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.
While the partial federal government shutdown has kept Congress at an impasse, it should be business as usual at the state and local levels in January. At least 46 states and the District of Columbia will be in session by the end of the month. While it is impossible to predict what newly elected state lawmakers will introduce, it is a safe bet that many of the 2018 issues and trends that served as midterm election talking points will find their way into 2019 bills. Legislation to address sexual harassment, mandatory arbitration, paid leave, predictive scheduling, and background checks, among other hot topics, are expected to reemerge the first quarter of the year. Whether the results of the 2018 midterm elections will expedite or hinder such bills' progress remains to be seen. In the meantime, this month's State of the States reviews those measures that advanced in the final month of 2018.
Westchester County, New York is the latest jurisdiction to enact a ban-the-box law. The Fair Chance to Work ordinance prevents employers in Westchester County from inquiring about a potential hire's arrest or criminal conviction record in an employment application, or from posting job advertisements that discourage those with criminal records from applying. After the individual has submitted a job application, the employer may inquire about an arrest or conviction record. Before making any decisions based on this inquiry, however, the employer must perform an analysis of the applicant’s criminal record and other factors under Article 23-A of the New York State Correction Law, which requires employers to evaluate qualified job seekers and current employees with conviction histories fairly and on a case-by-case basis. The applicant will then have at least three business days in which to respond, during which time the employer must keep the position open.
Relatedly, the New York City Council is considering an ordinance that would extend employment protections for applicants and employees with pending criminal cases by explicitly requiring an employer to make an individualized assessment of the relationship between the charged conduct and the job.
In other background check news, Suffolk County, New York passed a law making it unlawful for employers and employment agencies with four or more employees to inquire about a job applicant’s salary history or otherwise to rely on such information in setting a new employee’s compensation.1 The A Local Law to Restrict Information Regarding Salary and Earnings (“RISE Act”) is similar to measures that have already been enacted in New York City, Westchester County, and Albany County, New York.
A similar ordinance was introduced in Cincinnati, Ohio. The proposed ordinance would prohibit employers from inquiring about an applicant's salary history; screening applicants based on their current or prior wages, benefits, other compensation, or salary history; relying on salary history in deciding whether to offer employment; and refusing to hire an applicant for not disclosing his or her salary history.
Independent Contractors and Joint Employment
Earlier this year, in Dynamex Operations West, Inc. v. Superior Court of Los Angeles, the California Supreme Court adopted a modified “ABC” test for determining whether an individual is an employee under the state wage orders. A recently introduced bill (AB 5) would codify that decision under state law. By contrast, another California bill (AB 71) would instead require a determination of whether a person is an employee or an independent contractor to be based on a specific multifactor test, including whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired, and other identified factors.
Ohio has enacted (HB 494), amending various sections of the state code to clarify a franchisor is not the employer of a franchisee or employee of a franchisee for purposes of the Minimum Fair Wage Standards Law, the Bimonthly Pay Law, the Workers' Compensation Law, the Unemployment Compensation Law, and the Income Tax Law. In each statutory section, the law is amended to specify that an "employer" does not include a franchisor with respect to its relationship to a franchisee or the franchisee's employees unless the franchisor agrees, in writing, to assume such a role, or a court determines that the franchisor exercises sufficient control over the franchisee/franchisee's employees beyond that necessary to protect the franchisor's trademark or brand.
Protected Time Off
On December 14, 2018, Michigan Governor Rick Snyder signed Senate Bill 1175, which makes significant changes to the state's newly created paid sick and safe time law.2 Among other changes, the Paid Medical Leave Act reduces the scope of the law's coverage from all private employers to those with 50 or more employees. The bill also exempts executive, administrative, professional, and outside sales employees, as well as individuals covered by a collective bargaining agreement, those whose primary work location is outside Michigan, and various transportation industry employees from the law's coverage. Additionally, the accrual rate has changed from one hour of paid leave for every 30 hours worked to every 35 hours worked.
A new ordinance under consideration in Albuquerque, New Mexico, would require employers in the city to allow their employees to accrue one hour of paid leave for every 30 worked, up to 56 hours of paid sick leave per year. The measure is currently in committee.
Following the midterm elections, two states introduced bills related to time off to vote. New Jersey lawmakers introduced a bill (AB 4759), which would require employers to provide two hours of paid leave for employees to vote in a general election. A bill (HB 6590) in Michigan would similarly require employees to allow employees who do not have two continuous hours off during open poll hours to request and take an amount of leave necessary to vote.
Another bill (AB 1449) in New Jersey that has cleared the state assembly would allow employees to use paid temporary disability leave for organ and bone marrow donation.
By contrast, in New York, Governor Andrew Cuomo recently vetoed a bill that would have given workers 12 weeks of paid bereavement leave.
Philadelphia, Pennsylvania adopted an ordinance that will require retail, hotel, and food services employers to provide "fair workweek employment standards" for certain employees. Such standards include reasonable notice of schedules, rest time between shifts, and opportunities for additional hours.
Meanwhile, on December 7, 2018, the New York Department of Labor proposed a new set of “predictable scheduling” regulations in an effort to discourage on-call shifts and require employers to pay employees for cancelled shifts.3
In Michigan, lawmakers introduced a bill (HB 6594) that would allow employees to request changes in their work schedules and advance notice about those schedules. Employers would then have to engage in a good-faith interactive process about such requests. Other newly introduced legislation (HB 6592, HB 6591) would implement mandatory meal and rest breaks in certain Michigan workplaces.
A bill (AB 4134, SB 2891) that has passed the New Jersey State Assembly and a senate committee would establish the “New Jersey Secure Choice Savings Program,” a retirement savings program funded by automatic enrollment payroll deductions for certain private sector employees. Employers covered by this proposed law include those with at least 25 employees in New Jersey, that have been in business at least two years, and that do not offer their employees any qualified retirement plans.
A separate piece of legislation pending in the Garden State would require employers with at least 20 employees to offer a pre-tax transportation fringe benefit to all of their employees who are not subject to a collective bargaining agreement. This bill (AB 2425, SB 1567) has passed the state senate and a house committee.
Discrimination and Harassment
Laws addressing sexual harassment and discrimination are expected to continue in earnest throughout 2019. In California, lawmakers have already introduced a new bill (AB 51) that would prevent employers from requiring applicants to enter into a contractual agreement that prohibits them from disclosing incidents of sexual harassment in the workplace, and would ban mandatory arbitration of harassment claims.
In New Jersey, proposed legislation (SB 3253) would prohibit employers from requiring job applicants to complete any employment application that makes any inquiries regarding the applicant’s gender during the initial employment application process.
Similarly, proposed New Jersey regulations would prevent employers from knowingly or purposefully publishing an advertisement for any job vacancy that contains a provision indicating that the employer will not consider applications from individuals who are unemployed.
In New York City, the mayor is expected to sign an ordinance that adds “sexual and other reproductive health decisions” to the list of protected classes under the NYC Human Rights Law.4
On the opposite coast, the Washington State Court of Appeals recently held that Seattle Ballot Initiative 124, which includes protections regarding sexual assault and harassment for hotel workers in the city, was unlawful. According to the court, the ballot initiative violates the "single subject" rule in the Seattle City Charter. Among other provisions, Initiative 124 required covered hotel employers to provide panic buttons to employees who are involved with in-room services; maintain records of guests that staff members have accused of sexual assault or harassment, and prevent them from patronizing the hotel for at least three years; and posting information about these protections.5
State lawmakers are expected to introduce a flurry of new bills the first quarter of 2019. We will continue to monitor stage and local legislation and highlight emerging trends. For an update on wage and hour developments, see this month's edition of Wage Watch.6
1 See John Bauer and Kelly Spina, Suffolk County Set to Become the Fourth New York Jurisdiction to Ban Salary History Inquiries, Littler ASAP (Dec. 10, 2018).
2 See Mickey Chichester, Anton Dirnberger, and Sebastian Chilco, Michigan Governor Signs Amended Paid Sick Leave and Minimum Wage Laws, Littler ASAP (Dec. 20, 2018).
3 See Eli Z. Freedberg and Paul Piccigallo, New York Agency Renews Effort to Promulgate State-Wide Predictable Scheduling, Littler ASAP (Dec. 11, 2018).
4 See Devjani Mishra and Emily Haigh, New York City Moves to Prohibit Discrimination Based on Family Planning and to Protect Reproductive Choice, Littler ASAP (Dec. 26, 2018).
5 See Michael J. Lotito and Daniel L. Thieme, Seattle Ballot Initiative Targets Hotel Industry, Littler ASAP (Aug. 10, 2016, updated Nov. 9, 2016).
6 See Libby Henninger, Sebastian Chilco, and Corinn Jackson, WPI Wage Watch: Minimum Wage, Tip and Overtime Developments (December Edition), WPI Report (Dec. 31, 2018).