July Is Always the “New January” for Employment Laws, But This Year Takes the Cake!

Every year, there are numerous state laws and local ordinances that take effect after the first of the year — and 2019 is no exception. Indeed, if anything, this year has seen a dramatic surge in the number of measures adopted, many of which are soon to take effect. This article briefly discusses key labor and employment laws and ordinances that will become effective during the latter half of 2019.

The following measures run the gamut of topics, from independent contractor classification to gender neutral bathrooms and medical marijuana use. These various amendments and laws go into effect on July 1, 2019, unless otherwise noted. While this article does not cover all July 1 minimum wage developments, readers may consult this month’s WPI Wage Watch for that information.1

 

To jump to a particular state, please click on the heading below.

Alabama

Arkansas

Arizona

California

Colorado

Florida

Georgia

Idaho

Indiana

Iowa

Kentucky

Louisiana

Maine

Maryland

Minnesota

Missouri

Montana

Nebraska

Nevada

New Hampshire

New Jersey

New Mexico

New York

North Dakota

Ohio

Oklahoma

Oregon

South Dakota

Texas

Vermont

Virginia

Washington

West Virginia

Wyoming

Alabama

Equal Pay & Salary History. Alabama recently enacted its first wage equity law, which prohibits employers from paying employees at wages less than they pay employees of another sex or race “for equal work within the same establishment on jobs the performance of which requires equal skill, effort, education, experience, and responsibility,” if performed under similar working conditions.2 The law takes effect September 1 and includes protections for applicants who decline to provide their salary history information. Specifically, employers may not “refuse to interview, hire, promote, or employ an applicant, or retaliate against an applicant . . . because the applicant does not provide wage history.” The statute also imposes recordkeeping duties.

Individuals with Disabilities; Use of Service Animals. Alabama also amended its laws related to employment and access to public accommodations for individuals with disabilities. For example, effective September 1, an employer may not refuse employment to an individual with a disability on the basis of his or her disability alone, unless it can show that the particular disability prevents the satisfactory performance of the work involved. The amendments update numerous definitions concerning service animals, require public accommodations to modify policies, practices and procedures as needed to permit the use of service animals, and describe what questions may be asked of individuals (including trainers) to differentiate between pets and service animals.

Arkansas

Cell Phones and Driving. Arkansas has expanded its ban on using wireless communication devices while driving. It remains prohibited to text or use social networking sites while operating a motor vehicle, but the law clarifies the definition of “operating a motor vehicle” applies while operating a vehicle on a public road, street, or highway—and not while a motor vehicle has pulled over where the vehicle can be safely stopped. The updates, effective August 5, repeal a previous exemption for texting between a transit or for-hire dispatcher with a device affixed to a vehicle and the exemption for navigating with a GPS system.3

Data Security Breach Notification. Arkansas requires businesses to notify the Attorney General in the event of a data security breach of personal information.  Effective July 23, personal information includes “biometric data.”4 Biometric data is defined as fingerprints, faceprints, retinal or iris scans, hand geometry, voiceprints, DNA, or other unique biological characteristics of an individual if they are used by the owner to authenticate a person’s identity.

Independent Contractors. On April 17, 2019, Arkansas passed a law to establish a statutory test for determining whether a worker is an employee or an independent contractor. The law codifies the Internal Revenue Service (IRS) twenty-factor test for the purposes of wage and hour, taxation, unemployment, and workers’ compensation laws in Arkansas.5 This law goes into effect on July 23.

Multiple Employer Welfare. A recent law amended Arkansas’s licensure requirements for self-insured employer plans to provide more health insurance purchasing options for small businesses. The law, effective on July 23, permits two or more employers to join together and offer employee benefit plans to their employees or their families.6

Microchip Implantation Restrictions. A new law going into effect on August 5 prohibits microchipping employees as a condition of employment, bans employers from asking for consent to microchip employees on applications or during interviews, and precludes employers from coercing or retaliating against employees who do not wish to have tracking technology inserted into their bodies.7 Among other things, the act requires that employers provide alternative reasonable accommodations for employees who do not consent to implantation of a microchip. If an employee consents to have a microchip implanted, however, all costs and medical upkeep of the implantation and the device will be the employer’s responsibility.

Unemployment Insurance. Also becoming effective on July 5, Arkansas has amended its taxable wage base under unemployment insurance law. One specific change amends the taxable wage base to tie it to the employment rate and the amount of disbursements from, and balance of, the state unemployment insurance trust fund.

Unemployment Disqualification and Overpayments. Arkansas’ unemployment law update creates a light-duty work requirement for those claiming unemployment due to the lack of light-duty work available at a previous employer. The amendment clarifies that light-duty work will be considered suitable work for an individual on approved medical leave from his or her last employer due to the unavailability of light-duty work, unless certain conditions are present. The light-duty work requirement becomes operative on October 1.

Unemployment Reporting Penalties. Arkansas also amended its unemployment laws to create penalties for employers that incorrectly report unemployment data. If an employer files that no wages were paid and then subsequently amends its report to show appropriate information, but more than 20 days after it was due, the state may assess penalties of $30 or 15% of unemployment contributions due, whichever is greater. The additional penalty may be assessed beginning on July 5. 

Wage and Hour Amendments. In April 2019, Arkansas enacted several amendments to the Arkansas Minimum Wage Act. The amendments allow employers to take a credit against minimum wages owned by the amount of any furnished board, lodging, apparel, or other items provided to benefit employees. Amendments also modified the statute of limitations for violations of wage and hour provisions to two years and clarified that employees must prove any violations were willful. The law further provides that employers can pay wages via preloaded debit cards as long as employees have at least one free withdrawal. In addition, the updates change the final payment timeframe to the next regular payday and hold employers responsible for double wages if they do not pay within seven days of that payday.8 

Arizona

Bona Fide Associations. Arizona amendments to health insurance plan rules will now provide two paths for employer groups to be classified as bona fide associations for purposes of providing insurance plans to members, effective on July 27. A Path 1 bona fide association: (1) was formed and maintained for purposes other than obtaining insurance, and does not condition membership on the purchase of any sponsored insurance; (2) has a constitution and bylaws; (3) insures at least 25 members or employees of the association for benefiting those other than officers or trustees of the association; (4) does not base membership on any health status or the status of any dependent or employee, and announces this fact in membership paperwork; (5) offers benefit plans to all members regardless of any health status and announces this clearly in association paperwork; and (6) only offers benefits to association members and clearly states this in membership materials. A Path 2 bona fide association is one that meets the criteria for a multiple employer group health plan under federal law.

Mini-COBRA. Arizona amended its mini-COBRA statute to update the definition of “small employer” to include a business with 1-19 employees. Accordingly, as of July 27, employers with exactly 20 employees are no longer considered small employers for purposes of continuing health care coverage.

California

Minimum Wage. While the California state legislature is as busy as ever, the only notable labor and employment updates thus far in 2019 include scheduled minimum wage increases at the local level. Wage rate hikes will be taking place up and down California, in cities such as Alameda, Berkeley, Emeryville, Long Beach, Los Angeles, Oakland, and San Francisco.9 Employers in the Golden State should stay tuned for developments as the state legislative term progresses.

Colorado

Criminal Conviction Expungement. Colorado has reenacted its law prohibiting employers from requiring applicants to disclose expunged or sealed criminal records. The law instead allows applicants with sealed or expunged criminal records to state that they have no criminal convictions if they are asked about their criminal history. Furthermore, employers are barred from refusing to hire an applicant based solely on a refusal to disclose sealed criminal records. The effective date for this law is August 2.

Criminal History. Colorado enacted the Colorado Chance to Compete Act (CCCA), which generally prohibits employers from advertising a position indicating that individuals with a criminal history may not apply and from asking about an applicant’s criminal background on an application.10 As of September 1, 2019, employers of 11 or more employees are covered by the CCCA; after September 1, 2021, it will apply to all employers. The CCCA goes into effect on August 2.

Electronic Smoking Devices. Colorado has expanded its ban on smoking in public places and workplaces to include electronic cigarettes as of July 1. The ban includes any kind of vapor, inhalant, burned or heated tobacco or marijuana product in any form in any indoor area, including a place of employment.

Electronic Tax Filings. Amendments to the Colorado tax code will require employers to file any annual statement of wage withholdings or remittance of wage withholding electronically, effective August 2. The state tax executive director may waive the requirement with a showing of good cause.

Garnishment. Amendments to Colorado’s wage garnishment laws will require more detailed notice from employers before garnishment begins and will reduce the percentage of earnings subject to collection. The employer must provide notice within seven days after the court approves the garnishment and 14 days before the garnishment takes effect. Currently, the amount subject to garnishment is 25% of disposable earnings or the amount an individual’s disposable earnings for a week exceeds 30 times the state or federal minimum wage, whichever is less. Under the amendment, these limits are modified to 20% of disposable earnings, or 40 times the minimum wage, whichever is less. These changes take effect on August 2.

Tip Pooling Notice. Colorado has adopted a law stating that all tips belong solely to the employee unless the employer has posted a public notice that all tips are the property of the employer. Further, any gratuities are the property of the employee unless the employer notifies each patron in writing—e.g., via menus, tables, or receipts—that gratuities are shared. This amendment also goes into effect on August 2.

Florida

Smoking Ban. Florida updated its indoor smoking restrictions to include a ban on vaping and electronic cigarettes at work. The amendment does not preclude localities from enacting greater restrictions.

Unemployment Compensation. As of July 1, Florida employees who can prove their voluntary separation and discontinued employment are a direct result of circumstances related to domestic violence will not be disqualified from receiving unemployment benefits. To qualify, employees must show reasonable efforts to preserve employment (such as seeking an injunction, or reasonable accommodation), provide evidence showing domestic violence has occurred, and “reasonably believe that he or she is likely to be the victim of a future act of domestic violence at, in transit to, or departing from” the workplace. 

Georgia

Workers Compensation. Amendments to Georgia workers’ compensation law to update certain benefits will soon take effect. For example, and among other amendments, the law raises the maximum weekly rates for temporary total disability from $575 to $675 per week and for partial disability from $383 to $450 per week. Also, the maximum death payout to a beneficiary has been increased from $230,000 to $270,000.   

Idaho

Service Dogs. Idaho has amended its service dog laws to protect the rights of individuals with disabilities to be accompanied by service dogs inside places of public accommodations. The amendments define “service dog” as a canine animal that is trained to perform tasks for a person with a disability, such as visual assistance, alerts to sounds for those with hearing difficulty, assisting with a wheelchair or other movement, allergen alerts, seizure assistance, or providing assistance with psychiatric or neurological disabilities. The dog must be identified as a service animal by a harness, scarf, or specialty collar. Further, the place of public accommodation is not allowed to require documentation about the dog’s license or ask for a surcharge for the dog to enter the premises, and must not inquire about the dog if it is obviously a trained service animal.

Wage Claim Statute of Limitations. As of July 1, Idaho also lengthened the statute of limitations for filing a claim for lost wages or liquidated damages after receiving a partial payment. If an employee claims additional wages or penalties are due, he or she will now have 12 months from the accrual of the cause of action to file those claims, rather than the previous 6-month window. 

Indiana

Direct Sellers. The minimum wage law in Indiana will be modified this July. The law will now reflect an updated definition of “direct seller” to determine if workers are not employees for the purposes of minimum wage standards and unemployment compensation rules.

Workplace Safety Civil Penalty. Indiana has amended its state workplace safety law to add penalties for willful violations of the Indiana Occupational Safety and Health Act (Indiana OSH). If an employer is found to have willfully violated the Indiana OSH, and that violation contributed to an employee’s death, the state commissioner of labor will fine the employer between $9,472 and $132,598 for each violation.

Iowa

Employer Liability for Negligent Hiring. A new Iowa law will limit employer liability for negligently hiring an employee, agent, or independent contractor previously convicted of a crime. The measure includes several exemptions to this restriction, if the employer or owner should have known of the conviction and the offense at issue is of a certain type. For example, the exemption would not apply to specified violent offenses. Nor would the exemption apply to individuals who committed crimes “while performing duties substantially similar to those reasonably expected to be performed in the employment,” depending on factors such as the seriousness of the offense, the extent of prior criminal activity, the age of the individual at the time of the offense, and how long ago the crime occurred.  

Franchisor Not an Employer of Franchisee Employees. Another new law from Iowa confirms that a franchisor is not an employer of a franchisee’s employees. For purposes of workers’ compensation, unemployment, wage payment and fair employment laws, a franchisor is not the employer for franchisee employees unless either (1) the franchisor agreed in writing to be an employer; or (2) the franchisor has exercised more control over the franchisee or its employees than would generally be used by a franchisor for protecting a trademark or brand.

Kentucky

Arbitration, Mediation, Background Checks. Effective on June 27, Kentucky law explicitly provides that employers can require employees or applicants to agree to the arbitration of claims. The measure contravenes the Northern Kentucky Area Development District v. Snyder case, in which the state supreme court held that Kentucky law bars government agencies from requiring mandatory arbitration as a condition of employment.11 While the Federal Arbitration Act still governs, the new measure states that employers may obligate an employee or applicant to agree to arbitration or other alternative dispute resolution before hiring, but it also requires that an arbitration agreement “safeguard the effective vindication of legal rights” by including certain provisions.

Expansion of Health Insurance Options. Kentucky has also amended definitions within the state’s health insurance laws, as of July 1. For example, the revised definition of “employer-organized association” includes any association of employers actively in existence for at least two years and established under the Employee Retirement Income Security Act (ERISA) for the purpose of providing an employee benefit plan. The definition of “health benefit plan” was expanded to include self-insured government or church plans, and the term “large group” was updated to include employer-organized associations that are fully insured, cover 51 or more employee members, and are registered with the Kentucky Department of Insurance. Self-insured employer-organized association groups will now need to pay a $500 fee to apply for a certificate of filing, up from $5 previously, and they must file application forms with the commissioner.

Kentucky Pregnant Workers Act. Kentucky joined the growing movement to offer specific employment protections to pregnant workers for health conditions related to pregnancy.12 Specifically, the Kentucky Pregnant Workers’ Act lists reasonable accommodations that may be required for medical conditions related to pregnancy, such as more break time, recovery time after childbirth, acquisition or modification of equipment, appropriate seating, transfer to another position temporarily, light duty work, and a private area that is not a restroom for expressing breast milk. The statute provides employers with an option to decline such accommodations if they present an undue hardship. Employers are also directed to post a notice that employees have the right not to be discriminated against due to pregnancy, childbirth, or related conditions. The law takes effect June 27.  

Louisiana

Health Insurance Notifications. As of August 1, Louisiana amended its insurance law to allow for an employer policyholder of a group health plan to consent to electronic delivery of documents and notices on behalf of covered employees, if several conditions are met. For the consent to electronic delivery to be effective, a covered employee must be able to effectively access any documents delivered by electronic means at any location where the employee is reasonably expected to perform his or her job duties.

Maine

Applicant Privacy. Maine has enacted a law to prohibit employers from requesting applicants’ or prospective employees’ Social Security numbers unless they will be used for substance abuse testing or a preemployment background check. The prohibition no longer applies after an employee is hired. The measure will go into effect on September 17.

Mini-WARN. Maine has extended the state’s mini-WARN notice requirements from 60 to 90 days’ written notice before closing or relocating a worksite. The amendment also clarifies that the $500 per-day penalty applies to violations of the requirement that notice be sent to the Maine Director of the Bureau of Labor Standards, and to violations of the requirement that notice be sent to employees and municipal officers. This update also takes effect on September 17.

Multiple Employer Welfare Arrangements. Another Maine law to become effective on September 17 amends state laws regarding insurance benefits offered by associate groups or trustee groups. The amendment repeals multiple employer welfare arrangements (MEWAs) that are based on geography and redefines eligibility for MEWAs to include an association with employer members representing multiple trades, industries or professions. Any policies issued or renewed after January 1, 2020 will fall under these amendments, except for employers with plans grandfathered in under the federal Affordable Care Act. 

Salary History. Maine jumped on board the salary history ban trend, enacting a law that defines pre-employment compensation history inquiries as evidence of unlawful discrimination.13 As of September 17, Maine has effectively banned inquiries of past salary history during an interview or the application process. An employer may ask about salary history after an offer is made, as long as all of the terms regarding compensation have already been negotiated and proposed to the applicant. Inquiries about salary history are allowed when required under federal or state law.

Tip Pooling. Maine amended its law on tip pooling to clarify that an employer can establish a tip pooling arrangement when that arrangement is only among service employees. The amendments also clarify that tip pooling arrangements are allowed if they do not violate the federal Fair Labor Standards Act. This measure also goes into effect on September 17.

Unemployment Disqualification. The Maine law regarding when employees are disqualified from unemployment benefits was recently amended to clarify that an employee who has been terminated for the unauthorized use of marijuana while on duty would be considered an “intoxicated” employee who is disqualified from benefits. An employee who is using marijuana as authorized by the Maine Medical Use of Marijuana Act, however, is not disqualified from unemployment benefits. These amendments take effect on September 17.

Volunteer Emergency Responder Leave. Maine law provides that an employer may not discharge or discipline an employee because the employee is absent from work to respond to an emergency in the employee’s capacity as a firefighter. Effective September 17, an amendment to this law adds that an employer must not discriminate against an employee under such circumstances and extends these protections to emergency medical services personnel, including volunteers. The amended law requires an employee responding to an emergency to make every effort to notify his or her employer immediately.

Maryland

Data Security Breach Notification. Maryland has passed amendments to its data breach notification laws, to take effect on October 1. The updates require any business that owns, licenses, or maintains computerized data with personal information to investigate any potential breach to determine the likelihood that personal information was accessed. If it is found likely that personal information was disclosed, the owner or licensee of the data must notify the individuals affected.

Easy Enrollment Health Insurance Program. Maryland has created the Easy Enrollment Health Insurance Program. Beginning June 1, the Maryland Health Benefit Exchange and the State Department of Health will create the infrastructure of the program. It will use state income tax records to identify uninsured residents; state income tax forms will have a box that individuals can check to indicate they are interested in obtaining insurance. The insurance program will then create an enrollment process for residents to sign up for insurance if they choose.

Employment Discrimination – Time to File Complaint. Maryland will extend the filing period for employees bringing a claim for unlawful employment discrimination or a discriminatory wage practice to 300 days, up from the previous six-month limitations period. This amendment, which will take effect October 1, brings Maryland more into line with EEOC filing deadlines. In a related change, the state is updating the name of the Maryland Department of Licensing, Labor, and Regulation to the Department of Labor as of July 1.

Equal Pay Penalties. Amendments to equal pay laws in Maryland have added a civil penalty equal to 10% of the amount of damages owed by the employer. This fine will be assessed against an employer that has violated equal pay laws two or more times within three years, and any penalties assessed will be remitted to the state general fund to help fund the cost of enforcing the law. The new penalty provision takes effect on October 1.

Noncompete Agreements. Maryland has passed a prohibition on noncompete agreements for any employee earning up to $15.00 per hour or those earning up to $31,200 per year. Any employment agreement entered into that violates this ban will be void. This law does not apply to contracts that restrict employees from using proprietary data or client lists. The ban on noncompete agreements becomes effective October 1.

Organ Donation Leave. A new law in Maryland will require that employers provide up to 60 business days of unpaid leave for organ and bone marrow donation. The employee must provide written verification from a physician verifying that the employee is a donor. Organ donation leave time does not run concurrently with available leave under the federal Family and Medical Leave Act. This law also takes effect October 1.

Special Enrollment for Pregnancy. The state has updated laws mandating insurance enrollment periods to include an enrollment window for a woman who has confirmed a pregnancy. As of the day a woman confirms a pregnancy with a health care practitioner, a special enrollment period will open for 90 days. Any insurance carrier in Maryland’s health insurance exchange is required to provide the special enrollment period. 

Workplace Harassment Protections. Maryland has expanded its laws against workplace harassment to cover independent contractors as well as employees. The amendments also clarify the definition of “employer” to include businesses with 15 or more employees in at least 20 weeks of the previous calendar year for purposes of discrimination. For harassment claims, an “employer” need have only one employee. The measure, effective October 1, also provides guidelines for sexual harassment training requirements for University of Maryland employees.

Montgomery County, Maryland – Minimum Wage Coverage. Montgomery County, Maryland adjusted the county’s definition of “employer” as it relates to which businesses are required to pay minimum wages. As of July 1, this amendment will require any employer with one or more employees in the county “in addition to the owners” to set pay rates at the minimum wage or higher. The previous definition covered employers with two or more employees.

Minnesota

Cell Phones and Driving. Minnesota revised its law prohibiting cell phone use while driving, effective August 1. The amendments update key definitions, including the meaning of “wireless communication device,” which specifically excludes devices permanently, physically integrated into the vehicle, navigation-only systems, and certain types of radio equipment. The definition of “electronic message” is expanded to include e-mails, text messages, instant messages, accessing a web page, voicemail messages, transmitted images or video, transmitted gaming data, and other data transmitted using a commonly recognized electronic communications protocol. Among other things, the amended law also broadens the prohibition against texting and driving to prohibit most mobile device use while driving.

Recordkeeping. Minnesota law requires that employers make and keep certain records. Recent amendments, taking effect July 1, add to the list of mandatory records.14 Employers will be obligated to retain records concerning piece-rate compensation, personnel policies provided to employees, and required notices provided to employees. Employers must maintain the records either at the place where employees are working or in a manner that allows the employer to comply within 72 hours. The amendment allows a fine of up to $5,000 for each repeated failure to maintain records.

Wage Payment. The state amended its law governing the frequency of wage payments, to clarify that employers must pay all wages, including salary, earnings, and gratuities earned at least every 31 days, and all commissions earned at least once every three months.15 In addition, the law allows the Commissioner of the Department of Labor and Industry to collect the wages earned at the employee’s pay rate or at the rate required by law and permits the attorney general to enforce such actions.

Wage Statements and New Hire Notice. Effective July 1, new employees must receive a detailed written notice at the start of their employment.16 The notice must include information about: pay rates; any meal or lodging allowances; paid vacation, sick, or other PTO terms; employment status; deductions that may be taken from pay; the pay period; the legal and operating names of the employer; and the employer’s contact information (specifically, the physical and mailing address of the employer’s main office or principal place of business, as well as its telephone number). Employees must be notified in writing of any changes to this information during the employment, before any such changes take place.

Amendments to the law also require employers to include additional, similar information in paystubs, such as the employer’s contact information, employee compensation rates and methods, and any allowances.

Wage Theft. While wage theft has been and continues to be an unlawful employment practice under state law, the North Star State has criminalized wage theft, effective July 1.17 Violations may be prosecuted and penalized as criminal theft. In addition, amendments to the wage theft law allow the Commissioner to seek an inspection order if an employer refuses to permit entry into the workplace for an inspection. The Commissioner is also authorized to seek evidence broadly from an employer, including the interviewing of non-management employees in private.

Missouri

Employment Tax Withholding. By amendment effective June 3, Missouri updated numerous regulations concerning wage withholding for tax purposes. For example, the flat percentage rate used for withholding from supplemental wages (such as bonuses and overtime) has been modified. The amendment also affects withholding procedures for tipped employees, requires electronic filing for certain employers, and permits employees who expect to receive a tax refund to direct an employer to withhold only the amount indicated on the employee’s state W-4 form.

Kansas City – Salary History. Effective October 31, employers in Kansas City with six or more employees are prohibited from asking applicants about their salary history.18 Employers are also precluded from screening applicants based on previous wages or compensation and from setting any minimum or maximum pay criteria.

Montana

Microchipping. Montana has enacted a law, which will take effect on October 1, that will prohibit employers from implanting microchips in employees unless employees give written permission. Provided the employee gives written consent, the employer must pay all costs of implantation, removal, and any medical costs resulting from injury. The employer must inform the employee of what data is maintained and how it will be used, and must remove the chip within 30 days of an employee’s request that it be extracted. 

Service Animals. Montana has adopted amendments, effective October 1, to its service animal laws. The amendment revises the definition of “service animal” to include only dogs or miniature horses trained to assist an individual with a disability. It also excludes animals designated only as emotional support animals. Under the amendments, the service animal is allowed to accompany its handler to public places and must be under the handler’s control. A place of public accommodation may ask the person accompanying the animal whether it is a service animal and what tasks the animal is trained to perform. If the animal is not under control or not housebroken, the handler may be asked to remove the animal. Finally, if the accommodation has posted a notice that dogs or animals are not allowed on site, the notice must also state that a service animal is allowed.

Workers’ Compensation Reimbursement. Amendments to workers’ compensation laws allow private employers to be reimbursed for the costs of any workers’ compensation premiums incurred for hiring students into high-quality, work-based learning opportunities. Businesses must register the work-based learning opportunities with the state Department of Labor and Industry, and the student employment must provide on-the-job training for marketable skills.

Nebraska

Prescription Benefits. Nebraska enacted a prescription benefits law, effective September 6, to require health insurance plans to cover some partial prescription refills. The measure covers prescriptions for chronic conditions and will allow refills of more than one medication to be synchronized to the same schedule. The partial refill requirements will apply to most insurance policies and self-funded employee benefit plans that cover prescription medicines.   

Wage Transparency. Nebraska also adopted a law to protect employees who discuss their wages or benefits with other employees. The law makes any discrimination due to wage or benefits disclosures an unlawful employment practice. It does not apply if an employee with authorized access to compensation information discusses that information with another employee who does not have such access. The law does not obligate the disclosure of compensation information, permit employees to disclose proprietary information without written permission from the employer, allow employees to disclose wage or benefits information to competitors or competitors’ employees, permit employees to discuss wages in violation of contractual obligations or during working hours, or authorize employees to publicize employee wages or benefits. The law also does not apply to employers that are exempt from the Nebraska Fair Employment Practices Act. The wage transparency measure goes into effect on September 6.  

Unemployment Insurance. Nebraska has amended its taxable wage base under the Employment Security Law to $24,000 for employers subject to category 20, for tax years beginning after January 1, 2020. Employers in other experience rating categories will have a taxable wage base of $9,000.

Nevada

Criminal History. Nevada has passed a law providing that if an offense is decriminalized, any person who was convicted of that offense before the offense was decriminalized may request that the records be sealed by the court or criminal justice agency holding the records. “Decriminalized” means that an offense is no longer punishable as a crime. This designation will apply to offenses decriminalized both before and after July 1, when the law takes effect.

Data Privacy. In a law enacted on May 30, Nevada has banned websites from selling consumer data if the consumer has requested that covered information not be sold. Covered information includes first and last name, addresses, telephone number, Social Security number, or other contact information for an individual. If a website collects such information, it must notify consumers of the information collected, explain how consumers can modify their information, disclose whether third parties may collect their information, and provide the effective date of the notice. The measure becomes effective October 1.

Discrimination Enforcement Procedures and Claims. Under the Nevada Fair Employment Practices Act, employees alleging unfair employment practices affecting a protected class can bring a complaint to the Nevada Equal Rights Commission against employers with 15 or more employees. The amended law changes some enforcement procedures and timelines for employees bringing such complaints.19 For example, the Commission must issue a notice to the employee, if requested, of the employee’s right to sue if at least 180 days has passed since the incident occurred. After such notice, the employee has 90 days to bring the action to court.  

Microchip Implantation Restrictions. Like Arkansas and Montana, Nevada has enacted a law prohibiting any entity or person from requiring someone to undergo the implantation of a microchip or other permanent identification marker as a condition of employment. The term “microchip” is defined generally to include “a device that is subcutaneously implanted in a person and that is passively or actively capable of transmitting personal information to another device using radio frequency technology.” The new law, effective October 1, allows individuals to voluntarily consent to such implantation.

Nondisclosure Agreements. As of July 1, employers that settle certain allegations involving sex discrimination or sexual offenses cannot prevent the claimant from disclosing the existence of the settlement, or the facts and circumstances giving rise to the claim. The ban on nondisclosure provisions applies to claims brought in a civil or administrative action, asserting conduct that constitutes a sexual offense under Nevada criminal laws, discrimination on the basis of sex, or retaliation for reporting sex discrimination. The law further permits alleged victims to have their identities – or any facts that could lead to the disclosure of their identities – kept confidential, unless a governmental agency or public officer is a party to the settlement. 

New Hampshire

Child Labor. Workers under the age of 18 in New Hampshire will soon be limited to working no more than eight hours per 24-hour period between the hours of 8 p.m. and 6 a.m. during any week during which they are working more than two nights. The change takes effect on July 14.

New Jersey

Paid Family and Medical Leave Amendments. Earlier this year, New Jersey enacted substantial changes to its statewide family and medical leave and temporary disability benefits laws.20 One key change, taking effect June 30, is an expansion of the number of employers covered by the Family Leave Act (NJFLA). Previously, the NJFLA applied only to employers of 50 or more employees. As of June 30, however, the NJFLA will apply to all employers that employ at least 30 employees during each “working day” in the “20 or more calendar workweeks in the then current or immediately preceding calendar year.” 

New Mexico

Accessibility to Health Care. New Mexico has enacted amendments to bring state medical insurance policies more into alignment with the Affordable Care Act.21 Of particular interest, the amendments forbid insurance companies from using gender as a factor to limit coverage, basing costs on gender or genetic information, discriminating in coverage against certain protected classes, or denying insurance based on pre-existing conditions. The changes are effective as of June 14.

Amendments to the Dee Johnson Clean Indoor Air Act. Another amendment in New Mexico expands the state’s existing smoking ban to include e-cigarettes, also effective on June 14.22 Any type of inhalant, whether burned or aerosolized, is now banned at indoor workplaces. Importantly, the ban now also applies to employers of any size, including those with just one employee. Outdoor smoking areas remain allowed, as long as they are located a reasonable distance from the building and as long as employees and the public are not subject to breathing secondhand smoke in order to enter the building.

Amendment to the Lynne and Erin Compassionate Use Act. New Mexico has also expanded the definition of “debilitating medical condition” under its medical marijuana law to include many more medical conditions. Most relevant to employers, these amendments to the Compassionate Use Act make it unlawful for an employer to take adverse employment action against an applicant or an employee based on conduct allowed under the act.23 Employers may take adverse action, however, if not doing so would result in loss of a monetary or licensing-related benefit under federal law or regulations. Moreover, the amended law does not restrict an employer’s ability to prohibit or take adverse employment action against an employee for using or being impaired by medical cannabis in the workplace or during work hours. Further, the adverse action provisions do not apply to an employee working in a safety-sensitive position. These changes are effective as of June 14.

Caregiver Leave. New Mexico has enacted a “kin care” statute, the Caregiver Leave Act, which is also effective on June 14.24 The law requires a private employer that provides paid sick leave for employees to permit them to use that sick leave to care for a family member. The new law defines “family member” as an employee’s spouse, domestic partner, or (whether by blood, marriage or adoption) a parent, grandparent, great-grandparent, child, foster child, grandchild, great-grandchild, sibling, niece, nephew, aunt, or uncle. The law considers sick leave as separate from leave time under the federal Family Medical Leave Act. The statute neither requires employers to offer paid sick leave, nor prevents employers from providing more sick leave. It also prohibits retaliation against employees who request or use caregiver sick leave.

Criminal Background Checks. New Mexico has joined the “ban the box” states with the Criminal Offender Employment Act.25 The measure prohibits private employers from inquiring about an applicant’s arrest or conviction history on an initial employment application, but allows employers to consider an applicant’s conviction history after “discussion” of employment with the applicant. The law does not prohibit employers from notifying the public or an applicant that the law or an employer’s policy could disqualify an applicant who has a certain criminal history from employment. The Criminal Offender Employment Act is effective June 14.

Gender-Neutral Restrooms. New Mexico enacted the Gender-Free Bathrooms Act to provide for gender-neutral single occupancy restrooms.26 Under the law, any single-user toilet facility in a place of public accommodation must be made available to any person regardless of gender identity or sex. A single-user restroom should also be designated for use by only one occupant at a time, except for family or assisted use, and should be labeled with gender-neutral signage. Businesses are not required to build a new single-user toilet if one is not already on site.  The law is effective July 1.

Labor Relations. The Union Security Agreements measure, which upends “right-to-work” local ordinances in New Mexico, is effective as of June 14.27 The law allows labor organizations and employers to require employees to be members of a union by way of a union security agreement in a collective bargaining agreement. The measure provides that the state has exclusive jurisdiction to prohibit the negotiation, execution, or application of agreements requiring membership in a labor organization as a condition of employment in New Mexico. Cities and localities are expressly banned from making or continuing to enforce any ordinance or rule that would prohibit such union membership agreements.

Telemedicine Coverage. Also effective June 14, a New Mexico telemedicine measure provides that any deductibles, copayments, or coinsurance payments for telemedicine may not exceed those charged for in-person services. Additionally, if no in-network provider is available to provide telemedicine services in a timely manner, the insurer must allow coverage for out-of-network providers.

New York

Suffolk County, New York – Salary History. Suffolk County, New York became the fourth New York jurisdiction to pass a salary history inquiry ban.28 The Suffolk County salary history ban is set to take effect on June 30 and will apply to any local employer with four or more employees. The resolution bans employers from relying on salary history information in determining an applicant’s compensation at any stage in the employment process.

Westchester County, New York – Domestic Violence Leave. Westchester County has enacted a new ordinance, the “Safe Time Leave Law,” that, beginning October 30, 2019, will require all private employers to provide up to 40 hours of paid leave for victims of domestic violence and human trafficking.29 This requirement applies to any individual employed in Westchester County for more than 90 days during a calendar year, and employers must notify employees of this leave time option, which is separate from any other paid or unpaid leave that employers may provide. Employees must notify employers of their request to take leave, and employers can ask for verification that the leave is being used for a covered purpose.

North Dakota

Noncompete Agreements. Generally in North Dakota, noncompete agreements are prohibited by state law if they restrain anyone from participating in a lawful profession, trade, or business of any kind. There are only two exceptions: (1) the sellers of a business may agree not to start a similar business within a reasonable geographic area for a reasonable amount of time; and (2) partners can agree that upon dissolution of the business they will not embark on a similar business within a reasonable timeframe in a reasonable geographic area. The noncompete amendments, which become effective August 1, update the scope of the geographic term to “reasonable area” from the previous restriction to a specific city or county.

Minimum Wage Preemption. North Dakota passed a law prohibiting any locality or city from enacting or enforcing any law that would require a higher wage than is required by state law. Therefore, the minimum wage in the state will continue to track the federal minimum wage of $7.25 per hour as of August 1.

Volunteer Emergency Responder Leave. The definition of “volunteer emergency responder” has been updated from members of the North Dakota Army National Guard or Air National Guard to include volunteer members of the National Guard of any state. The amendment takes effect on August 1.

Marijuana Decriminalization. Although the state generally criminalizes controlled substances, North Dakota has decriminalized marijuana use for a person 21 years or older. The law does not require that employers accommodate employee or applicant marijuana use, however. This change also becomes effective on August 1.

Workers’ Compensation. North Dakota has amended its workers’ compensation law to require an annual payroll report to be filed electronically with state Workforce Safety and Insurance Organization (WSIO). The amendments also prohibit agreements in which employees waive any rights to workers’ compensation coverage or agree to pay any portion of workers’ compensation premiums. The WSIO has the authority to require premiums in advance. The amendments note that payments are considered to be in default if they are one month past the payment due date; there are several possible penalties possible for noncompliance. The amendments are effective August 1.

Ohio

Motor Carrier Exemptions. Ohio adopted a law to direct how to classify workers as “employees” for purposes of overtime pay, minimum wage, workers’ compensation, and unemployment insurance laws. The law, effective July 3, lists several metrics for determining whether a driver of a transport company is an employee, such as whether the driver owns or leases the vehicle, whether the individual supplies personal services to operate the vehicle, whether compensation is based on mileage or percentage of schedule rates, and whether the driver is responsible for operation and maintenance costs of the vehicle.

Workers Compensation Employer Premium. Ohio has enacted rules regarding how employers’ workers’ compensation premiums will be set. The new formula for employers will be payroll multiplied by base rate and by any experience modification or experience adjustment factor. If employers are individually experience rated, individually or group retrospective rated, or participating in a deduction program, the new rule allows for adjustments.

Oklahoma

An Act Relating to Health Insurance for Small Employers. Oklahoma has passed the Small Employer Health Insurance Reform Act (Small Employer Act) to redefine what is classified as a bona fide association health plan in the state. The Small Employer Act redefines bona fide associations as an association that has a current Form M-1 filed with and accepted by the Department of Labor showing Oklahoma as the association’s state of operation. Bona fide associations must also be: (1) formed under a pathway established in accordance with the applicable provisions of 29 C.F.R. § 2510; or (2) previously established or newly formed under federal regulatory guidance effective prior to August 20, 2018. Bona fide health plans are those sponsored by a bona fide association. The Small Employer Act also labels such plans as large groups under the Oklahoma Insurance Code and include several amended requirements that the health plans must meet.

Employers’ Rights and Obligations in Prohibiting Firearms.  Oklahoma has amended its concealed carry laws to allow individuals to carry firearms without a permit or training. Business owners’ rights under the existing law provide that they may limit or control possession of weapons on their property. However, no business may establish policies or rules that prohibit any person, except convicted felons, from having firearms in a locked vehicle in parking areas. The amended law, which takes effect November 1, states that if a business prohibits firearms and is open to the public, it must post signs stating that carrying a firearm on the premises is prohibited.

Marijuana Smoking and Vaping. The Oklahoma law banning smoking in the workplace has been amended to clarify that “smoking” includes smoking tobacco or marijuana, or vaping marijuana. The amendment goes into effect on November 1.

Medical Marijuana. The Oklahoma Medical Marijuana and Patient Protection Act will become effective on August 29. The act permits the use of medical marijuana for qualified patients with specified medical conditions. Employers cannot refuse to hire or take adverse employment actions against an applicant or employee solely on the basis of a positive test for marijuana when that person has a medical use license. There is an exception if the employee or applicant does not have a license, is using or testing positive for marijuana during work hours or on the premises, or holds a safety-sensitive position.30  

Medical Marijuana Discrimination. Relatedly, as of November 1, Oklahoma law provides that offenses committed by individuals with a qualifying medical condition, but who are not in possession of a state-issued medical marijuana license, are not subject to imprisonment. Of interest to employers, the amendments clarify that employers may not discriminate against licensed medical marijuana users unless the business has the potential to lose money or licensing-related benefits under federal regulations for failing to do so.

Multiple Employer Welfare Arrangements. Oklahoma has amended its law regarding multiple employer welfare arrangements (MEWAs) to repeal previous exemptions from its licensing requirements. The exemptions applied to certain MEWAs that had been in existence and had provided health insurance for five years prior to January 1, 1993 and that were established by a trade, industry, or professional association of employers that had existed at least 30 continuous years prior to January 1, 1993. The amended law removes that exemption and requires that a MEWA must be a nonprofit entity. The amendments, effective on November 1, require MEWAs to have a current M-1 form accepted by the Department of Labor and to have been formed either under federal regulations or previously established under federal guidance prior to August 20, 2018. The MEWAs must apply to the state insurance commissioner with a variety of documentation to obtain a license.

Protection from Workplace Harassment and Violence. Oklahoma has passed a new law to allow an employer to obtain a temporary restraining order on behalf of an employee who has been threatened or harassed at work. The law, called the Protection from Workplace Harassment and Violence Act, permits an employer to file for an injunction prohibiting workplace harassment, but notes that employers are immune from liability for seeking or failing to seek an injunction, with some exceptions. Harassment is defined as two or more acts directed toward an individual that would cause a reasonable person emotional distress. The Protection from Workplace Harassment and Violence Act takes effect on November 1.

Unemployment Appeal Deadlines. Another amended law in Oklahoma will extend from 14 days to 20 days the time employers have to appeal a decision that a former employee is due unemployment benefits. Employers must file the protest in writing with specific objections to the determination within 20 days of the date the determination is mailed. The amendments also allow employers to waive the appeal for up to a year for good cause and to file for the redetermination of benefits in writing within one year of the initial determination.

Oregon

Breastfeeding Break Time. Oregon has modified its rules regarding employer requirements to provide breastfeeding breaks to employees by making the law applicable to all employers, with no small business exemption. As of September 29, amendments also limit the undue hardship exemption to employers with 10 or fewer employees. The measure removes the timeframe requirements of 30-minute rest periods every four hours of work and substitutes a “reasonable rest period” to express milk as needed. 

Exemptions from OregonSaves. In 2015, Oregon created the Oregon Retirement Savings Plan (“OregonSaves”), a state-sponsored payroll deduction retirement savings plan requiring Oregon employers that do not offer retirement plans to their employees to make payroll deductions from their workers’ wages into the state’s program. A new law, effective September 29, clarifies how employers can assert their eligibility for an exemption from OregonSaves. To obtain an exemption, employers must indicate that they offer a qualified retirement plan on their annual returns for employment tax withholding. The state Department of Revenue will include a means for the employer to do so on the return form and is authorized to then disclose that information to the State Treasurer. The new procedures apply to returns submitted on or after January 1, 2020.

Immigration Worksite Enforcement Notice. Under a new law adopted in Oregon, and effective June 6, an employer must notify employees if it receives notice from a federal agency requiring the employer to provide agents with access to its employment eligibility verification documents. The employer must inform employees of the impending inspection within three business days of receiving the federal agency notice. Notice to employees must include certain information, such as the date of the inspection. The pertinent state agency will provide a template notice.

OregonSaves Enforcement. Oregon has passed amendments to OregonSaves, effective September 29, to create enforcement procedures for employees who allege an employer failed to comply. Under these provisions, an employee may file a complaint with the Commissioner of the Bureau of Labor and Industries, within two years of the employer’s deadline to register with the plan. The amendment also grants the Commissioner authority to investigate and determine if an employer engaged in an unlawful employment practice.

Statute of Limitations – Discrimination Claims. Oregon recently enacted a measure designed to reduce and prevent employment discrimination. One of the amendments, effective October 1, extends the statute of limitations for employees to file civil actions for unlawful discrimination, or to file similar complaints before the Bureau of Labor and Industries, from one year up to five years.31 The five-year limitations period will apply to conduct occurring only on or after the amendment’s effective date.

South Dakota

Electronic Smoking Devices. South Dakota has expanded the definition of “smoking” in its statewide ban to include electronic smoking devices. As of July 1, vapor, aerosolized, or heated tobacco of any type, whether natural or synthetic, will be prohibited in any public place or workplace.

Texas

Age Discrimination. Texas has amended its age discrimination law to prohibit age discrimination against any individual 40 years of age or older, effective on September 1. The law previously banned discrimination of people between ages of 40 and 56, but this provision eliminates the upper age range of 56 years.

Employment Protections for Jury Service. Texas has expanded employment protections for employees serving on a jury as of September 1. An employer is barred from threatening, intimidating, or discharging any permanent employee based on his or her service on a jury. Further, if an employee notifies the employer as soon as practicable that he or she will return after jury service, the employee is entitled to return to the same job position after jury duty.

Grand Jury Service. Relatedly, Texas has specified that the employment protections for employees serving on a jury extend to those serving on a grand jury as well. This expansion is similarly effective on September 1.

Health Insurance Coverage. Texas mandates that as of August 1, specified benefit plans providing health benefits to residents of the state must reimburse for pharmacist-provided procedures and services. The mandate applies to plans with Texas beneficiaries, whether or not the group policy, agreement, or contract is delivered, issued for delivery, or renewed in the state. This requirement does not cover employees of the University of Texas or Texas A & M systems.

Payroll Cards. The Texas Labor Code has been amended, effective September 1, to allow employers to use electronic payroll cards to pay employees, with a few requirements. Employers must provide written notice of the payroll card plan and any fees associated with the program at least 60 days before the first electronic funds are issued. Businesses must also provide a form for employees to opt out of the payroll card program and issue the selected alternative payment method as soon as practicable and at least no later than 30 days after the employee submits the request.

Right to Express Breast Milk. Existing Texas law provides that a mother may not be denied the right to breastfeed her baby in any place she is allowed to be. Effective September 1, the Texas statute will also entitle a mother to express breast milk in any location where her presence is authorized. Although the law does not specifically mention employers, it can be construed to include places of employment. 

Dallas and San Antonio, Texas – Paid Sick Leave. Dallas and San Antonio adopted similar paid sick and safe time ordinances, which take effect as to many employers on August 1, 2019.32 (The ordinances’ obligations do not kick in until August 1, 2021 for employers with 5 or fewer employees.) The laws cover all private employers, but leave accrual is capped based on an employer’s size: employers with more than 15 employees at any time during the preceding year must provide 64 leave hours annually, while smaller employers must provide only 48 hours.

Employees who perform at least 80 hours of work in a year in the pertinent city are covered, and they accrue at least one leave hour for every 30 hours worked in that city. Leave must accrue in whole-hour units unless the employer has a written policy providing for accrual in fractions of an hour. Leave can be used for absences due to an employee or family member’s illness, injury, or health condition, including preventive care. If an employee or family member is a victim of stalking, domestic abuse, or sexual assault, leave can also be used for medical reasons, to relocate, to obtain services from a victim services organization, and to participate in legal proceedings.

Austin was the first city in Texas to adopt such an ordinance, but that law was promptly challenged in court, and its implementation remains stayed pending the outcome of the litigation. Meanwhile, Texas state lawmakers introduced multiple bills this legislative term seeking to overturn the municipal leave ordinances and preempt local governments from mandating employee benefits. While those pending legal proceedings are likely to affect the similar paid sick laws adopted by all three cities, Dallas and San Antonio seem prepared to roll out and enforce their ordinances on August 1 as scheduled.

Vermont

Criminal Conviction Expungement. Vermont has amended its statute concerning expunged and sealed criminal history records. The statute provides that a person whose criminal history record is expunged or sealed by court order must be treated as if he or she has never been arrested, convicted, or sentenced for the offense. Under the amended law, employers are prohibited from requiring that an applicant disclose an expunged or sealed criminal record. In response to such an inquiry, the person may respond simply that “no criminal record exists.”

Virginia

Amendments to the Virginia Minimum Wage Act. Virginia has updated which jobs are exempt from the Minimum Wage Act. Effective July 1, newsboys, shoe shine boys, ushers, doormen, concession attendants, and cashiers in theaters must be paid minimum wage. Babysitters working fewer than 10 hours per week are still exempt from the minimum wage requirements, but babysitters working 10 or more hours a week will fall under the minimum wage, as do caddies on golf courses.

Data Security Notifications. Virginia has expanded the definition of personal information, as related to data security notifications, to include passport numbers and military identification numbers. The definition continues to cover Social Security numbers, driver’s license numbers, and financial account information and passwords. The change is effective July 1.

Insurance for Small Employers. The definition of “small employer” was recently updated in Virginia as it relates to group health insurance coverage. As of July 1, to determine whether a business is a small employer with between one and 50 employees, the count will include any worker under contract to perform a service for remuneration. The measure also clarifies that employers are not required to provide more than one health insurance plan, regardless of the number of employees they employ.

Personnel Files. Virginia has mandated that employers provide certain employment records within 30 days of a written request from an employee or an employee’s attorney. The employer may charge a reasonable fee for these copies. Employers are allowed to withhold the records if the employee’s treating physician or psychologist states that releasing the records is likely to endanger the life or safety of the employee or another person. If an employer fails to comply with the records request, a subpoena may be issued and the court may award damages to the employee for all expenses.

Sexual Assault Nondisclosure Agreements. Virginia will soon prohibit employers from requiring employees or prospective employees to sign, as a condition of employment, nondisclosure agreements regarding incidents of sexual assault. Such nondisclosure agreements will be considered void as against public policy.

Workers’ Compensation. Virginia has amended its workers’ compensation law to provide for automatic tolling of the two-year statute of limitations period for employee claims, in certain situations. Triggers for the tolling include when an employer is notified of a compensable injury on the job and has paid compensation or wages during the employee’s incapacity or if an employer fails to submit an accident report to the Virginia Workers’ Compensation Commission. If an employer provides medical services or wages as part of workers’ compensation, then the toll runs until the last day compensation is provided, if that compensation occurs more than six months after the date of the accident. If an employer failed to file a report with the Commission, the statute of limitation is tolled until the employer submits the first report of the accident.

Washington

Accommodation to Express Breast Milk. A new Washington law broadens the meaning of “pregnancy-related health condition” to include the need to express breast milk. The definition of “reasonable accommodation” was also amended to specifically include break time and a private location for the expression of breast milk. For up to two years following childbirth, an employer is required to provide a private location, other than a bathroom, for a woman to express breast milk. If there is no private space that meets this requirement, the employer must cooperate with the employee to come to a workable location and schedule. July 28 is the effective date for this measure.

Domestic Violence Resource Poster. Washington has created a posting requirement for employers that takes effect July 28. The Washington Employment Security Department will create a poster, which must be customized by employers to include the names of community resources regarding domestic violence. The notice must be posted conspicuously, where other employment notices are posted.

Equal Pay & Salary History. As of July 28, Washington employers with 15 or more employees are precluded from inquiring into an applicant’s salary history.33 The law permits employers to confirm an applicant’s wage or salary history if an applicant voluntarily discloses it, or after an employment offer has been made. Employers are also required to provide the minimum wage or salary for a position if an applicant requests it. The law additionally creates a system for administrative complaints for employees alleging a violation and grants individuals a private right of action with a three-year limitations period.

Long-Term Care Employment Tax. Washington has established the first state program in the nation to offer workers access to long-term care insurance benefits. The long-term care insurance program is funded through a wage-based payroll tax, which is initially set at 0.58% of an employee’s wages and will begin on January 1, 2022, although the measure goes into effect on July 28. Employers must collect premiums through payroll deductions and submit collections to the state employment security department. Employees with existing long-term care insurance are exempt from the premiums.

Paid Family and Medical Leave Amendments. Amendments will clarify and update several definitions in Washington’s family and medical leave law. The amendments go into effect on July 28, and explain how to determine what is considered wages and remuneration for purposes of calculating premiums and payment of benefits.

Paid Sick Leave Under a CBA. Washington has exempted construction workers covered by collective bargaining agreements from the state’s paid sick leave law in certain circumstances. The exemption will apply, beginning July 28, if: (1) the union signatory for the collective bargaining agreement is an approved referral union program authorized by Washington state law; (2) the agreement establishes equivalent sick leave provisions meeting state law requirements; and (3) the paid sick leave law requirements are clearly and expressly waived in the bargaining agreement.

Panic Buttons for Adult Entertainers. Effective July 28, adult entertainment establishments in Washington must provide a panic button in each room in which an entertainer may be alone with a customer, as well as in bathrooms and dressing rooms.34 An entertainer may use the panic button if the entertainer has been harmed, reasonably believes there is risk of harm, or there is another emergency in the entertainer’s presence. In these circumstances, he or she may cease work and leave the immediate area to await the arrival of assistance. The law also requires adult entertainment establishments to record accusations they receive that a customer has committed an act of violence, including assault, sexual assault, or sexual harassment towards an entertainer. Entertainer training requirements will apply beginning in 2020.

Payment of Indebtedness. Washington amended its law, effective July 28, concerning wage payments to deceased employees. Among other things, the law requires an employer to pay up to $10,000 of indebtedness to a family member of a deceased employee, up from $2,500. The amendments also spell out which family members may receive such payments, and in what circumstances.

Workers’ Compensation Records. Washington added a penalty provision to the state workers’ compensation law, which applies if an employer reveals information in a claim file concerning an employee’s mental health condition or treatment to someone other than an authorized representative of the employee. Beginning July 28, employers will be assessed a $1,000 civil penalty for each such disclosure violation.

West Virginia

Criminal Conviction Expungement. West Virginia amended its laws related to criminal record expungement, effective June 7. Many of the changes concern procedures for individuals seeking expungement; ultimately, if a court grants a petition for expungement, it is considered that the criminal matter never happened. As a result, an individual with an expunged record need not disclose that criminal history on an employment or credit application. The amendment adds certain exceptions, however. For example, employers will be entitled to conviction history information for applicants seeking jobs in law enforcement or if otherwise required to obtain a criminal history record check by state law.

Wyoming

Child Labor. Wyoming has amended its penalties for violations of the child labor laws to cap the potential fine at $750.00. The provision also clarifies that child labor laws do not prohibit a parent or guardian who is managing a nonhazardous family business from employing a child under 14 years old outside of school hours.

Equal Pay Penalties. Wyoming has also updated its penalties for equal pay violations. Previously, each violation could incur a penalty of up to $200. This penalty has been raised to a maximum fine of $500 per violation. The potential prison sentence for a willful violation also has been amended, from a range between ten and 180 days to not more than six months in prison.

Multiple Employer Welfare Arrangements. A new law in Wyoming creates an insurance licensure requirement for multiple employer welfare arrangements. The licensure fee is $500 annually and requires documentation to establish that the provider meets either federal law or Wyoming requirements of the Small Employer Health Insurance Availability Act. “Multiple Employer Welfare Arrangements” provide medical benefits to the employees of two or more employers or two or more self-employed individuals that meet a commonality of interest test, including association health plans.

*****

Between the cookouts and fireworks, employers should find time to consider upcoming developments in any jurisdiction in which they operate—and plan for prompt compliance. If you have any questions about these new laws, please contact your attorney. Littler’s Workplace Policy Institute will continue to monitor legislative and regulatory developments at the state and local levels.


See Footnotes

1 Libby Henninger, Sebastian Chilco, and Corinn Jackson, WPI Wage Watch: Minimum Wage, Tip, and Overtime Developments (May Edition), WPI Report (June 4, 2019).

2 See Katherine Suttle Weinert, Alabama Enacts Pay Equity Law, Littler ASAP (June 13, 2019).

3 Eva C. Madison, What New Employment Laws Were Enacted in Arkansas?, Litter ASAP (Apr. 29, 2019).

4 Id.

5 Id.

6 Id.

7 Id.

8 Id.

9 See Libby Henninger, Sebastian Chilco, and Corinn Jackson, WPI Wage Watch: Minimum Wage, Tip, and Overtime Developments (May Edition), WPI Report (June 4, 2019).

10 See Zoe Argento, Philip Gordon, and Adrienne Scheffey, Colorado Limits Inquiries About Applicants’ Criminal History, Littler Insight (June 12, 2019).

11 See Jay Inman, Kentucky Enacts New Arbitration Law, Littler ASAP (Mar. 27, 2019).

12 For discussion see, Michael D. Hornback, Kentucky Enacts Pregnant Workers Act, Requiring Reasonable Accommodations for Pregnant and Lactating Employees, Littler ASAP (Apr. 18, 2019).

13 See Alexandra Hemenway, In Step with National Trend, Maine Passes Salary History Ban, Littler ASAP (Apr. 22, 2019).

14 See Joe Weiner, Minnesota Wage Theft Bill with New Employer Requirements Takes Effect July 1, Littler Insight (June 11, 2019).

15 Id.

16 Id.

17 Id.

18 See Alexandra Hemenway and Dylan Long, Kansas City, Missouri Joins National Movement to Ban Salary History Inquiries, Littler ASAP (May 31, 2019).

19 See Rick Roskelley and Sandra Ketner, Nevada Expands Remedies Available for Employment Discrimination Claims, Littler ASAP (May 24, 2019).

20 See Alison Andolena and Keith Rosenblatt, More Family Time and Money: New Jersey Expands its Family Leave Entitlements, Littler Insight (Feb. 27, 2019).

22 Id.

23 Id.

24 Id.

25 Id.

26 Id.

27 Id.

28 See John Bauer and Kelly Spina, Suffolk County Set to Become the Fourth New York Jurisdiction to Ban Salary History Inquiries, Little ASAP (Dec. 10, 2018).

29 See Jill Lowell, Sanjay Nair and Sebastian Chilco, Westchester County, NY Enacts Standalone Paid “Safe” Time Ordinance, Littler ASAP (May 10, 2019).

30 See Dale L. Deitchler and Nancy Delogu, In Oklahoma, Medical Use of is Marijuana OK, but Employers Now Have Enhanced Rights to Act, Littler ASAP (Mar. 20, 2019).

31 The law includes additional components that take effect in 2020, including significant restrictions on the use of nondisclosure and nondisparagement agreements and a requirement for employers to implement written antidiscrimination policies.

32 For more details on these laws, see Melissa J. Ackie and Luke MacDowall, Dallas Joins Austin and San Antonio in Mandating Paid Sick Leave in Texas, Littler Insight (Apr. 29, 2019), and Melissa Ackie and Sebastian Chilco, Texas Two-Step: San Antonio Joins Austin in Mandating Paid Sick and Safe Leave; Then Court Enjoins Austin Law from Taking Effect During Appeal, Littler Insight (Aug. 21, 2018).

33 See Breanne Martell and Alexandra Hemenway, Washington Amends its Equal Pay Law to Enact Salary History Ban and Require Disclosure of Salary Ranges, Littler ASAP (May 16, 2019).

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.