State & Local Employment Law Developments: Q2 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 a variety of unpaid and paid leaves, lactation accommodations, and restrictions on microchip implantation, salary history and pay equity, criminal background inquiries and e-cigarettes.

Alabama

Equal Pay: Effective August 1, 2019, employers may not pay their employees at a wage rate that is less than the rates paid to employees of another sex or race for equal work in the same establishment on jobs requiring equal skill, effort, education, experience and responsibility under similar working conditions except where differences in wages are due to a seniority system, merit system, system that measures earnings by production quantity or quality, or a differential based on any factor other than sex or race.

Salary History: Effective August 1, 2019, employers are prohibited from refusing to interview, hire, promote, employ or retaliate against any job applicant because the applicant does not provide wage history information.

Arkansas

Microchip Implantation: Effective July 24, 2019, Arkansas law restricts an employer from implanting a microchip in the body of an employee or independent contractor. Specifically, an employer may not do either of the following:

• Ask on a job application or inquire of an applicant during an interview whether the applicant will consent to microchip implantation.
• Require an employee or independent contractor to have a microchip implanted as a condition of employment.

An employer may implant a microchip in an employee's or independent contractor's body if all of the following requirements are met:

• The employer requests it.
• The employee or independent contractor consents to implantation in writing.
• The employer discloses to the employee or independent contractor the data that will be maintained on the microchip and how the employer will use the data.

The law prohibits an employer from coercing an employee's or independent contractor's consent to microchip implantation. If the individual does not provide the consent, the employer is prohibited from creating a hostile work environment; withholding advancement within the company; withholding a salary or wage increase; or terminating the employment or contract.

Final Pay Requirements: Effective July 24, 2019, employers must pay final wages to an employee who is terminated involuntarily by the next regular payday (changed from the requirement to pay within seven days after the termination). An employer that fails to pay the final wages within seven days of the next regular payday is liable to the employee for double the wages due.

Independent Contractor Test: Effective July 24, 2019, the Empower Independent Contractors Act requires employers and enforcement agencies determining whether a worker is an employee or an independent contractor under Arkansas' wage and hour, equal pay, tax, workers' compensation and unemployment insurance laws to use the federal IRS's 20-Factor Test.

California

Los Angeles and Los Angeles County Minimum Wage: Effective July 1, 2019, the minimum wage will increase from $12.00 to $13.25 per hour for employers with 25 or less employees and from $13.25 to $14.25 per hour for employers with 26 or more employees (determined by the average number of employees employed during the previous calendar year).

Colorado

Smoking Ban: Effective July 1, 2019, amendments to the Colorado Clean Indoor Air Act expand the smoking prohibition to any indoor area, including places of employment, regardless of whether the place of employment is open to the public or the number of employees. The prohibition is also expanded to include hotel and motel rooms and assisted living facilities. In addition, the amendments prohibit the use of electronic smoking devices (e.g., electronic cigarettes) where smoking is prohibited.

Criminal Background: Effective September 1, 2019, the Colorado Chance to Compete Act prevents employers with 11 or more employees from:

• Advertising that a person with a criminal history may not apply for a position.
• Stating on an employment application, including an electronic application, that a person with a criminal history may not apply for a position.
• Inquiring into, or requiring disclosure of, an applicant's criminal history on an initial written or electronic application form.

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

Minimum Wage: Effective October 1, 2019, the minimum wage will increase from $10.10 to $11.00 per hour.

Sexual Harassment Training: Effective October 1, 2019, sexual harassment training requirements are expanded in Connecticut to require employers with three or more employees to (1) provide sexual harassment training to all employees who have not received such training after October 1, 2018, and (2) provide new employees with specific information related to sexual harassment. Employers with less than three employees are required to provide this training to all supervisory employees who have not received such training after October 1, 2018. Previously, only employers with 50 or more employees were required to provide this training to supervisory employees.

Delaware

Minimum Wage: Effective October 1, 2019, the minimum wage will increase from $8.75 to $9.25 per hour.

District of Columbia

Paid Family Leave: Effective May 16, 2019, the contribution regulations of the District of Columbia’s paid family leave law provide clarifications of the notice and posting requirements; recordkeeping requirements; and requirements to remit contributions and file reports on a quarterly basis.

Florida

E-Cigarettes: Effective July 1, 2019, an amendment to Florida’s smoking law expands its prohibition on smoking in enclosed indoor workplaces to include vaping (e.g., use of e-cigarettes). Employers are required to amend their workplace smoking policies to include the prohibition against vaping.

Illinois

Union Security Clauses: Effective April 12, 2019, employers and unions are permitted to enter into an agreement requiring employees to pay dues or other required payments to the union as a condition of employment.

For additional information regarding this Illinois law, please refer to our firm’s April 15, 2019, legal update titled Right To Work in Illinois? Not Anymore.

Indiana

Direct Seller Exemptions: Effective July 1, 2019, direct sellers are exempt from Indiana's minimum wage, overtime and unemployment insurance laws if:

• They are in the trade or business of selling, or soliciting the sale of, consumer products or services:
  • To any buyer on a buy-sell basis, deposit-commission basis, or similar basis, in any place other than in a permanent retail establishment, or
  • In any place other than in a permanent retail establishment.
• Substantially all their remuneration, whether or not paid in cash, is directly related to sales or other output, including the performance of services, rather than the number of hours worked.
• They perform their services under a written contract that provides that they will not be treated as an employee for tax purposes.

Iowa

Franchisor Protections: Effective July 1, 2019, a franchisor is generally not considered to be an employer of a franchisee or a franchisee’s employees under laws related to civil rights, wage payment, minimum wage, workers’ compensation and unemployment compensation.

Negligent Hiring: Effective July 1, 2019, Iowa law provides limited protections for employers from negligent hiring lawsuits. However, an employer may be sued for negligent hiring if the employer knew or should have known that an employee, agent or independent contractor had a conviction record and depending on the nature and seriousness of the offense, among other factors.

Kentucky

Pregnancy and Lactation Accommodations: Effective June 27, 2019, employers with 15 or more employees are required to provide reasonable accommodations related to an employee’s pregnancy, childbirth or related medical conditions to include more frequent or longer breaks and private space that is not a bathroom to express breast milk, unless doing so would create an undue hardship for the employer.

Arbitration Agreements, Employment Contracts and Background Checks: Effective June 27, 2019, SB 7 is amended to allow:

• Employers to require employees to arbitrate claims as a condition of employment and specifies rights to be provided to employees in an arbitration agreement.
• Employers to require a former employee to execute an agreement to waive an existing claim as a condition or precondition for the rehiring of the former employee as part of a settlement of pending litigation or other legal or administrative proceeding.
• Employers and employees to contractually limit the time period in which employees may file employment-related claims.
• Employers to require a background check as a condition of employment.

Maine

Salary History: Effective September 17, 2019, employers are prohibited from using or inquiring about the compensation history provided by a prospective employee or the prospective employee's current or former employer until a job offer is made that includes all terms of compensation negotiated with the prospective employee. After the job offer is made, the employer may inquire about or confirm the prospective employee's compensation history.

In addition, employers may not prohibit current employees from disclosing their own wages or inquiring about or disclosing another employee's wages with the purpose of enforcing equal pay rights.

WARN: Effective September 19, 2019, Maine has amended the notice and penalty provisions of its mini-WARN law. The notice period has been expanded from 60 to 90 days. In addition, the penalty provisions have been clarified.

Emergency Responder Leave: Effective September 19, 2019, emergency responder leave extends to emergency medical services persons and to absences during regular working hours. Other amended provisions include prohibited employer actions, employee notice requirements, employer verification allowances, individual written agreements and designation of essential employees.

Search-and-Rescue Volunteer Leave: Effective September 19, 2019, employers are prohibited from disciplining, discharging or otherwise discriminating against employees who fail to report to work or are absent from work due to responding to a search-and-rescue operation requested by a law enforcement agency in the employee’s capacity as a search-and-rescue volunteer. The employee must report for work as soon as reasonably possible after being released from the operation.

Veterans Leave for Medical Appointments: Effective September 19, 2019, employees who are covered veterans must be allowed to take time off (may be unpaid) from work to attend a scheduled appointment at a medical facility operated by the U.S. Department of Veterans Affairs, provided the employee provides notice of the appointment as soon as reasonably possible.

Maryland

Organ and Bone Marrow Donation Leave: Effective October 1, 2019, employers with 15 or more workers in Maryland are required to provide organ and bone marrow donation leave. Eligible employees are entitled to take unpaid leave for up to 60 business days in any 12-month period to serve as an organ donor and 30 business days in any 12-month period to serve as a bone marrow donor.

Noncompete/Conflict of Interest: Effective October 1, 2019, employers are prohibited from including a noncompete or conflict of interest provision in an employment contract with an employee who earns $15 or less per hour or $31,200 or less annually. An employment contract that contains such provisions, which restricts the ability of an employee to work for a new employer or become self-employed in the same or similar business or trade, is void as against public policy. This law does not apply to employment contracts regarding the taking or use of a client list or other proprietary client-related information.

Massachusetts

Paid Family and Medical Leave Contribution Payments: The initial date for employers to begin collecting premiums from their employees for the Paid Family and Medical Leave has been delayed from July 1, 2019 to October 1, 2019.

Minnesota

Wage Theft and Related Notice and Recordkeeping Requirements: Effective July 1, 2019, employers are required to:

• Provide new employees with a written notice at the start of employment containing information specified in the law to include the employee’s acknowledgement of receipt.
• Provide a written notice to employees whenever anything in the original written notice changes prior to the date the changes take effect and obtain employee’s acknowledgement of receipt.
• Include additional information (basis of pay, any meals or lodging allowances, and the employer’s physical address and phone number) on earnings statements provided to employees at the end of each pay period.
• Retain additional records to include a list of personnel policies provided to employees.
• Pay wages at least once every 31 days (commissions must be paid at least once every three months).

In addition, effective August 1, 2019, Minnesota law has been amended to address and prevent wage theft, which will result in criminal penalties. Generally, an employer commits wage theft if, with intent to defraud, if it does one or more of the following:

• Fails to pay an employee all earnings due at the appropriate pay rate(s).
• Directly or indirectly causes an employee to give a receipt for wages for a greater amount than that actually paid.
• Directly or indirectly demands or receives from an employee a rebate or refund from the wages owed under an employment contract.
• Makes or attempts to make it appear that the wages paid to an employee were greater than the amount actually paid.

For additional information regarding this Minnesota law, please refer to our firm’s June 17, 2019, legal update titled Minnesota Employers Should Prepare for Wage Theft Provisions Coming July 1, 2019; Other Workforce Mandates Not Passed.

Missouri

Kansas City Salary History: Effective October 31, 2019, employers with six or more employees are prohibited from:

• Inquiring about an applicant's salary history.
• Screening job applicants based on their current or prior wages, benefits, other compensation or salary histories, to include requiring that these items satisfy minimum or maximum criteria.
• Relying on an applicant's salary history in deciding whether to make an employment offer, or in determining salary, benefits or other compensation for the applicant during the hiring process, including negotiation of an employment contract.
• Refusing to hire or otherwise disfavoring, injuring or retaliating against an applicant who refuses to disclose his or her salary history.

These salary history restrictions do not apply to certain applicants and situations.

The law permits an employer to discuss expectations regarding salary, benefits and other compensation with job applicants.

Montana

Microchip Implantation: Effective October 1, 2019, employers are prohibited from requiring employees and independent contractors to have a microchip implanted in their body as a condition of employment. However, microchip implantation is permitted if an employee or independent contractor consents to it in writing.

Nebraska

Wage Disclosure: Effective September 6, 2019, Nebraska’s Fair Employment Practices Act is amended to prohibit employers from discriminating against employees or applicants who inquire about, discuss or disclose information regarding employee wages, benefits or other compensation. The law does not apply to instances in which an employee with authorized access to information about employees' wages discloses wage information to an individual without authorized access to such information, unless the disclosure is in response to a charge or complaint or in furtherance of an investigation, proceeding, hearing or other action, including an investigation conducted by the employer.

Nevada

Employee Attendance: Effective May 15, 2019, employers may not require an employee to be physically present at the employee’s place of work in order to notify the employer that the employee cannot work due to illness or a non-work injury.

Criminal Background: Effective July 1, 2019, pursuant to the Nevada Second Chance Act, an individual who was convicted of an offense before it was decriminalized may request the court in which the individual was convicted to seal those criminal history records. If the court orders that the records be sealed, all proceedings recounted in the records are deemed to have never occurred. The individual may therefore answer accordingly to inquiries on an employment application concerning the arrest, conviction, dismissal or acquittal and all events and proceedings related to it.

Medical Marijuana: Effective July 1, 2019, Nevada has amended its medical marijuana law to include additional conditions to its definition of debilitating medical conditions and to prohibit an employer from taking adverse employment action against a job applicant or employee based on conduct allowed under the law, unless a failure to do so would cause the employer to lose monetary or licensing-related benefits under federal law or regulations.

Microchip Implantation: Effective October 1, 2019, employers are prohibited from requiring individuals to have a microchip or other permanent identification marker implanted in their body as a condition of employment. However, microchip implantation is permitted if an individual voluntarily elects to undergo it.

Paid Leave: Effective January 1, 2020, employers with 50 or more employees in Nevada must provide paid leave that employees may use for any reason. An employer has the option to allow employees to accrue 0.01923 hours of paid leave for every hour worked or to frontload paid leave at the beginning of a benefit year. Employees may use their available paid leave beginning on the employee's 90th calendar day of employment, up to 40 hours of leave per benefit year.

Nondisclosure Provisions: Effective July 1, 2019, employers may not include nondisclosure provisions in settlements involving sex discrimination or sexual offenses.

New Jersey

Sexual Harassment and Assault Protections for Hotel Workers: Effective June 14, 2019, hotel employers with more than 100 guest rooms must provide workers in housekeeping or room service with a panic device for protection from unsafe working conditions while performing their duties. The law also contains recordkeeping and security protocol requirements that go into effect on January 1, 2020.

New Mexico

Medical Marijuana: Effective June 14, 2019, New Mexico amended its medical marijuana law to include additional conditions to its definition of debilitating medical conditions and to prohibit an employer from taking adverse employment action against a job applicant or employee based on conduct allowed under the law, unless a failure to do so would cause the employer to lose monetary or licensing-related benefits under federal law or regulations.

E-Cigarettes: Effective June 14, 2019, amendments to New Mexico’s smoking laws include a ban on use of e-cigarettes where smoking tobacco products is prohibited, including indoor workplaces and certain public places. The amendments also modify the perimeters of smoking-permitted areas and remove the exemption for certain workplaces with fewer than two employees.

Sexual Orientation and Gender Identity: Effective June 14, 2019, New Mexico’s discrimination protections regarding sexual orientation and gender identity have been expanded and apply to all employers (previously, they applied only to employers with 15 or more employees).

Union Security Clauses: Effective June 14, 2019, employers and unions are permitted to enter into an agreement requiring employees to be members of the union as a condition of employment.

Kin Care Leave: Effective June 14, 2019, New Mexico’s Caregiver Leave Act requires employers that provide personal sick leave benefits to permit employees to use accrued sick leave to care for a covered family member under the same terms and procedures that employees use sick leave for their own illness or injury or to receive medical care.

Criminal Background Inquiries: Effective June 14, 2019, private employers may not ask about a job applicant’s history of arrest or conviction on the employment application, but may consider an applicant’s conviction after reviewing the application and discussing employment with the applicant.

New York

Voting Leave: Effective April 12, 2019, New York’s voting leave law is amended to require an employer to provide up to three hours of paid voting leave (previously two hours). The amendments also include:

• Eliminating the requirement that leave may be taken by an employee without sufficient time outside of working hours to vote.
• Eliminating the language regarding sufficient time.
• Eliminating the requirement that employees must wait to notify their employer not more than 10 days before election day of the need for time off to vote. The law still requires employees to provide notice "not less than two working days" before election day.

Westchester County Safe Leave: Effective October 30, 2019, employers must provide up to 40 hours of paid safe leave per year to employees who work in Westchester County for more than 90 days in a calendar year and who are victims of domestic violence or human trafficking. An employee may take leave to attend or testify in criminal and civil court proceedings relating to domestic violence or human trafficking and to move to a safe location. Employers are required to give each employee a copy of the Safe Time Leave Law and written notice of how the law applies to that employee when employment begins or within 90 days of the law's effective date (i.e., by January 28, 2020), whichever is later. An employer must also display a poster and a copy of the law.

Safe leave is in addition to sick leave provided for under Westchester County’s Earned Sick Leave Law.

North Dakota

Emergency Responder Leave: Effective August 1, 2019, North Dakota's emergency responder leave law protections for volunteer members of the North Dakota National Guard are expanded to cover National Guard members of any state.

Oklahoma

Voting Leave: Effective May 6, 2019, Oklahoma’s voting leave law is amended to provide time off to vote when in-person absentee voting is held, permits an employer to select the days that employees may vote, and requires employees to notify their employer of need for time off to vote at least three days in advance.

Medical Marijuana: Effective August 30, 2019, Oklahoma’s medical marijuana law is clarified by the Oklahoma Medical Marijuana and Patient Protection Act, which includes clarifications on an employer’s ability to discipline employees who are medical marijuana license holders. The current law prohibits an employer from refusing to hire, discipline, terminate or otherwise penalize an applicant or employee who possesses a medical marijuana license solely on the basis of a positive drug test. Under the act, an employer may refuse to hire, discipline, terminate or otherwise penalize an applicant or employee on the basis of a positive drug test only in certain situations, including if the applicant's or employee's position involves safety-sensitive job duties.

In addition, effective August 30, 2019, Oklahoma’s smoking law is amended to prohibit smoking and vaping of marijuana in certain places, including public places and indoor workplaces.

Oregon

Disability Discrimination: Effective May 6, 2019, Oregon’s disability discrimination law contains amendments that clarify that sexual orientation is not considered a physical or mental impairment, remove transvestism from the conditions not considered a physical or mental impairment, and remove the provision that states “an employer may not be found to have engaged in an unlawful employment practice solely because the employer fails to provide reasonable accommodation to an individual with a disability arising out of transsexualism.”

Breastfeeding and Lactation: Effective September 29, 2019, all Oregon employers must provide a reasonable rest period to express milk each time an employee has a need to express milk. This replaces the requirement that an employer with 25 or more employees must provide a 30-minute rest period during each four-hour work period for an employee to express breast milk. If possible, employees must give the employer reasonable notice of the intent to express breast milk upon returning to work after childbirth, although failure to give notice is not grounds for discipline. Employers with 10 or fewer employees are exempt if providing the rest periods would be an undue hardship on business operations.

Pennsylvania

Criminal Records: Effective June 28, 2019, employers are prohibited from requiring or requesting that individuals disclose information about their criminal history record if it has been expunged or is subject to limited access. The law also provides for employer immunity from liability for any claims arising out of employee misconduct that relate to the employee's criminal history record that has been expunged.

Tennessee

Antibullying: Effective April 23, 2019, Tennessee’s Healthy Workplace Act expands to cover private employers. Under the act, an employer that implements a compliant antibullying policy may be immune from liability for any employee's abusive conduct that results in negligent or intentional infliction of mental anguish.

Drug Testing: Effective May 10, 2019, Tennessee’s drug testing law is amended to prohibit a medical review officer from considering an employee’s prescriptions issued more than six months prior to a positive confirmed drug result when determining a valid prescription and immunity from actions employers may take following such a result.

Texas

Dallas Paid Sick Leave: Effective August 1, 2019, employers with more than five employees are required to provide eligible employees with earned paid sick time. Employers with five or fewer employees must comply beginning August 1, 2021. An employee who works at least 80 hours in Dallas in a year is eligible to earn one hour of paid sick leave for every 30 hours worked. An eligible employee who works for an employer with more than 15 employees may accrue up to 64 hours in a year. All others may accrue up to 48 hours.

Utah

Volunteer Emergency Responder Leave: Effective May 14, 2019, employers with one or more employees are prohibited from terminating an employee solely for being an emergency services volunteer or for being late for or absent from work to respond to an emergency. Employees must make a reasonable effort to notify the employer of their absence or tardiness. The time missed may be unpaid. Employers may request a written statement from the employee’s emergency services supervisor or acting supervisor regarding the employee’s response to an emergency.

Vermont

Criminal Background: Effective July 1, 2019, employers may not require a job applicant to provide information about criminal records that are expunged or sealed. If an employer does make such inquiries, the applicant may respond that no criminal record exists.

Virginia

Employment Records: Effective July 1, 2019, SB 1724 requires an employer, upon receipt of a written request from a current or former employee or employee's attorney, to provide a copy of all records retained by the employer in any format, reflecting the employee’s:

• Dates of employment.
• Wages or salary during employment.
• Job description and job title during employment.
• Injuries, if any, sustained during employment.

An employer must provide the copies within 30 days of the written request or provide notice that it needs a 30-day extension.

Washington

Lactation Accommodation: Effective July 28, 2019, Washington's pregnancy accommodations law is amended to require a covered employer to provide:

• Reasonable break time for an employee to express breast milk, for two years after the child's birth, each time the employee has need to express the milk.
• A private location, other than a bathroom (if such a location exists at the place of business or worksite), that may be used by the employee to express breast milk. If the location does not have a space for the employee to express milk, the employer must work with the employee to identify a convenient location and work schedule that accommodates the employee's needs, unless doing so would create an undue hardship for the employer.

Salary History: Effective July 28, 2019, Washington’s Equal Pay and Opportunities Act prohibits employers from:

• Seeking a job applicant's wage or salary history, either from the applicant or the applicant's current or former employer.
• Requiring an applicant's prior wage or salary history to meet certain criteria.

However, the act allows employers to confirm an applicant's wage or salary history if the applicant has voluntarily disclosed it or after the employer has negotiated with and made a job offer with compensation to the applicant.

The act also requires employers with 15 or more employees to, under certain circumstances, provide pay scale or wage information to applicants and internal employees upon their request.