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.
Nearly all states legislatures are now in session, and the surge of new bills indicates lawmakers are not holding back. Over 1,000 state-level labor and employment-related bills have already been introduced since January 1, 2019. These bills cover a wide range of issues, from arbitration agreements to workplace bullying.
Many workplace proposals are familiar. The influence of the #MeToo movement has not abated, as shown by the number of proposals that would prohibit confidential settlement terms in sexual harassment cases, loosen the standard for actionable harassment, and increase penalties for sexual harassment. Following the success of some November 2018 ballot initiatives that legalized recreational or medical use of marijuana, several new proposals have been introduced that would achieve the same end. Bills to strengthen equal pay provisions and/or limit salary history inquiries continue to be popular, although it is too early to tell which will advance. Bills limiting criminal and credit history background checks seem to be evergreen topics, as are proposals to prohibit employment discrimination based on sexual orientation and gender identity.
Some bills cover more unusual topics. Last year, New Hampshire enacted a law banning any person from requiring, coercing, or compelling an individual to receive a subcutaneous implant. Arkansas and Indiana could follow suit, as lawmakers in both states introduced similar bills that would prohibit an employer from requiring an applicant or employee to have a device implanted as a condition of employment.
It is still early in the year, so not many bills have moved beyond the introduction stage. A few measures, however, have made some headway. New York's governor recently signed a bill (SB 1047) that extends antidiscrimination protections to individuals based on gender identity or expression. At the local level, the New York City Council has added “sexual and other reproductive health decisions” to the list of protected classes under the NYC Human Rights Law. A New York state-wide bill (SB 660) that would similarly prohibit discrimination based on an individual's or a dependent's reproductive health decision making has also advanced.
Meanwhile, at least 40 bills, some of which have been pending since 2017, officially died the first of the year.
The following charts provide a visual snapshot of where certain new bill topics are pending.1
States with pending bills that would impose new salary history restrictions or strengthen current salary history laws
(FL, GA, HI, Il, IA, ME, MS, MO, NH, NY, OR, PA, SC, TN, TX, UT, VA, WA , WV, WY)
States with pending bills that would impose scheduling requirements
(AZ, HI, KY, MN, NH, NY, WA)
States with pending bills that would prohibit nondisclosure agreements related to sexual harassment
(CA, DC, HI, IL, IA, MO, NJ, NY, OR, TX, VA, WV)
States with pending bills that would impose limits on criminal history inquiries
(CO, IN, IA, KY, MI, MS, MT, NE, NH, NM, NY, ND, SC, UT, VA, WV)
States with pending bills that would prevent employment discrimination based on sexual orientation and/or gender identity/expression
(FL, ID, IN, KY, MS, MO, NE, SC, TX, VA, WV, WY)
States with pending bills that would require paid sick leave or create a family and medical leave insurance program
(CT, FL, HI, IL, IN, KY, ME, MD, MN, MS, MO, MT, NE, NH, ND, PA, TX, VT, WV)
States with pending bills that would increase the minimum wage2
(CT, FL, GA, HI, ID, IL, IN, IA, KS, ME, MD, MN, MS, MT, NH, NJ, NM, RI, SC, TX, VT, VA, WV, WY)
New bills are expected to continue flooding the state legislatures in the coming weeks. If history is a guide, state lawmakers will also begin actively considering these measures in February, and will start sending the successful bills to their respective governors starting in earnest in March. That said, some state bills may advance more quickly, and we will continue to monitor their progress.
1 Because legislative sessions are quite dynamic this time of year, the charts should be used only as a guide. Bills are both introduced and dispatched on a daily basis.
2 For more information on recent wage and hour developments, see Libby Henninger, Sebastian Chilco, and Corinn Jackson, WPI Wage Watch: Minimum Wage, Tip, and Overtime Developments (January Edition), WPI Report (Jan. 31, 2019).