State & Local Employment Law Developments: Q3 2019

State and local governments are increasingly regulating the workplace. Although it is not possible to discuss all state and local laws, this update provides an overview of recent and upcoming legislative developments to help you ensure that your organization stays in compliance. This quarter, state and local legislatures were particularly active in passing laws addressing wage theft, sexual harassment, salary history and pay equity, protected class expansion, independent contractors, a variety of unpaid and paid leaves, noncompete agreements, lactation accommodations and marijuana.

Arkansas

Minimum Wage: Effective July 24, 2019, Arkansas’ minimum wage law will amend to:

• Change the limit on the minimum wage credit for board, lodging, apparel and other items and services from $0.30 per hour to the "reasonable cost" of the board, lodging, apparel or other items and services, as determined by federal rules.
• Specify that employees must provide proof that a violation was willful to receive liquidated damages.
• Prohibit employees from becoming plaintiffs in a lawsuit for minimum wage and/or overtime violations unless they provide written consent that is filed in court.
• Specify that the statute of limitations for minimum wage and overtime violations is two years (changed from three years, pursuant to an Arkansas Supreme Court ruling).

California

Sexual Harassment Training: Effective October 1, 2019, revisions to California’s training requirements include:

• Expanding training requirements to employers with five or more employees.
• Providing supervisors with at least two hours of training and nonsupervisory employees with at least one hour of training by January 1, 2021, and once every two years thereafter.

Employers that have provided compliant training after January 1, 2019, are not required to provide training again until two years thereafter.

Independent Contractors: Effective January 1, 2020, California AB 5 codifies the 2018 California Supreme Court decision in Dynamex Operations West, Inc. v. The Superior Court of Los Angeles County, which replaces the state’s Borello test for classifying workers as independent contractors. Under the newly codified ABC test, workers are presumed to be employees unless the hiring business can prove three factors:

• The person is free from the hiring entity’s control and direction in connection with the performance of the work, both under the contract for the performance of the work and in fact.
• The person performs work that is outside the usual course of the hiring entity's business.
• The person is customarily engaged in an independently established trade, occupation or business of the same nature as that involved in the work performed.

The law includes carve-outs for certain occupations and professions, which will remain subject to the Borello test.

For additional information regarding this amendment, please refer to our firm’s September 13, 2019, legal update titled, “Independent Contractor? Not in California!”

Human Trafficking Training: By January 1, 2020, employers that operate hotels or motels must provide at least 20 minutes of human trafficking awareness training to employees who may interact with victims of human trafficking, such as those working in a reception area or performing housekeeping duties.

After January 1, 2020, covered employers must provide this training once every two years to current covered employees and to each new covered employee within the first six months of employment.

Hair Discrimination: Effective January 1, 2020, race discrimination under California’s Fair Employment and Housing Act (FEHA) includes traits historically associated with race, including hair texture and protective hairstyles such as braids, locs and twists.

For additional information regarding this law, please refer to our firm’s July 26, 2019, legal update titled, “New York Joins California in Banning Race-Based Hair Discrimination in Employment.”

Voting Rights: Effective January 1, 2020, employers cannot require or request employees to bring their vote by mail ballots to work or vote by mail ballot while at work, in place of taking time off to vote.

Colorado

Wage Theft: Effective January 1, 2020, amendments to Colorado’s wage payment law provide that an employer commits wage theft for willfully refusing to pay wages or other forms of compensation due to an employee. Wage theft will be considered a felony (previously a misdemeanor) if the amount not paid is $2,000 or more. In addition, paying less than the minimum wage will be considered theft.

The amendments also include factors relevant to determine whether a worker is an employee.

Minimum Wage: Lifting a ban on local enactment of minimum wage laws, starting January 1, 2020, Colorado law will allow local governments to establish their own minimum wages subject to certain restrictions. Among these restrictions is limiting local minimum wage rates to increase by no more than 15% annually.

For additional information regarding this Colorado law, please refer to our firm’s June 6, 2019, legal update titled, “Colorado Enacts New Minimum Wage and ‘Ban the Box’ Laws.”

Connecticut

Civil Air Patrol Leave: Effective October 1, 2019, employers may not discriminate against, discipline or terminate an employee because the employee is a Civil Air Patrol member or is absent from work to respond to an emergency as a Civil Air Patrol member, or participate in required emergency services training programs and exercises. This leave may be unpaid.

Sexual Harassment Training: Effective October 1, 2019, sexual harassment training requirements are expanded in Connecticut. Previously, only employers with 50 or more employees were required to provide this training to supervisory employees. The new requirements are as follows:

• For employers with three or more employees, employers must provide two hours of sexual harassment training to all employees by October 1, 2020.
• For employers with fewer than three employees, employers must provide two hours of sexual harassment training to all supervisors by October 1, 2020.
• New employees hired on or after October 1, 2019, must receive training within six months of their start date (assuming that the state agency has made training materials available).

If existing employees were provided training after October 1, 2018, employers are not required to provide this training again to such employees. Employers must provide subsequent training at least once every 10 years.

Illinois

Equal Pay/Salary History: Effective September 29, 2019, an amendment to the Illinois Equal Pay Act of 2003 includes:

• Prohibiting unequal wages based on sex for the same or substantially similar work that requires “substantially similar skill, effort and responsibility” (changed from “equal skill, effort and responsibility”).
• Restricting salary history inquiries under certain circumstances.
• Prohibiting a requirement that employees sign a contract or waiver that prohibits them from disclosing information about their wages, salary, benefits or other compensation.

For additional information regarding this amendment, please refer to our firm’s August 6, 2019, legal update titled, “Don’t Show Me the Money: Illinois Employers Soon Can’t Request or Consider Wage History in Hiring.”

Discrimination/Harassment: Effective January 1, 2020, the Illinois Workplace Transparency Act (WTA) includes amendments to several existing laws related to discrimination and harassment in the workplace. These changes include:

• Prohibiting nondisclosure and/or non-disparagement clauses in employee agreements unless certain conditions are met.
• Prohibiting arbitration agreements that exclude discrimination and harassment claims (even though this may conflict with the Federal Arbitration Act, or FAA).
• Amending the Illinois Human Rights Act (IHRA) to expand “perceived” discrimination to all protected classes (previously, only disability) and expand protections to nonemployees.
• Amending the Victims' Economic Security and Safety Act (VESSA) to add protections for gender violence.
• Requiring employers to provide annual sexual harassment prevention training to employees.
• Requiring certain employers to annually report data to the Illinois Department of Human Rights (IDHR) beginning July 1, 2020.

For additional information regarding the WTA, please refer to our firm’s June 20, 2019, legal update (amended August 14, 2019) titled, “Gearing Up for the Workplace Transparency Act: A Checklist for Illinois Employers.”

Job Interview: Effective January 1, 2020, under Illinois’ Artificial Intelligence Video Interview Act, employers that want to record videos of job applicants' interviews are required, before the interview, to:

• Notify applicants that artificial intelligence (AI) will be used to analyze the interview.
• Explain to applicants how the AI works.
• Obtain applicants' consent for AI evaluation of their interviews.

Applicant videos may only be shared with persons whose expertise or technology is required to evaluate an applicant.

An employer is required to, upon an applicant's request, delete the applicant's video and instruct all others with copies to do the same within 30 days of the request.

Recreational Marijuana: Effective January 1, 2020, Illinois’ Cannabis Regulation and Tax Act (the Cannabis Act) permits individuals who are 21 years or older to legally possess, use or buy marijuana for recreational purposes. However, this does not restrict employers from:

• Prohibiting employees from being under the influence or using marijuana in the workplace, while performing their duties or while on call.
• Disciplining employees who appear to be impaired by marijuana at work if the employee manifests “specific, articulable symptoms while working that decrease or lessen the employee's performance.”

The employer must offer the employee a reasonable opportunity to contest the basis of the employer's determination.

Employers may not discriminate against applicants or employees for lawful use of marijuana outside the workplace.

For additional information regarding this Illinois law, please refer to our firm’s June 3, 2019, legal update titled, “Expected Legislation of Recreational Marijuana Use in Illinois Creates Complexity for Employers.”

Maine

Wage Theft: Effective September 19, 2019, the Act to Prevent Wage Theft and Promote Employer Accountability details employer violations that are considered wage theft and provides enforcement provisions. Under the Act, an employer commits wage theft if it violates sections of Maine’s wage payment law, including but not limited to:

• Minimum wage and overtime requirements.
• Full and timely wage payment.
• Final wage payment at termination of employment.
• Unfair agreements relating to certain wage deductions.
• Fringe benefits as earned wages.
• Record retention of wage payment.

Discrimination: Effective September 19, 2019, amendments to the Maine Human Rights Act (MHRA) include:

• Adding gender identity as a protected class.
• Adding leaves of absence to the list of reasonable accommodations for a disability.
• Prohibiting the designation of a public single-occupancy restroom for use only by members of one sex.

Noncompete Agreement: Effective September 19, 2019, Maine’s noncompete law defines a noncompete agreement and includes provisions regarding protectable business interests; types of workers who may not be subject to noncompete agreements; notice and disclosure requirements; effective date of an agreement; and fines for violations.

Pregnancy/Lactation Accommodations: Effective September 19, 2019, employers are required to provide reasonable accommodations for an employee's limitations related to pregnancy or pregnancy-related conditions (including lactation), unless doing so would create an undue hardship for the employer.

Reasonable accommodations include:

• More frequent or longer breaks.
• Temporary modifications in work schedules, seating or equipment.
• Temporary relief from lifting requirements.
• Temporary transfers to less strenuous or hazardous work.
• Lactation breaks.

Social Security Numbers: Effective January 1, 2020, Maine employers are prohibited from requesting a job applicant’s social security number on an employment application or during the application process, except for purposes of preemployment background checks or substance abuse testing. An employer may request a social security number after an applicant is hired.

Massachusetts

Overtime: Effective January 1, 2020, the overtime rate for retail employees who work on Sundays and certain holidays decreases from one and four-tenths times the regular rate of pay to one and three-tenths times the regular rate of pay.

Minnesota

Minneapolis Wage Theft: Effective January 1, 2020, the Minneapolis Wage Theft Prevention Ordinance puts stricter requirements on employers than the state wage theft law that went into effect on July 1, 2019. Employers must include additional information on the notice provided to new employees and on earnings statements.

For additional information regarding this ordinance, please refer to our firm’s August 12, 2019, legal update titled, “Minneapolis Passes Wage Theft Prevention Ordinance.”

Duluth Paid Sick Leave: Effective January 1, 2020, Duluth’s earned sick and safe time (ESST) ordinance requires that employers with five or more employees provide paid sick and safe leave to employees who work at least 50% of the time in Duluth, or are based in Duluth, working a substantial part of the time in Duluth and working not more than 50% of the time elsewhere.

Employees accrue one hour of ESST for every 50 hours worked, up to 64 hours in a year. Up to 40 hours of ESST may be used in a year, beginning after 90 days of employment.

ESST may be used for:

• The employee's or a family member's mental or physical illness, injury or health condition; medical diagnosis, care or treatment; and preventive medical care.
• An absence due to domestic abuse, sexual assault or stalking of the employee or a family member.

Nevada

Drug Testing: Effective January 1, 2020, Nevada law provides that:

• An employer is prohibited from failing or refusing to hire a prospective employee based on testing positive for marijuana in a drug screening test, with certain exceptions.
• An employee who is required to submit to a drug screening test within the first 30 days of employment is permitted to undergo an additional screening test to rebut the results of the initial test, under certain circumstances.

New Hampshire

Noncompete Agreement: Effective September 8, 2019, employers are prohibited from requiring low-wage employees (i.e., employees who earn an hourly rate less than or equal to 200% of the federal minimum wage or state tipped minimum wage) to enter into a noncompete agreement.

Gender Identity: Effective October 15, 2019, an amendment to New Hampshire anti-discrimination law adds gender identity as a protected class.

New Jersey

Medical Marijuana: Effective July 2, 2019, New Jersey has amended and renamed its medical marijuana law to include:

• Prohibiting an employer from taking an adverse employment action against an employee who is a registered qualifying patient based solely on the employee's status as a registrant with the Cannabis Regulatory Commission.
• Requiring an employer, with a drug testing policy and an employee or job applicant who tests positive for marijuana, to offer, through a written notice, the employee or job applicant an opportunity to provide a legitimate medical explanation for the positive test result.

The amended law does not restrict an employer from prohibiting, or taking adverse employment action for, the possession or use of intoxicating substances during work hours or on the premises of the workplace outside of work hours.

Wage Theft: Effective August 6, 2019, under the New Jersey Wage Theft Act amending the state’s wage and hour laws, an employer commits wage theft by doing one of the following:

• Knowingly failing to timely pay all wages and benefits.
• Failing to pay minimum wage or overtime.
• Retaliating against an employee for complaining about, participating in a proceeding, or informing another employee about their rights regarding wages and hours worked.

The statute of limitations is extended from two years to six years for claims under this Act.

In addition, employers must provide all current employees and new hires with a notice about these rights once the labor department has published a model notice.

Salary History: Effective January 1, 2020, employers are restricted from inquiring about salary history and cannot do either of the following:

• Screen job applicants based on their prior wages, salaries or benefits.
• Require that an applicant's salary history satisfy any minimum or maximum thresholds.

However, an employer is permitted to:

• Consider salary history in determining an applicant's salary, benefits and other compensation, and may verify salary history, if an applicant voluntarily provides the employer with salary history without prompting or coercion.
• Request written authorization from an applicant to confirm salary history after an employment offer that includes the overall compensation package has been made to the applicant.

New York

Hair Discrimination: Effective July 12, 2019, an amendment to the New York Human Rights Law (NYHRL) provides that race discrimination includes traits historically associated with race, including but not limited to hair texture and protective hairstyles such as braids, locs and twists.

For additional information regarding this law, please refer to our firm’s July 26, 2019, legal update titled, “New York Joins California in Banning Race-Based Hair Discrimination in Employment.”

Religion Discrimination: Effective October 8, 2019, an amendment to the NYHRL prohibits employers from discriminating against employees based on religious attire, clothing and facial hair. Equal Pay: Effective October 8, 2019, amendments to New York's equal pay law:

• Prohibit wage discrimination based on protected class status under the NYHRL; and
• Expand the definition of equal work by requiring equal pay for "substantially similar work, when viewed as a composite of skill, effort and responsibility and performed under similar working conditions."

Sexual Harassment/Human Rights: Effective October 11, 2019, amendments to the NYHRL to bolster employee protections include:

• Removing the legal standard that workplace sexual harassment needs to be “severe or pervasive.”
• Prohibiting nondisclosure agreements (NDAs) in any settlement, agreement or other resolution of an employment discrimination claim unless it is the complainant’s preference to include and it is written in plain English. NDAs, however, must not prohibit or restrict a complainant from initiating, testifying, assisting or complying with a subpoena; participating with an agency investigation; or filing or disclosing facts when applying for public benefits.
• Adding notice requirements regarding an employer's sexual harassment prevention policy and training program.
• Expanding protections for nonemployees for unlawful employment discriminatory practices (instead of only sexual harassment).
• Extending the ban on mandatory arbitration for resolving sexual harassment claims to include employment discrimination claims.
• Increasing penalties and remedies available to employees and enforcement agencies.
• Limiting employer defenses for harassment claims by allowing employees to bypass reporting the issue to the employer before initiating legal proceedings.

For contracts or agreements entered into on or after January 1, 2020, provisions that prevent disclosure of factual information related to a future sexual harassment claim are void and unenforceable unless they include a carve-out for law enforcement agencies; federal, state or local human rights agencies; or attorneys representing employees.

Data Privacy: Effective October 23, 2019, New York’s Stop Hacks and Improve Electronic Data Security Act (SHIELD Act) requires covered entities to have reasonable safeguards to protect the security, confidentiality and integrity of private information, which includes social security numbers and biometric information.

Immigrant Discrimination: Effective October 27, 2019, New York's Labor Law amendment prohibits employers from contacting or threatening to contact U.S. immigration authorities, or reporting or threatening to report an employee, employee’s family or employee’s household member’s suspected citizenship or immigration status to authorities.

Domestic Violence: Effective November 18, 2019, the NYHRL is amended to provide additional discrimination protections for victims of domestic violence. The amendments make it an unlawful for an employer to:

• Refuse to hire, discharge or discriminate against a victim of domestic violence in compensation or in terms, conditions or privileges of employment.
• Print or circulate a statement, advertisement or publication, use an application form or make an inquiry in connection with prospective employment that expresses, directly or indirectly, any limitation, specification or discrimination as to status as a victim of domestic violence.
• Refuse to provide reasonable accommodation for a victim of domestic violence’s absence from work for a reasonable time and for a qualifying reason, unless doing so would create an undue hardship on the employer.

Paid Family Leave: Effective January 1, 2020, employees are eligible to receive 10 weeks of paid family leave benefits during any 52-week calendar period at 60% of their average weekly wage (previously, 55%).

Salary History: Effective January 6, 2020, employers are prohibited from inquiring about a job applicant’s salary history as a part of a job application, interview, offer or promotion. This does not prevent applicants from voluntarily, and without prompting, disclosing or verifying salary history. Employers may confirm salary history only if, when the offer with compensation is made, the applicant’s response includes disclosure of prior salary in support of a higher salary.

New York City Reasonable Accommodation: Effective November 11, 2019, the NYHRL is amended to prohibit retaliation against individuals who request a reasonable accommodation on the basis of a protected class.

Oklahoma

Workplace Harassment and Violence: Effective November 1, 2019, Oklahoma's Protection From Workplace Harassment and Violence Act allows employers to file a petition with the district court seeking an injunction to prohibit workplace harassment. An injunction granted by the court may:

• Restrain an individual from coming near the employer’s property or contacting the employer, an employee or other person while on the employer's property or performing work duties.
• Permit other relief necessary to protect the employer, employee or workplace.

Firearms: Effective November 1, 2019, Oklahoma’s firearms law has been amended to include:

• Expanding the definition of unlawful carry to include exceptions for self-defense and for uniformed service members or veterans, under certain circumstances.
• Permitting individuals in lawful possession of a firearm to transport a firearm in a motor vehicle, whether loaded or unloaded.

Independent Contractor: Effective January 1, 2020, Oklahoma’s unemployment insurance law adopts the federal Internal Revenue Service's (IRS) 20-Factor Test to determine whether a worker is an employee or an independent contractor. This change does not affect the test used under the Oklahoma Minimum Wage Act and Administrative Workers' Compensation Act.

Oregon

Discrimination Claims: Effective September 29, 2019, Oregon’s statute of limitations for discrimination claims is extended to five years (from one year).

Noncompete Agreement: Effective January 1, 2020, an amendment to Oregon's noncompete law requires that employers must provide a signed, written copy of the noncompetition agreement to a terminated employee within 30 days after the date of termination for the agreement to be valid.

Pregnancy and Lactation Accommodation: Effective January 1, 2020, an Oregon employer with six or more employees is required to provide reasonable accommodations for an employee's limitations related to pregnancy, childbirth or related medical conditions (including lactation), unless doing so would create an undue hardship for the employer.

Reasonable accommodations may include any of the following:

• Acquisition or modification of equipment or devices.
• More frequent or longer break periods.
• Periodic rest.
• Assistance with manual labor.
• Modification of work schedules or job assignments.

The law also includes actions that may not be taken against employees or applicants based on pregnancy, childbirth or related medical conditions.

Employers are required to:

• Conspicuously post a notice in the workplace prohibiting discrimination on the basis of pregnancy, childbirth and related medical conditions, including the right to reasonable accommodations.
• Provide the notice in writing to new employees at the time of hire, existing employees by June 29, 2020, and employees who disclose their pregnancy to the employer within 10 days after receipt of the information.

Equal Pay: Effective January 1, 2020, amendments to Oregon's equal pay law include:

• Listing certain circumstances under which it is not a violation to pay different levels of compensation to employees.
• Revising requirements for an equal pay analysis.

Pennsylvania

Gender Identity and Expression Discrimination: Effective July 11, 2019, an amendment to the Pittsburgh Human Relations Ordinance prohibits discrimination based on gender identity and gender expression.

Rhode Island

Show-Up/Reporting Time: Effective July 19, 2019, Rhode Island's show-up/reporting time law is amended to:

• Permit scheduling shifts for less than three hours when entered into voluntarily and agreed upon by both the employer and employee.
• Exempt students enrolled full-time at Rhode Island colleges or universities who are also employees of their colleges or universities.

Paid Sick Leave: Effective January 1, 2020, Rhode Island employers with 18 or more employees must provide up to 40 hours of paid sick and safe time to eligible employees in 2020 and each year after that. This is increased from 32 hours in 2019.

Noncompete Agreement: Effective January 15, 2020, Rhode Island's noncompete law defines a noncompete agreement and lists the types of employees in which a noncompete agreement cannot be enforced to include nonexempt and low-wage employees.

Tennessee

Independent Contractor: Effective January 1, 2020, several Tennessee laws, including the Tennessee Wage Regulation Act and Tennessee Employment Security Law, adopt the IRS’ 20-Factor Test to determine whether a worker is an employee or an independent contractor. This change does not affect the test used under the Tennessee Workers' Compensation Act.

Texas

Lactation Accommodation: Effective September 1, 2019, an amendment to Texas law expands existing breastfeeding rights to allow an individual to breastfeed and/or express breast milk in any location where the individual's presence is otherwise authorized.

Jury Duty Leave: Effective September 1, 2019, Texas expands employee protections for jury duty leave to include, in addition to termination:

• Threats of termination.
• Intimidation.
• Coercion.

The protections also extend to attendance or scheduled attendance in any court in the U.S.

San Antonio Paid Sick Leave: The implementation of this ordinance has been delayed from August 1, 2019 to December 1, 2019 for employers with more than five employees.

For additional information regarding this San Antonio law, please refer to our firm’s July 1, 2019, legal update titled, “State & Local Employment Law Developments: Q2 2019.”

Washington

Paid Family Leave: Effective December 31, 2019, the Washington Family Leave Act is repealed and replaced by Washington's paid family leave law. Beginning January 1, 2020, paid family leave benefits are available to employees.

Noncompete: Effective January 1, 2020, Washington’s noncompete law includes provisions regarding the enforceability of noncompete covenants, employer liability for violations, banning anti-raiding provisions in vertical franchise agreements and limiting restrictions on employee moonlighting.

The law applies retroactively to agreements signed before January 1, 2020; however, a cause of action may not be brought regarding a noncompete covenant signed before January 1, 2020, if the covenant is not being enforced.

Sexual Harassment and Assault Protections for Hotel Workers: Effective January 1, 2020, hotel and motel employers with 60 or more guest rooms must provide isolated workers who are housekeepers, room service attendants, security guards or janitors with sexual harassment and assault prevention requirements to include:

• Adopting a sexual harassment policy.
• Providing mandatory training to all employees.
• Providing a list of resources related to sexual harassment and assault prevention.
• Providing a panic button to each isolated worker.