal states:
Although some protection against discrimination exists in federal and state law, there are gaps in the existing legal patchwork that have resulted in unavailable or inadequate protection for certain classes of people, including instances of unequal pay for women and pregnancy discrimination. This ballot measure fills those gaps by providing comprehensive state constitutional guarantees of equal treatment under the law for the classifications of race, color, creed, sex, sexual orientation, gender identity or expression, age, disability, ancestry, and national origin.
The digest also notes that “religion is one of the classifications protected by this ballot measure because courts interpret ‘creed’ to have the same meaning as ‘religion.’ Therefore, by prohibiting discrimination based on a person’s ‘creed,’ this ballot measure adds an additional layer of constitutional protection for our religious liberties.”
We will be following the outcomes of these ballot initiatives after the election. Stay tuned.
1 Alaska, Arizona, California, Colorado, Connecticut, Illinois, Maine, Massachusetts, Michigan, Montana, New Jersey, New Mexico, New York, Nevada, Oregon, Rhode Island, Vermont, Virginia and Washington.
2 In Oklahoma, the issue will be on the ballot in a special election in March, 2023.
3 Alex Koma, Most Councilmembers Won’t Seek Another Repeal If Tipped Wage Ballot Measure Passes, Washington City Paper (Sept. 20, 2022).
4 See Steve Silver, Portland, Maine Voters to Decide on Raising Minimum Wage, Eliminating Tip Credit, and Classifying Ride-share and Delivery Drivers as Employees, Littler ASAP (Aug. 11, 2022).