State & Local Employment Law Developments: Q3 2020

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 and your organization stay in compliance. (Please note that developments specifically related to COVID-19 are not included.) This quarter, state and local legislatures were particularly active in passing laws addressing employee classification, sexual harassment training, lactation accommodation, criminal background inquiries and a variety of unpaid and paid leaves.

California

Employee Classification: Effective September 4, 2020, AB 2257 amends California’s independent contractor law to include:

• Modifying the exemption for business-to-business contracting relationships.
• Updating the exemption for relationships between a referral agency and a service provider.
• Revising the exemption for professional services.
• Adding exemptions for certain music industry professionals, data aggregators, workers in the insurance and financial services industries, and others.

Family and Medical Leave: Effective January 1, 2021, SB 1383 expands family and medical leave entitlements under the California Family Rights Act (CFRA) and the New Parent Leave Act (NPLA). These changes include expansions of:

• The definition of employers as those with five or more employees with no distance limitation (previously, 50 or more employees within a 75-mile radius under CFRA and 20 or more employees within a 75-mile radius under NPLA).
• The definition of family member to include grandparents, grandchildren or siblings.
• Coverage, including up to 12 weeks of unpaid leave for a qualifying exigency related to the covered active duty or call to covered active duty of the employee’s spouse, domestic partner, child or parent in the Armed Forces.

SB 1383 also removes exemptions from the CFRA to require the following:

• Employers that employ both parents of a child must provide up to 12 weeks of leave to each employee for child bonding leave (previously, employers were only required to provide both employees with a combined total of 12 weeks).
• Employers must reinstate a “key employee” given there is no longer a “key employee” exception (previously, employers were allowed to refuse reinstatement of a “key employee” in certain circumstances).

Paid Family Leave: Effective January 1, 2021, an employee may be eligible for paid family leave insurance benefits for a qualifying exigency related to the covered active duty or call to covered active duty of the employee's spouse, domestic partner, child or parent who is in the US Armed Forces.

Settlement Agreements: Effective January 1, 2021, employers may use a no-rehire provision in an employment dispute settlement agreement with an employee who filed an official complaint in instances when an employer, before the employee makes the complaint, has made and documented a good faith determination that the employee engaged in criminal conduct. This is in addition to the existing exception that applies when an employee who has filed a complaint has been found to have engaged in sexual harassment or sexual assault. Other than these two exceptions, California employers are otherwise prohibited from using a no-rehire provision in an employment dispute settlement agreement.

Sexual Harassment Training: By January 1, 2021, employers with five or more employees must provide supervisors with at least two hours of training and nonsupervisory employees with at least one hour of training, 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.

Colorado

Overtime and Minimum Pay: Effective July 15, 2020, amendments to the Colorado Overtime and Minimum Pay Standards (COMPS) Order include:

• Modifications to the itemized earnings statements provided to employees each pay period.
• Exempting certain direct support professionals/direct care workers from the daily overtime rule.
• Clarification on flexibility from Colorado's rest break requirements for certain Medicaid-funded services providers.

Paid Sick Leave and Supplemental Public Health Emergency Leave: Effective January 1, 2021, Colorado employers with 16 or more employees are required to provide paid sick and safe leave to eligible employees. Employees accrue one hour of paid sick and safe leave for every 30 hours worked, up to 48 hours each year. Employees may use up to 48 hours each year for the following reasons:

• The employee's or a covered family member's mental or physical illness, injury or health condition; need for medical diagnosis, care or treatment; or need for preventative medical care.
• The employee or a covered family member is a victim of domestic abuse, sexual assault or harassment and needs to be absent for related purposes.
• Closure of the employee's place of business or a child's school or place of care by order of a public official due to a public health emergency.

Employers must allow employees to carry over up to 48 hours of unused, accrued paid sick and safe leave to the following year.

Employers with fewer than 16 employees are required to provide paid sick and safe leave beginning on January 1, 2022.

In addition to paid sick and safe leave, employees may also be entitled to up to 80 hours per year of paid supplemental public health emergency leave.

For additional information regarding this law, please refer to our firm’s legal update.

Salary History/Equal Pay: Effective January 1, 2021, the Equal Pay for Equal Work Act prohibits employers from:

• Seeking a prospective employee's wage rate or relying on the individual's wage rate history to determine a wage rate.
• Discriminating or retaliating against a prospective employee who fails to disclose his or her wage rate history.
• Discharging, discriminating or retaliating against a current employee who invokes the law on behalf of another or assists in its enforcement.
• Discharging, disciplining, discriminating against, coercing, intimidating, threatening, or interfering with an employee who inquired about, disclosed, compared, or otherwise discussed his or her wage rate.
• Paying unequal wages based on sex for substantially similar work except where differences in wages are due to a seniority system; merit system; system that measures earnings by production quantity or quality; education, training, or experience that is reasonably related; or travel that is a regular and necessary condition of the job.
• Prohibiting an employee from disclosing his or her wage rate as a condition of employment.
• Requiring an employee to sign a waiver or similar document that prohibits the employee from disclosing wage rate information or has the appearance of denying the employee the right to disclose the employee’s wage rate information.

In addition, the Act requires an employer to:

• Disclose in every job posting the hourly or salary pay rate, or a range of the hourly or salary pay rate, and a general description of all benefits and other compensation to be offered to an applicant upon hiring.
• Make reasonable efforts to announce or post opportunities for promotion to all current employees on the same calendar day and before making a promotion decision.

Connecticut

Paid Family and Medical Leave: Effective January 1, 2021, employers are required to begin making deductions from the pay of eligible employees to fund Connecticut's Paid Family and Medical Leave Program (CPFML) benefits. Employers must withhold no more than 0.5% of a covered employee’s earnings.

CPFML benefits will become available to covered employees beginning January 1, 2022.

Sexual Harassment Training: The deadline for employers to complete the required sexual harassment training of all supervisors and nonsupervisors has been extended by 90 days to January 1, 2021.

For additional information regarding this law, please refer to our firm’s legal update.

Florida

E-Verify: Effective July 1, 2020, employers that apply for taxpayer-funded incentives through the state Department of Economic Opportunity must enroll in and use E-Verify for all new employees.

Effective January 1, 2021, all employers are required to verify the employment eligibility of newly hired employees by either participating in E-Verify or keeping copies of documents presented by employees in completing their Form I-9s. Certain employers with state contracts must use E-Verify.

Georgia

Lactation Accommodation: Effective August 1, 2020, amendments to Georgia’s lactation accommodation law require employees to provide paid break time and a private location to employees who wish to express break milk at the work site during work hours. An undue hardship exemption may be available for employers with fewer than 50 employees. The law was previously written such that these accommodations were optional and break time was unpaid.

Hawaii

Criminal Background: Effective September 15, 2020, Hawaii’s lookback period for criminal conviction inquiries has been shortened. Employers may only consider a prospective employee’s felony convictions from the last seven years and misdemeanor convictions from the last five years rather than the 10-year lookback that was previously in place for both felonies and misdemeanors.

Nondisclosure Agreement: Effective September 15, 2020, employers may not require employees to enter into a nondisclosure agreement that prevents them from disclosing or discussing sexual harassment or sexual assault occurring in the workplace, at work-related events, between employees, or between an employer and an employee. Employers are prohibited from retaliating against employees for disclosing or discussing sexual harassment or sexual assault.

These restrictions do not apply to:

• Human resources employees expected to maintain the confidentiality of an investigation as part of their official duties.
• Employees requested to maintain the confidentiality of an ongoing human resources investigation.
• Proceedings of peer review committees and quality assurance committees of certain health care organizations.

Domestic Violence Leave: Effective January 1, 2021, SB 2638 changes the documentation that employers may request from an employee to verify that they are a victim of domestic or sexual violence. Employers may request the following:

• Certified or exemplified retraining orders, injunctions against harassment, and documents from criminal cases.
• Documentation from a victim services organization or domestic or sexual violence program, agency or facility, including a shelter or safe house for victims of domestic or sexual violence.
• Documentation from a medical professional, mental health care provider, attorney, advocate, social worker or member of the clergy from whom the employee or the employee's minor child has sought assistance in relation to the domestic or sexual violence.

Illinois

Discrimination Claims: Effective July 1, 2020, an amendment to the Illinois Human Rights Act reduces the number of employees, from 15 to one, that an employer must have to be subject to state discrimination claims.

By October 1, 2020, employers are required to submit reports to the Illinois Department of Human Rights for any final, adverse judgments or administrative rulings entered against them in discrimination or sexual harassment matters during 2019. By July 2021, and before July 1 of each subsequent year, employers must file these reports for the preceding calendar year.

Iowa

Medical Marijuana: Effective July 1, 2020, amendments to Iowa’s medical marijuana law include the following:

• The low-THC restriction for medical marijuana use is removed.
• Employers aren't required to permit or accommodate medical marijuana use or possession in the workplace.
• Employers can implement policies that restrict employees' use of marijuana in order to promote workplace health and safety.
• Employers can include a provision prohibiting marijuana use in employee contracts.
• Employers can establish and enforce a zero-tolerance drug policy or a drug-free workplace through a drug testing policy.

Louisiana

Noncompete Agreements: Effective August 1, 2020, Louisiana’s noncompete agreement law is expanded to allow a corporation, partnership or limited liability company to enter into noncompete agreements with their shareholders, partners or members, respectively.

Maine

Paid Leave: Effective January 1, 2021, Maine employers with 11 or more employees are required to provide up to 40 hours of paid leave per year to eligible employees. Employees accrue one hour of leave for every 40 hours worked, up to 40 hours per year. Employees may use up to 40 hours of paid leave per year and may carry over up to 40 hours of paid leave per year. Paid leave may be used for any reason.

Maryland

Wage Statements for Certain Tipped Employees: Effective October 1, 2020, Maryland restaurant employers are required to provide a tip credit wage statement each pay period to each employee for whom they claim a minimum wage tip credit. The wage statement must include the employee's hourly rate of pay and employer-paid cash wages plus all reported tips for all tip credit hours worked for each week in the pay period. Such statements must be provided to employees no later than two weeks following the end of the pay period. Employers may fulfill this requirement by providing an online system through which employees can access their tip credit wage statements.

Massachusetts

Paid Family and Medical Leave: Effective July 24, 2020, the Massachusetts Department of Family and Medical Leave issued amended final regulations to the paid family and medical leave law to include:

• Expanding the definition of accrued paid leave.
• Changing usage of intermittent leave.
• Clarifying the seven-day waiting period for job protected leave and employer reimbursement.

Effective January 1, 2021, qualified employees may be eligible for up to a total of 26 weeks of paid family and medical leave benefits, which are funded by a combination of employer and employee contributions administered through the state. Family leave benefits are payable for up to 12 weeks per year, which can be extended to 26 weeks to care for a family member who is a servicemember. Medical leave benefits are payable for up to 20 weeks per year.

Overtime for Retail Employees: Effective July 24, 2020, retail employers with eight or more employees must pay overtime on Juneteenth (June 19).

Effective January 1, 2021, the overtime rate for retail employees who work on Sundays and certain holidays decreases from one and three-tenths times the regular rate of pay to one and two-tenths times the regular rate of pay.

Missouri

St. Louis Criminal Background: Effective January 1, 2021, employers in St. Louis with 10 or more employees are prohibited from:

• Basing a hiring or promotional decision on a job applicant's criminal history or related sentence, unless the employer can show that the decision is based on all information available, including the frequency, recentness and severity of the criminal history, and the history is reasonably related to the duties and responsibilities of the position.
• Posting job advertisements that exclude applicants based on criminal history.
• Using exclusionary language in job applications and other forms used in the hiring process.
• Inquiring into or requiring applicants to disclose their criminal history on initial job applications and other forms used in the initial phase of hiring.
• Seeking publicly available information regarding a job applicant's criminal history.

These prohibitions do not apply to jobs where federal, state or St. Louis laws or regulations prohibit employers from employing individuals with certain criminal histories.

However, an employer may inquire about a job applicant's criminal history:

• After determining that the applicant is otherwise qualified for the position.
• After the applicant has been interviewed for the position.
• If such an inquiry is made of all applicants in the final selection pool from which the position will be filled.

New Mexico

Bernalillo County Paid Leave: The effective date of the Bernalillo County law to provide paid leave to employees has been postponed from July 1, 2020, to October 1, 2020, due to COVID-19’s economic impact on businesses. Effective October 1, 2020, employers with a physical premises and two or more employees within Bernalillo County must provide paid leave to employees that can be used for any reason.

Employees accrue one hour of paid leave for every 32 hours worked, up to 28 hours in a year. Up to 28 hours of paid leave may be used in a year.

Effective October 1, 2021, employers with 11 or more employees must provide accrual and use of paid leave of up to 44 hours in a year.

Effective October 1, 2022, employers with 35 or more employees must provide accrual and use of paid leave of up to 56 hours in a year.

New York

Paid Family Leave: Effective January 1, 2021, employees are eligible to receive up to 12 weeks of paid family leave benefits during any 52-week calendar period at 67% of their average weekly wage (previously, 10 weeks at 60%).

Paid Sick Leave: Effective January 1, 2021, employees may begin using accrued paid sick leave (employees begin accruing paid sick leave on September 30, 2020).

For additional information regarding this law, please refer to our firm’s legal update.

Tip Credit: Effective December 31, 2020, the tip credit is eliminated for workers covered by the Minimum Wage Order for Miscellaneous Industries and Occupations to include car wash attendants, nail salon workers, tow-truck drivers, dog groomers, wedding planners, tour guides, valet parking attendants, hairdressers, aestheticians, golf and tennis instructors and door-persons.

Suffolk County Hairstyle and Religious Garb Discrimination: Effective July 23, 2020, amendments to the Suffolk County Human Rights Act prohibit discrimination based on an individual’s visible traits, such as natural hair texture, protective hairstyles (including braids, locs and twists); and the donning of religious garments or items.

Oregon

Family Leave: Effective September 14, 2020, regulations to the Oregon Family Leave Act (OFLA) are amended to allow for employees to take sick child leave under the OFLA to care for their child when the child's school or child care provider has been closed in conjunction with a statewide public health emergency declared by a public health official.

Portland Facial Recognition: Effective January 1, 2021, employers may not use facial recognition software in any places of public accommodation in Portland defined as “[a]ny place or service offering to the public accommodations, advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements, transportation or otherwise.” Exemptions to the ban allow for the use of facial recognition for the following:

• To the extent necessary for an employer to comply with federal, state or local laws.
• For user verification purposes by an individual to access their own personal or employer-issued communication and electronic devices.
• In automatic face detection services in social media applications.

Pennsylvania

E-Verify for Construction Industry: Effective October 7, 2020, employers in the construction industry that transact business in Pennsylvania and employ at least one employee in Pennsylvania are required to use E-Verify to verify the employment eligibility of new employees.

South Carolina

Lactation Accommodation: By August 24, 2020, employers must:

• Provide an employee with reasonable unpaid break time or permit an employee to use paid break or meal time each day to express breast milk, unless doing so would create an undue hardship on the operations of the employer.
• Make reasonable efforts to provide a room or other location (other than a toilet stall) in close proximity to the work area where an employee can express milk in privacy.

Tennessee

Pregnancy Accommodations: Effective October 1, 2020, employers with 15 or more employees are required to provide reasonable accommodations for an employee's limitations related to her pregnancy, childbirth or related medical conditions, unless doing so would create an undue hardship for the employer.

Reasonable accommodations include:

• Making existing facilities readily accessible and usable.
• More frequent, longer or flexible breaks.
• A private place, other than a bathroom stall, for the purpose of expressing milk.
• Modified food or drink policy.
• Modified seating or allowing the employee to sit more frequently if the job requires standing.
• Providing assistance with manual labor and limits on lifting.
• A temporary transfer to a vacant position.
• Job restructuring or light duty, if available.
• Acquiring or modifying equipment, devices or an employee's workstation.
• A modified work schedule.
• Flexible scheduling for prenatal visits.

Virginia

Employee Classification: Effective January 1, 2021, Internal Revenue Service (IRS) guidelines will be applied in determining whether a worker is an independent contractor or an employee under multiple Virginia laws to include minimum wage, unemployment compensation, workers’ compensation and tax laws. Employers that misclassify employees as independent contractors are subject to civil penalties and debarment from public contracts.

Washington

Sexual Harassment and Assault Protections for Isolated Workers: Effective January 1, 2021, employers in the retail, security guard and property services contractor industries and hotel and motel employers with less than 60 guest rooms (hotel and motel employers with 60 or more guest rooms were required to comply with these requirements starting January 1, 2020) 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.

In addition, property services contractors must submit specific documentation to the Washington State Department of Labor & Industries.