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.
Every year state laws and local ordinances take effect after the first of the year, and 2018 is no exception. As always, Littler’s Workplace Policy Institute (WPI) has been tracking these developments. This article discusses key labor and employment laws and ordinances that will take effect during the latter half of 2018. Laws addressing salary history inquiries and reinstatement for service members called to duty are among the most prevalent categories of legislation taking effect in the coming weeks. That said, legislatures across the country have enacted laws on a multitude of employment-related topics, ranging from data security breaches to paid sick leave. With these new laws going into effect before the end of the year, employers will need to pay special attention and make any necessary changes in their procedures and policies.
Data Security Breach Notification. Alabama became the final U.S. state to enact a security breach notification statute. The covered entities are any organizations that use sensitive personally identifying information, such as Social Security numbers or banking information. Effective June 25, all covered entities will be required under the act to implement and maintain reasonable security measures to protect sensitive personally identifying information against a breach. The act requires that any suspected security breach be followed by a good-faith and prompt investigation into the nature and scope of the breach. If a breach has occurred, the entity must provide notice to affected individuals as soon as possible, but within 45 days following discovery of the breach. The notice must be in writing and must contain the estimated date range of the breach, a description of what information was compromised, an explanation of actions taken by the entity to restore security, a description of how affected individuals can protect themselves from identity theft, and the covered entity’s contact information. If more than 1,000 people are affected, the covered entity must provide notice to the state attorney general and inform all consumer reporting agencies.
Data Security Breach Notification. Arizona amended its data security breach notification law. Effective August 3, the amendment will expand the definition of personal information to include any individual’s first and last name combined with any of the specified data elements, such as Social Security numbers, license numbers, and financial account numbers. Also included in Arizona’s definition of personal information is any individual’s user name and password, or other data that allows access to someone’s online accounts. The amendment speeds up the notification requirement to 45 days after an investigation has determined there was a breach. The written notice must include the date of the breach, the personal information included, toll-free numbers and addresses for reporting agencies, and the toll-free number, address, and website for the Federal Trade Commission or any federal agency that assists consumers with identity theft matters.
Health Insurance Preemption Law. This new preemption law bars cities, towns, and counties in Arizona from requiring an employer to provide health insurance to the employer’s employees. The Arizona legislature has identified the regulation of health insurance as a statewide, rather than a local, concern. This law will be effective on August 3.
Criminal Background Checks. Employers in Arizona will no longer be held liable for hiring employees or contracting with independent contractors previously convicted of criminal offenses. Effective August 3, introduction of evidence that an employee/contractor was previously convicted of a criminal offense will be prohibited in a negligent hiring action. Such evidence will not be prohibited, however, if the criminal offense relates directly to the nature of the work and the conduct that caused the action if the employer knew or was grossly negligent in not knowing of the conviction. The limitation on liability also does not apply to misuse of monies by the employee if the prior conviction included fraud or misuse of funds, misappropriation of funds by an attorney if previously convicted of fraud or misuse of monies, or a violent offense or the improper use of excessive force by an employee hired as a law enforcement officer or security guard.
National Guard Protections. Arizona is extending its leave and reinstatement protections from only Arizona National Guard members to members of the National Guard of any state. Arizona law prohibits employers from refusing members of the Arizona National Guard or the United States Armed Forces to take leaves of absence to comply with orders. The law also provides reinstatement protections. Effective August 3, these protections will extend to members of the National Guard of any state. The statute clarifies that members of the United States Armed Forces Reserves or the National Guard ordered to active duty or training will be afforded the protections provided in the federal Soldiers and Sailors Relief Act of 1940 and the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).
National Origin Discrimination. California has finalized a new rule expanding national origin discrimination protections under the state Fair Employment and Housing Act (FEHA). Under FEHA, employers with five or more employees are prohibited from discriminating on the basis of national origin, among other protected classifications. The new rule revises the meaning of “national origin” to include an individual’s or ancestors’ actual or perceived (1) physical, cultural, or linguistic characteristics associated with a national origin group; (2) marriage to persons of a national origin group; (3) tribal affiliation; (4) membership in an organization identified with or seeking to promote the interests of a national origin group; (5) attendance in schools or religious institutions typically used by persons of a national origin group; and (6) name associated with a national origin group.
The regulations also create additional protections for discrimination based on national origin. Specifically, the rule prohibits creating language restrictions, such as an English-only rule, unless the restriction results from business necessity, is narrowly tailored, and employees are notified of the details of the restriction. Similarly, employers cannot discriminate against an employee for an accent associated with a national origin group, or based on the employee’s English proficiency, unless English proficiency is justified by business necessity. An employer may not inquire or attempt to discover an applicant’s or employee’s immigration status, unless necessary to comply with federal law. Harassment based on the individual’s immigration status is also prohibited. Employers cannot place employees in certain geographical areas, facilities, or positions based on national origin, or impose height or weight requirements that may have a disparate impact on the basis of national origin. Finally, employers may not retaliate against any employee for opposing discrimination on the basis of national origin, including by filing a complaint. This new rule takes effect on July 1.
San Francisco – Pay History Prohibition. A new ordinance in San Francisco will ban employers from considering the current or past salary of an applicant in determining whether to hire an applicant or what salary to offer an applicant. Further, employers are barred from asking applicants about their current or past salary or disclosing an employee’s salary history without the employee’s authorization. This ordinance will go into effect on July 1.
Data Security Breach Notification. Colorado joins the list of states addressing data security breach notifications by covered entities that maintain, own, or license personal identifying information in the course of business, vocation, or occupation. The new legislation, effective September 1, amends the state’s breach notification statute to expand the list of protected personal information to include student, military, or passport identification numbers, medical information, health insurance identification numbers, biometric data, and a username combined with a password or security questions and answers. The amendment also requires that notification of a security breach happen within 30 days, as opposed to the previous “as soon as possible” standard. Under the amendment, the notice given to Colorado residents must include: (1) the date of the security breach; (2) a description of the compromised personal information; (3) contact information for the covered entity; (4) toll-free numbers, addresses, and websites for consumer reporting agencies and the federal trade commission; (5) a statement that the resident can obtain information from the FTC and consumer reporting agencies about fraud alerts and security freezes; and (6) if the acquired data includes information that would allow access to an online account, a statement directing the person to promptly change the password and security questions and answers giving access to the account.
The amendment also creates policy requirements. A covered entity maintaining documents containing protected information must create a written policy for the destruction of personal information after that information is no longer needed. Further, the amendment requires that covered entities implement and maintain reasonable security procedures appropriate to the nature of the personal identifying information and reasonably designed to protect the information.
Organ Donor. The Living Organ Donor Support Act was enacted in Colorado and will go into effect on August 8. The act provides an incentive for employers to grant employees leave for organ donation. For any income tax year between January 1, 2020 and January 1, 2025, qualified employers will receive a tax credit of 35% of the employer’s expenses incurred in paying an employee during his or her leave for organ donation, and the cost of any temporary help required during the employee’s leave. Eligible leave may not exceed ten working days or the hourly equivalent of five working days per employee. If the employee utilizes annual leave or sick days to cover the period of organ donation, then that employee’s leave is not eligible for the tax credit.
529 Plan Contribution Tax Credit. Colorado has passed a new law, effective August 8, to encourage employers to make contributions to an employee’s 529 qualified state tuition program accounts. These plans help parents to pay for a beneficiary child’s education by not subjecting the earnings contributed into the 529 plan to federal or state tax. The law allows employers that contribute to an employee’s 529 plan to take a state income tax credit of 20% of the contribution amount. Employers can claim only $500 per employee per year with this tax credit. The credit is temporary, and will only be available from January 1, 2019 to January 1, 2022.
Longmont – Smoking at Work. Due to public health, safety, and welfare concerns, the city of Longmont has passed an ordinance to prohibit smoking in enclosed areas open to the public, certain congested outdoor areas, and areas constituting places of employment. Under the ordinance, smoking will include the use of electronic smoking devices. The effective date of this ordinance is August 8.
Arbitration. Connecticut has adopted the Revised Uniform Arbitration Act (RUAA). Revised House Bill 5258 codifies arbitration rules, standards, and common practices, and allows the parties to waive or modify many of them. The law addresses agreements to arbitrate and their enforceability; notice requirements; court jurisdiction and procedures before the completion of arbitration; arbitrators’ qualifications, information they must disclose, and powers; arbitration proceedings; and court proceedings after an award has been issued. The bill generally applies to agreements to arbitrate made on or after October 1, 2018.
Distracted Driving. Georgia has prohibited the use of a mobile device while operating a motor vehicle, with a few limited exceptions. Effective July 1, drivers in Georgia may not hold or support a mobile device with a part of their body or use their mobile device to write or read any text (including email), watch video, or record video. The law makes an exception for speech-to-text programs and navigation software.
Franchisee-Franchisor Employees. As of July 1, a franchisor will not be considered an employer of a franchisee or a franchisee’s employees in Idaho, with two discrete exceptions. If the franchisee or the employee of a franchisee is specifically described as an employee of the franchisor in the franchise agreement, or if the franchisor has been found by a court or another tribunal to have exercised a type or degree of control over the franchisee or the franchisee’s employee not customarily exercised by a franchisor, then the franchisor will be treated as an employer.
Non-Competes. Idaho law allows for non-competition agreements to be enforceable with several rebuttable presumptions. Effect on July 1, Idaho will remove the presumption that irreparable harm had occurred when a key employee or independent contractor was in breach of an agreement or covenant.
Marketplace Contractors. Indiana is defining the relationship between internet and smartphone-based services, which it calls marketplace platforms, and the individuals who actually provide those services, which it refers to as marketplace contractors. Effective July 1, a marketplace contractor will be treated as an independent contractor when the payment for the services of the marketplace contractor is related to performing services or other output, and the services are performed pursuant to a written contract between the marketplace contractor and the marketplace platform. This designation applies when the written contract:
- identifies the marketplace contractor as an independent contractor;
- stipulates that all or substantially all payments to the marketplace contractor are based on performing services or other output by the marketplace contractor;
- allows the marketplace contractor to work any hours or schedules he or she chooses. If the marketplace contractor elects to work specified hours or schedules, the marketplace platform may require the marketplace contractor to work those hours;
- allows the marketplace contractor to work for other parties; and
- gives the marketplace contractor responsibility for substantially all of the expenses that the marketplace contractor incurs, without reimbursement from the marketplace platform.
The new law makes a few exceptions. Services provided for public works projects, referral services of labor organizations, and organizations excluded from employment as defined in the Federal Unemployment Tax Act (FUTA) are exempted from the law’s requirements. Passenger transport services, one of the most common forms of internet and smartphone-based services that would utilize individuals who would appear to be marketplace contractors, are also exempted, as passenger transport services are separately regulated in Indiana as transportation network companies.
Alcohol Testing. Iowa law already requires any employers that conduct alcohol testing to provide employees with a written policy on the testing. The written policy must establish the alcohol concentration that violates the policy. The existing law required that the standard be no lower than .04 grams of alcohol per 210 liters of breath; the new law will lower the minimum to .02 grams. This amendment becomes operative on July 1.
Paystubs. As of July 1, Iowans may receive electronic paystubs outside their workplace. Existing Iowa paystub law required employers to mail paystubs, hand deliver them at the place of employment, or provide the means to view and print a paystub at the workplace.
Association Health Plans. The requirements placed on Multiple Employer Welfare Arrangements (MEWA) will become more lax in Iowa on July 1. The Iowa Unauthorized Insurers Act (IUIA) requires that insurance providers only conduct business within the state as authorized by statute. For a MEWA to be exempted from the IUIA, the MEWA must have existed for five years prior to 1997, and must have been established by a trade, industry, or professional association that has been in good standing for at least 10 years prior to July 1, 1997. The former requirement is being entirely removed by the new law, and the latter is being amended to require that the trade, industry, or professional association be organized and maintained in good faith with membership stability rules as adopted by the Commissioner of Insurance. (Those stability rules have not yet been issued.) The new law also requires that the annual report any MEWA must file with the United States Department of Labor must also be filed with the Commissioner of Insurance.
National Guard Protections. Effective July 1, Kentucky will provide its leave of absence and reemployment protections to members of the National Guard of any state. Previously, Kentucky provided those protections to members of the Kentucky National Guard only. These protections require employers to grant a leave of absence for employees in the National Guard to perform active duty or training, and to allow employees to return to their position with the benefits they would have received had they not been absent. The protections also allow for 21 days of military leave, during which employees must be compensated as though they had not left.
Marketplace Contractors. Similar to the new Indiana law, this Kentucky law establishes conditions under which a marketplace contractor will not be considered an employee of a marketplace platform. Under the statute, there is no employment relationship when the arrangement between the marketplace contractor and the marketplace platform meets certain requirements. Those requirements are that: (1) the parties have a contract identifying the marketplace contractor as an independent contractor; (2) the hours of work are not unilaterally proscribed by the marketplace platform; (3) the marketplace contractor may engage in another occupation or work for another marketplace platform; (4) the marketplace contractor is responsible for substantially all the expenses incurred while performing the services; and (5) the marketplace platform does not supply tools to perform the service. Unlike the Indiana law, these conditions need not be in a signed contract between the marketplace contractor and the marketplace platform. This law goes into effect on July 9.
Data Breach Notification. Amendments to Louisiana's security breach notification statute take effect on August 1, 2018. The new law, SB 361, expands the definition of "personal information" that would trigger notification requirements if compromised in a security breach to include biometric data. In addition, the amendments require that notifications be issued within 60 days after a breach is discovered.
Portland - Minimum Wage. As of July 1, Portland will raise its minimum wage to $10.90 per hour.
Sexual Harassment. Maryland has passed a law on waiver related to sexual harassment in employment contracts. The newly-enacted legislation prohibits any waiver of a substantive or procedural right to pursue a claim of sexual harassment in an employment contract. Retaliation against someone who refuses to sign any such waiver or files a notice of a violation is also prohibited. The statute requires employers to submit a survey detailing the number of settlements related to sexual harassment the employer has been involved in, the number of times the employer has paid for a settlement due to the same employee committing sexual harassment, and the number of settlements that included a confidentiality provision. This legislation will go into effect on October 1.
Hiring and Promotion Preferences for Veterans. Maryland law already allows for employers to grant a preference in hiring and promotion for eligible veterans, the spouse of a disabled eligible veteran, and the surviving spouse of a deceased eligible veteran. Under Maryland law, service members who received a certificate of satisfactory completion and were honorably discharged from the National Guard or the military reserves were eligible for this preference. Effective October 1, that law will be amended to expand the definition of eligible veteran to include members of the Commissioned Corps of the Public Health Service and the Commissioned Corps of the National Oceanic and Atmospheric Administration.
Montgomery County – Minimum Wage. Montgomery County has approved another gradual increase in the county’s minimum wage. Effective July 1, 2018, employers with 26 or more employees must pay a minimum wage of $12.50 an hour, and employers with fewer employees must pay $12.00 an hour. These minimum wage rates will increase annually, with smaller employers proceeding on a slower schedule. Employers that are tax-exempt under Section 501(c)(3), and employers that provide home health services that receive 75% of their revenues through state and federal medical programs, are also on the slower increase schedule. The goal of this legislation is to reach a $15.00 per hour minimum wage by 2020 for larger employers and 2022 for smaller employers.
Pay Equity. Massachusetts has now made it illegal for an employer to pay an employee less than another employee of a different gender for comparable work. This pay equity bill was enacted in August 2016, and is set to take effect on July 1, 2018. The updated act defines comparable work as “work that is substantially similar in that it requires substantially similar skill, effort, and responsibility and is performed under similar working conditions,” and specifically denies that job title or description is enough to establish that the work is comparable. The law creates a private right of action, and the prevailing plaintiff may recover damages for the difference between the plaintiff’s pay and the comparator’s pay, and an equal amount in liquidated damages. A successful plaintiff may also recover reasonable attorneys’ fees and costs.
This amended law provides several affirmative defenses. If the employer can show that the difference in pay is due to one of the following factors, they may not be held liable under the Act: (1) a seniority system, provided that time spent on leave due to a pregnancy-related condition and protected parental, family, and medical leave shall not reduce seniority; (2) a bona fide merit system; (3) a system that measures earnings by quantity or quality of production or sales; (4) the geographic location where the work is done; (5) education, training, or experience reasonably related to the job; and (6) travel, if a regular and necessary condition of the job.
The act also makes it unlawful for an employer to seek the salary history of any applicant for employment unless the applicant provides written consent, and an offer of employment that includes proposed compensation has been made. Similarly, employers cannot screen job applicants based on their wages, or request an applicant disclose prior wages or salary history. An employer also cannot require that employees refrain from discussing their wages, or inquiring about another employee’s wages. The Massachusetts Attorney General also published guidance on this revised pay equity law. For more detailed discussion on Massachusetts’s equal pay obligations, see this Littler article.
Job Applicants and Preemption Law. As an amendment to its preemption law, Michigan has prohibited any local governmental bodies from creating an ordinance regarding what must, can, and must not be on a job application, or part of the interview process. This amendment takes effect on June 25.
Wage Payment. House Bill 5235 amends the deadline by which employers must pay employees who earn wages paid on a regular monthly basis. Prior to the amendments, employees paid monthly had to be paid on the last day of the monthly pay period. The new law allows employers to pay employees within 15 days after the end of that monthly pay period. This extension takes effect on September 1, 2018.
Texting and Driving. Mississippi previously enacted a ban against texting and driving, which was set to expire on July 1, 2018. Rather than allowing the law to expire, the Mississippi legislature passed a permanent prohibition against driving a motor vehicle while writing, sending, or reading a text message. This version of the law does not prohibit only texting and driving, but also accessing any social networking site using a cell phone.
Military Protections. A Mississippi law, similar to new laws in Kentucky and Arizona, grants leave to members of the Armed Forces of the United States, Mississippi, or any other state, so they may perform military service or training. As of July 1, employers must reemploy a service member to a similar position with the same status, pay, and seniority upon his or her return, if the service member can provide evidence that the duty or training was completed, and if the service member remains qualified to perform the duties of the position. The protections of this act do not apply to temporary employment positions.
Veteran Hiring Preference. Missouri legislature recently passed a new law granting various rights to Missouri Veterans. Effective August 28, veterans have a right to preference in public employment, and a right to counseling and assistance from veteran’s service officers. The law also allows private, nonpublic employers to grant preference to veterans or the spouse of a disabled veteran in hiring and promoting employees.
Protected Categories. New Hampshire has amended its law against discrimination to include gender identity in the list of protected classes, as of July 8, 2018. The Granite State will prohibit discrimination based on age, sex, gender identity, race, creed, color, marital status, familial status, physical or mental disability, and national origin. An employer cannot refuse to hire, bar or discharge from employment, or discriminate against an individual in compensation or in the terms, conditions, or privileges of employment on the basis of the individual’s gender identity.
Wage Payment. Starting on July 29, 2018, employers in New Hampshire must pay their employees within 8 days after the expiration of the work week if the employee is paid on a weekly basis, or within 15 days after the expiration of the work week if the employee is paid on a biweekly basis. Senate Bill 428 amends the state’s prior requirement that employees be paid at least every 14 days.
Pay Equity. New Jersey is expanding its Law Against Discrimination (NJLAD) to enhance pay equity protections for New Jersey employees. Starting July 1, covered employers in New Jersey must not pay any of their employees who are part of a protected class less than other employees performing substantially similar work. The similarity of two positions is determined by the level of skill, effort, and responsibility required by each position. A “protected class” under the NJLAD includes far more categories than just race and sex. The NJLAD protected classes include race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, pregnancy or breastfeeding, sex, gender identity or expression, disability, and atypical hereditary cellular or blood trait.
An employer can assert as a defense that any differential in pay is due to a seniority system, a merit system, or another legitimate factor, including training, education, experience, or quality or quantity of production. The legitimate factors must be applied reasonably, explain the entire differential, and be job-related; the factor must not be a characteristic of the protected class members. The defense cannot succeed if business alternatives could prevent the differential. A prevailing employee can recover up to six years’ worth of back pay and will be entitled to treble damages. Employee rights under the NJLAD cannot be waived, nor may the statute of limitations be shortened by agreement. Littler has a detailed summary of the new law here.
Paid Sick and Safe Leave. Starting October 29, 2018, employers in New Jersey must provide employees with paid sick leave in the amount of one hour of earned sick leave for every 30 hours worked, paid at the same rate they normally earn. Employees covered by a collective bargaining agreement, or healthcare workers paid on a per diem basis, are excluded from the paid sick leave law. New Jersey employers will be obligated to display state-created posters detailing employees’ rights under the new law. Covered employees may take sick leave for their own permitted uses, or for that of a family member. Permitted uses include tending to regular checkups, taking time off in response to domestic or sexual violence (including for counseling, legal services, or relocation), and attending meetings regarding a child’s health or disability. If leave is foreseeable, the employer may require seven calendar days’ notice. Employers may not demand that employees find a replacement worker or count the leave as an absence that could result in discipline. The law protects employees from retaliation for taking leave, informing others of their rights under the law, or filing a complaint alleging a violation of the law. Click here for more detail on New Jersey’s paid sick and safe leave bill.
Sexual Harassment Protections. Included in its massive budget bill, New York passed new requirements aimed at curbing sexual harassment. Effective July 11, 2018, arbitration clauses and nondisclosure agreements that would cover sexual harassment will no longer be permissible. This law prohibits future contracts with arbitration and nondisclosure clauses and voids such provisions in existing contracts. An employee may, however, express that it is his or her preference that a nondisclosure agreement cover sexual harassment claims. To do so, the employee must be provided a 21-day waiting period and a seven-day revocation period, and then the employee may declare that they desire a nondisclosure agreement covering sexual harassment. Arbitration clauses may be upheld if they are a part of a collective bargaining agreement.
The new law will also require employers to create a sexual harassment policy and deliver sexual harassment training starting on October 9, 2018. Employers may utilize the model policy and training program created by the New York Department of Labor, or revise their own training and policies to satisfy the updated requirements. Employers also must develop a standard complaint form that employees can use to raise sexual harassment claims and must inform employees of all methods available to adjudicate a claim of sexual harassment. A summary of the changes to sexual harassment law in New York’s 2018-2019 budget bill can be found here.
New York City
Safe and Sick Time. A New York City ordinance taking effect on July 18, 2018, will address employee scheduling changes. The ordinance will allow employees to take two temporary schedule changes per calendar year related to caregiving emergencies, attendance at legal proceedings for subsistence benefits, or any situation that would be a permissible use of safe time or sick time under the New York City administrative code. The ordinance also protects employees from retaliation for appropriately requesting schedule changes.
Sexual Harassment. An ordinance addressing sexual harassment will go into effect on September 6, 2018. The ordinance will require employers to display a poster in English and Spanish detailing an employee’s rights and responsibilities under the anti-sexual harassment policies.
Protected Categories. A third ordinance that was recently passed will become operative on October 16, 2018. This ordinance clarifies that under New York City law, victims of domestic violence, sex offenses, and stalking are protected classes. While there were already numerous provisions in New York City protecting those victims, the ordinance reaffirms those individuals will be given all of the protections against discrimination afforded under Section 905 of the New York City charter.
Reasonable Accommodations. Another New York City ordinance taking effect on October 16, 2018, requires employers to engage in a cooperative dialogue with individuals who may need reasonable accommodations due to disability, pregnancy, religious needs, or due to the individual being a victim of domestic violence, sex offenses, or stalking. That cooperative dialogue must be a good-faith written or oral discussion about the person’s needs and potential accommodations that could address those needs. That dialogue must result in a written final determination that either grants or denies accommodation. The employer cannot determine that no reasonable accommodation would satisfy essential elements of the job unless it engages in the cooperative dialogue process.
Salary History. Westchester County, New York will prohibit the use of employee salary history in the hiring process starting July 9, 2018. Westchester’s regulation will make it unlawful for a potential employer to rely on, request, or seek the salary history of an applicant from a current or former employer. Similarly, an employer may not make the disclosure of an applicant’s salary history a prerequisite to an interview, further consideration, or employment. The ordinance also makes unlawful any retaliation, including refusing to hire someone, due to an applicant withholding his or her salary history.
Healthy and Safe Families and Workplaces Act. Rhode Island enacted a paid sick and safe leave law that will become effective July 1, 2018. Employers with 18 or more employees in Rhode Island must provide employees with paid sick and safe leave. Coverage does not extend to individuals not considered “employees” under the Rhode Island Minimum Wage Act or to independent contractors, federal work-study participants, or licensed nurses employed on a per diem basis. Eligible employees may use their paid sick and safe leave for many reasons, including regular checkups, care for a health condition, and leave related to domestic violence, sexual assault, or stalking. Coverage also extends to family members of employees. If leave is foreseeable, the employee must provide advance notice and must make a reasonable effort to schedule the leave at a time that does not unduly disrupt the employer’s operations. If leave is not forseeable, an employer still may require notice, but it must provide employees with a written policy with procedures for submitting such notice. The rate at which the employee using sick leave is paid must be at the same rate and with the same benefits as the employee normally earns during hours worked. For a detailed discussion of the Rhode Island paid sick leave requirements, click here.
Pregnancy Accommodation Act. South Carolina amended the South Carolina Human Affairs Law to provide accommodation to pregnant employees, or those facing medical conditions related to pregnancy. The amendment modifies the term “because of sex” or “on the basis of sex” to include “on the basis of pregnancy, childbirth, or related medical conditions.” The amendment further requires that employers must provide reasonable accommodations for pregnancy and related medical conditions, including lactation. Failing to make reasonable accommodations, denying employment or opportunities due to the individual’s need for accommodation, requiring an employee to take leave if another reasonable accommodation can be provided, and taking adverse action against an employee for requesting reasonable accommodation are considered unlawful employment practices. The amendment provides examples of reasonable accommodation, including providing more frequent breaks and private places to express milk. The South Carolina Human Affairs Commission will not require compliance until September 14, 2018. For more information on the Pregnancy Accommodation Act, click here.
National Guard Protections. Similar to other National Guard protections enacted in other states, a new amendment extends South Dakota’s reinstatement protections to members of the National Guard of any state (rather than members from only South Dakota). The statute further clarifies that if National Guard members are called to duty or to training, they are entitled to the protections provided by the federal Servicemembers Civil Relief Act of 2003 and USERRA. The act will go into effect on July 1.
Data Security Breach Notifications. South Dakota also amended its data security breach notification law. As of July 1, an information holder—which is any person or business that owns or licenses computerized personal or protected information—must disclose a discovered breach to any resident of South Dakota whose data was compromised. The relevant data includes unencrypted or encrypted data with an encryption key that contains personal or protected information alongside a person’s first and last name, such as a Social Security number, a driver’s license number, bank account information, health information, or any identification number assigned to a person by his or her employer. Protected information, which is separate from personal information, includes a username or email address combined with a password that would grant access to an online banking or financial account. If this data is compromised in a breach, the information holder must give notice.
Notice under the statute can be either written or electronic; substitute notice is acceptable if the cost of individual notice would exceed $250,000 and the breach affects over 500,000 people. Substitute notice can also be used if the information holder does not have sufficient contact information to reach all affected individuals. Substitute notice can be by email if the information holder has an email address for those affected, conspicuous posting of notice on the information holder’s website, or notification to statewide media.
The attorney general of South Dakota can prosecute any failure to disclose a data security breach as a deceptive act or practice. The attorney general can pursue civil penalties, up to a maximum penalty of $10,000 per day, per violation.
Marketplace Contractor Law. Tennessee joins Indiana and Kentucky in recently passing laws to clarify the employment relationship between marketplace contractors and marketplace platforms. Under the Tennessee version, there is a presumption that a marketplace contractor is an independent contractor and not an employee of the marketplace platform if: (1) the parties agree in writing that the marketplace contractor is an independent contractor regarding the marketplace platform; (2) the marketplace platform does not unilaterally set the hours the marketplace contractor works; (3) the marketplace contractor may utilize other marketplace platforms or engage in any other occupation or business; (4) the marketplace contractor is responsible for paying any assistant the contractor needs; (5) the marketplace platform does not require the use of specific equipment; (6) the marketplace platform does not control how the contractor performs the service through specified instructions; (7) the contract between the parties may be terminated by either party without cause; (8) the marketplace platform provides no benefits to the contractor; and (9) substantially all payments made to the marketplace contractor are based on performing services to third parties. This new classification goes into effect on July 1.
Austin – Earned Sick Leave. Austin, Texas’s paid sick leave ordinance, which affects all private employers in the city, is set to take effect on October 1. Under the ordinance, employees are entitled to one hour of earned sick time for every 30 hours worked, up to an annual cap of 64 hours for medium or large employers and 48 hours for small employers. The employee must be allowed to use the sick time as soon as it is accrued, but no earlier than the employee’s first 60 days of employment if the employee’s term of employment is at least one year. An employee can use accrued sick time for physical or mental illness or injury, preventive care, to care for an ill family member, or to handle matters related to his or her status as a victim of domestic abuse, sexual assault, or stalking.
Crime Victim Protections. Vermont’s Fair Employment Practices Act (FEPA) prohibits employers from discriminating against employees due to their race, religion, or other protected status. The recently enacted amendment to the FEPA includes crime victims as a protected category. A crime victim is a person who obtained a relief-from-abuse order, who secured an order against stalking, sexual assault, or abuse of a vulnerable adult, or who sustained physical, emotional or financial injury because of the commission of a crime. The amendment requires employers to provide eligible crime victims (employed for at least six months for an average of 20 hours per week) with unpaid leave to attend legal proceedings related to the crime. During the employee’s leave, the employer must continue to provide benefits at the level and conditions of coverage that would have been provided if the employee had not taken leave. At the end of such leave, the employer must offer the employees the same or comparable jobs with the same benefits, compensation, and seniority that the employees possessed before they took leave. If, however, the employer gave notice that employment would terminate or can show that during the leave the employee’s job would have been terminated or the employee would have been let go for reasons unrelated to the leave, the employer will not be required to offer the employee the same or a comparable position. This amendment will become effective on July 1.
Nondisclosure Agreements and Sexual Harassment. The FEPA was further amended to restrict employers from requiring employees or prospective employees from signing an agreement or waiver that would prevent the disclosure of sexual harassment or waive any substantive or procedural rights or remedies available in relation to a claim of sexual harassment. The amendment also requires settlement agreements related to sexual harassment to state that they do not prohibit the employee from filing a complaint of sexual harassment with the attorney general, participating in an investigation into a claim of sexual harassment conducted by the attorney general, complying with a request for discovery related to a civil trial related to a claim of sexual harassment, or exercising any right to engage in activities with other employees to conduct collective bargaining. Settlement agreements related to sexual harassment under the amendment cannot prevent the employee from continuing to work for the employer or obligate the employee to waive any rights or claims that may arise after the settlement agreement.
The amendment also drastically expands enforcement provisions related to sexual harassment. The attorney general or a designee may enter and inspect any place of business, question any person authorized to receive or investigate complaints of sexual harassment, and examine the employer’s documentation related to the prevention of sexual harassment after the attorney general has given 48 hours’ advance notice that the inspection would occur. If the attorney general finds that the employer’s workplace is not free from sexual harassment, the employer may be required to provide annual education and training to all employees for a period of up to three years. This amendment will be effective July 1.
Recreational Marijuana Use. Vermont, as of July 1, 2018, will permit the recreational use of marijuana, but not commercial production and sale. The new Vermont law eliminates existing civil penalties related to the possession of up to two ounces of cannabis and removes criminal penalties related to the cultivation of six marijuana plants by adults 21 years of age or older. The law also creates civil penalties for using cannabis while driving.
Salary History Inquiries. Vermont passed a salary history ban, which goes into effect on July 1, 2018. The statute prohibits an employer from asking an applicant about his or her compensation with any current or former employers. Employers may not require compensation history to satisfy minimum or maximum criteria for employment or utilize that information to determine whether to interview an applicant. The law creates exceptions if the prospective employee voluntarily discloses salary history. In that case, the employer may seek to confirm, or request that the applicant confirm, the disclosed salary after making an offer of employment. Similarly, nothing in the law prohibits an employer from asking an applicant about his or her salary expectations. For more detail on Vermont’s salary history inquiry law and other recent salary history inquiry laws, click here.
Gender-Free Restrooms. The Green Mountain state also enacted a law on single occupancy restrooms. As of July 1, single-user restrooms in public buildings or places of public accommodation must be available to persons of any gender. Single-user restrooms are defined to include single-occupancy restrooms with at least one water closet and an outer door that can be locked by the occupant. The restrooms must be designated for use by not more than one occupant at a time or for family or assisted use. The signage on the door of such single-user bathrooms must not identify any specific gender.
Notary Services. A new Virginia law, effective July 1, allows employers to require a notary employee to pay to his or her employer any notary fee received for notary service provided during the course of the employee’s employment.
Continuation of Benefits. Virginia has amended its law regarding the continuation of health insurance benefits after termination of employment. As of July 1, employees discharged for gross misconduct will no longer be entitled to a continuation of their health insurance benefits. Gross misconduct includes positive drug tests, false statements about criminal convictions, any violation of the law that causes the employee to be sanctioned or lose licensure, chronic absenteeism, loss or failure to renew a required license or certification, or conduct showing a disregard for the employer’s workplace standards and policies.
National Guard Reemployment. Virginia also amended its law on one of the more popular topics of legislation this year: National Guard reemployment. Virginia law previously provided that members of the Virginia National Guard, Virginia Defense Force, or Virginia residents who are members of the National Guard of another state have the right to take leave without pay if they are called to duty or training. This amendment clarifies that the service member must have been employed in Virginia to enjoy reemployment rights. The amendment will go into effect on July 1.
Civil Air Patrol Leave. A related act applies Virginia’s military leave law to members of the Virginia Civil Air Patrol. Effective July 1, members of the patrol may take a leave of absence, not to exceed 10 days, when called for training, or to a leave of absence, not to exceed 30 days, if required to partake in an emergency mission. Employers can treat this leave as unpaid, but the employer cannot require an employee to exhaust other leave to which the employee is entitled before taking Civil Air Patrol leave. The employee must certify that he or she has been called for duty by the Civil Air Patrol, and that the call has been authorized by the United States Air Force, the governor, or a department, division, agency, or political subdivision of the state.
Garnishments. Pursuant to this amendment, effective July 1, Virginia law increases the amount that can be taken from an employee’s paycheck for garnishment to 25% of an employee’s disposable earnings. If an employee "makes minimum wage or less"1 for the week’s earnings, the employee may keep 40 times the minimum hourly wage before garnishment.
Income Withholding Orders. Virginia repealed a 1993 law that required employers to ask employees if they have an income withholding order. If it was revealed that the employee owed child support that was to be withheld, the employer was required to begin withholding the requisite amount from the employees’ paychecks under the court order of child support. The repeal will be effective on July 1.
Seattle – Labor Standards Investigations. Seattle passed an ordinance expanding the power of the Director of the Office of Labor Standards to investigate anyone suspected of violating any of Seattle’s labor standard ordinances, effective July 1. The labor standard ordinances include the Paid Sick Time and Safe Time Ordinance, the Fair Chance Employment Ordinance, the Minimum Wage Ordinance, the Wage Theft Ordinance, the Secure Scheduling Ordinance, and any other ordinance that gives the Office of Labor Standards the power to investigate violations and promulgate rules. The Director is given significant deference on how to conduct an investigation, including the ability to call settlement conferences, perform interviews, submit discovery requests, and issue subpoenas. Failure to comply with the Director’s requests within 10 days gives the Director the right to enter a default determination and order that the accused has violated the ordinance. The ordinance allows the Director to determine unpaid compensation that must be paid and order liquidated damages, fines, and penalties against a party found to have violated the law.
Surety Bond and Security Requirements. Wyoming has amended its surety, bond, or security requirements. Previously, nonresident employers that paid over $10,000 in wages a month, or $120,000 a year, had to file a surety bond or other security with the Director of the Department of Workforce Services. Effective July 1, that threshold will decrease to $4,000 in wages in any month. The amendment also requires the bond to be $8,000, plus an additional $2,000 for each $1,000 dollars that the expected wages per month exceed $4,000, up to a cap of $20,000 in expected wages per month. For wages exceeding $20,000, the same formula above applies, plus $1,000 for each additional $1,000 of expected wages.
Between the cookouts and fireworks this July, employers should find time to consider upcoming developments in any jurisdiction in which they operate. Later this year, Littler’s Workplace Policy Institute will publish a roundup of new laws taking effect in 2019.
1 If the employee "makes the minimum wage or less” is the actual wording of the statute, which curiously includes a reference to employees being paid less than the minimum wage.