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.
As Independence Day approaches, only three states are in active session: California, Massachusetts, and New Jersey. Roughly a dozen other states are in recess for several months, while the rest have officially adjourned for the year. Those states that are still considering bills for 2018 have advanced several labor and employment-related measures governing sexual harassment, discrimination, privacy and medical marijuana, among other areas. This month's State of the States highlights those bills that have made their way to a governor's desk, could be headed in that direction, or represent continued legislative trends.
Protected Time Off
Protected time off continues to be a popular legislative topic. Massachusetts and Pennsylvania both considered new paid sick leave laws, while Seattle and New York looked at revising their standards governing paid leave.
A new Massachusetts law will require all private Massachusetts employers to provide covered individuals with paid family and medical leave.1 The new leave will be funded by a payroll tax, and the law will create a new state agency, the Department of Family and Medical Leave, to manage the process of issuing payments to covered individuals.
In Pennsylvania, a newly introduced bill, HB 2531, would provide mandatory employer-paid sick leave for employees. The proposal would require employers to provide paid sick leave for, at minimum, the diagnosis, care, treatment, or counseling related to a physical or mental condition of the employee or the employee's family member. The employer would need to provide sick leave at the rate of one hour per every 30 hours worked, but the employer could limit the use of paid sick leave to seven days per year.
Seattle, Washington’s Office of Labor Standards (OLS) revised its rules concerning the Paid Sick and Safe Time (PSST) Ordinance.2 Notable revisions address who is a covered employer and employee; using, verifying and documenting leave; calculating the rate of pay when leave is used; employer notice and posting requirements; and how the PSST Ordinance interacts with other Seattle laws.
In New York, SB 8380, which has cleared both legislative chambers, would authorize paid family leave for bereavement beginning in 2020. To utilize the bill's proposed paid leave for bereavement, the employee would have to supply the family member's death certificate. New York's legislature is now in recess until 2019, so the fate of this bill is uncertain.
As security breaches increase in frequency, states have responded by passing legislation to enhance the privacy rights of citizens.
California has responded to the looming loss of privacy and control over one’s own personal information with the Consumer Privacy Act of 2018 (AB 375). The act requires that businesses that collect personal data from users, customers, or clients respond to requests for that personal information by users who had their data collected; such reports must be provided by businesses at no charge to the consumer. “Business” under the act is defined to include companies with annual gross revenue exceeding $25 million; that maintain information on over 50,000 consumers; or that derive more than half of their annual revenue from the sale of personal information. There is concern that the legislation is overbroad, potentially conferring rights to employees through their employers regarding their personal information.
On the opposite coast, New Hampshire focused on a different type of privacy: the privacy of one’s own body. The state enacted a bill (HB 1372) prohibiting implantation of subcutaneous identification devices in individuals. A subcutaneous identification device is any device placed under the skin that could identify an individual. Anyone who requires an individual to get a subcutaneous identification device could be liable for a civil penalty of no more than $10,000 or $1,000 per day that the violation continues. Individuals who are implanted with a subcutaneous device can bring a civil action for damages. The law will go into effect on January 1, 2019.
Discrimination and Harassment
In the wake of the #MeToo movement, several states reacted by introducing anti-discrimination and harassment bills.3 It is therefore no surprise that multiple states have been making progress in moving these measures through their legislatures.
California alone is considering at least five different anti-discrimination and anti-harassment bills. Included in California’s spate of proposals is a bill that would allow employers to disclose that they fired an employee for engaging in sexual harassment (AB 2770), another that would require employers to retain records of sexual harassment for 10 years (AB 1867), a proposal to extend to three years the filing period for complaints of unlawful employment practices with the Department of Fair Employment and Housing (AB 1870), a prohibition on nondisclosure agreements in employment contracts that cover instances of sexual harassment (AB 3080), and a bill protecting employees who take time off due to sexual harassment from retaliation (AB 3081).
California was not the only state to consider new discrimination-related bills in June. One category of new bills considered in other states would expand the class of people who are covered by discrimination statutes. Another category would broaden what is considered unlawful discrimination under state law. New Hampshire and Pennsylvania considered bills in the first category.
The Granite State enacted a bill (HB 1319) that amends its law against discrimination to include gender identity in the list of protected classes. That new law will take effect on July 8, 2018. In Pennsylvania, a bill (HB 2475) would add interns and volunteers to the protected classifications under the Pennsylvania Human Relations Act. The measure would require employers to adopt written policies for preventing harassment, discrimination, and retaliation as well as keep records of said policies for a minimum of three years.
Regarding expanding the scope of what constitutes discrimination, Michigan lawmakers introduced a bill (HB 6217) that would prohibit employment discrimination based on an individual's ethnic hairstyle.
Employment contract provisions were another focus of anti-harassment and discrimination legislation in June. A bill (SB 121) that has cleared New Jersey's upper chamber would prohibit provisions in employment contracts that waive a right or remedy relating to a claim of discrimination, retaliation, or harassment. The New York assembly approved another bill (AB 10461) that would prohibit provisions requiring mandatory arbitration of discrimination and harassment claims, prohibit harassment based upon a protected classification, and establish both a model policy regarding the prevention of discrimination and a model training program to prevent discrimination in the workplace. As noted, however, the New York legislature is now in recess, so it is uncertain whether this bill will progress.
The momentum behind pay equity legislation shows no signs of abating. Earlier in 2018, New Jersey and Washington State enacted laws to strengthen their equal pay statutes.4 In June 2018, California and Illinois both promoted pay equity legislation.
A California bill (SB 1284) would require an employer that is incorporated under the laws of California with 100 or more employees to submit a pay data report to the Department of Industrial Relations. Under the proposal, the pay data reports would contain information about the number of employees by race, ethnicity, and sex in set categories of employment (executive, sales, etc.). These reports would be submitted on or before September 30, 2019, and on or before September 30 each year thereafter. This bill has cleared the state's upper legislative chamber, and is currently in committee.
An Illinois bill (HB 4743) would provide that no employer may discriminate between employees by paying wages to an African-American employee at a rate less than the rate at which the employer pays wages to other employees for the same or substantially similar work. This bill has passed both Illinois legislative bodies, and is before Governor Bruce Rauner.
Joint Employment and Freelance Workers
The issues of joint employment and freelance worker pay were taken up in June by Ohio and New Jersey, respectively. In Ohio, HB 494, which has cleared the state's lower legislative chamber, addresses the franchisor-franchisee relationship. The bill would clarify that a franchisor is not the employer of a franchisee or the franchisee’s employees for purposes of state minimum wage, overtime, bimonthly pay, workers’ compensation, unemployment compensation, or income tax law.
New Jersey's assembly passed a bill (AB 1526) that would regulate how freelance workers are paid. The bill would require freelance workers and clients to reduce the terms of their agreement to writing and would obligate the client to keep such information on file for six years and make this document available to the Commissioner of Labor and Workforce Development upon request. The bill allows any freelancer to file a complaint with the commissioner if the client fails to pay the freelancer according to their agreement.
In June, more states attempted to revise their policy on the use of marijuana. New Jersey introduced bills (SB 2702, 2703) that would legalize recreational marijuana for individuals age 21 and older and permit the state to tax the sale of marijuana. Another New Jersey bill (AB 10) would prohibit employers from retaliating against employees or applicants who are using marijuana for medicinal purposes.
Meanwhile, Oklahoma citizens voted in June to legalize the use of marijuana for medicinal use. This approved ballot initiative adds Oklahoma to the list of 29 other states that have legalized medical marijuana.
Philadelphia is floating an ordinance that would require retail, hotel, or food services employers to provide fair workweek employment standards for certain employees, including but not limited to reasonable notice of schedules, rest time between shifts, and opportunities for additional hours. So-called "predictive scheduling" legislation is another relatively recent trend that is worth watching, particularly in the retail and service industries.
Although the summer is typically a slow legislative period, some states—notably California—will remain active though September. We will continue to monitor legislative and regulatory movements at the state and local levels, and report on any significant developments. For an update on notable wage and hour-related news, see the WPI's June edition of Wage Watch.5
1 See Chris Kaczmarek and Alice Kokodis, Massachusetts Increases Minimum Wage, Eliminates Premium Pay For Sunday Work, And Enacts New Paid Leave Program, Littler ASAP (June 29, 2018).
2 See James Zissler and Sebastian Chilco, Revised Seattle Paid Sick & Safe Time Rules Give Employers Limited Time to Comply, Littler Insight (June 26, 2018).
3 See Helene Wasserman, From Settlement Disclosures to Retaliation: A Summary of Sexual Harassment Legislation in 2018, Littler Insight (May 21, 2018).
4 See Breanne Martell and Dan Thieme, New Pay Equity Law in Washington State, Littler ASAP (Apr. 16, 2018); Jedd Mendelson, New Jersey Governor Expected to Sign Expansive Equal Pay Bill, Littler ASAP (Mar. 28, 2018).
5 Libby Henninger, Sebastian Chilco, and Corinn Jackson, WPI Wage Watch: Minimum Wage & Overtime Developments (June Edition), WPI Reports (June 29, 2018).