State & Local Employment Law Developments: Q4 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 minimum wage rates and COVID-19 are not included.)

Arkansas

Supplemental Withholding Rate Drop: Effective January 1, 2021, the rate of withholding on supplemental wages in Arkansas decreases to 5.9%. Some examples of supplemental wages include tips, bonuses, back pay, commissions and severance pay. The rate was previously reduced from 6.9% in 2019 to 6.6% in 2020, and Arkansas Revenue Division officials have drafted proposals that would further drop the rate over the next two years.

California

For information regarding new California laws for 2021, please refer to our firm’s legal update on the subject.

Connecticut

Sexual Harassment Training: The deadline for employers to complete the required sexual harassment training of all supervisors and nonsupervisors has been extended by 39 days to February 9, 2021.

Georgia

Creditor Garnishment: Effective January 1, 2021, amendments to Georgia’s creditor garnishment law extends creditor garnishments to continue for 1,095 days (currently 180 days).
The maximum amount that can be garnished for private student loan debts is 15% of the employee's weekly disposable income if the summons or court order conspicuously states that it is based on private student loan debt.

Should an employer receive an executed Modification of Continuing Garnishment form, the employer must comply with the lesser withholding amount agreed upon by the creditor and the employee so long as the form has been filed with the garnishment court.

Illinois

30-Day Withholding Threshold for Nonresidents: Effective January 1, 2021, for tax years ending on or after December 31, 2020, the localization test for income tax withholding is amended to provide that compensation paid to a nonresident is considered paid in Illinois and subject to Illinois income tax withholding if:

• Some of the nonresident's services are performed within Illinois;
• The nonresident's services performed within Illinois are nonincidental to the services the individual performs outside of Illinois; and
• The nonresident's services are performed in Illinois for more than 30 working days during the tax year.

If an employer uses a time and attendance system to track daily where employees work, the data may be used to substantiate that a nonresident employee met the 30-day threshold.

Maryland

Montgomery County Minimum Work Week for Building Maintenance Workers: Effective January 1, 2021, Montgomery County sets a minimum work week for each employee working as a janitor, building cleaner, security officer, concierge, door person, handyperson, or building superintendent at an office building within the county covering at least 350,000 square feet. This also applies to county government maintenance workers working in a building meeting the same size and type requirements. Covered employers must ensure that the minimum work week for each building maintenance worker at a covered location is at least 30 hours unless the employee is taking covered leave. This rule does not apply to a person working in a building owned by the United States, any State, or any local government.

The ordinance also contains retaliation protections.

Montgomery County Harassment Protection: Effective January 15, 2021, the Montgomery County, Maryland, Human Rights Ordinance is amended to include subjecting an individual to harassment, including sexual harassment, as a discriminatory employment practice.

The term “harassment” includes verbal, written or physical conduct when:

• The conduct is based on an individual’s race, color, religious creed, ancestry, national origin, age, sex, marital status, sexual orientation, gender identity, family responsibilities, genetic status, or disability;
• Submission to the conduct is made either explicitly or implicitly a term or condition of an individual’s employment;
• Submission to or rejection of the conduct is used as a basis for employment decision affecting the individual; or
• The conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating a working environment that is perceived by the victim to be abusive or hostile; and
• A reasonable victim of discrimination would consider the conduct to be more than a petty slight, trivial inconvenience, or minor annoyance.

Sexual harassment includes unwelcome sexual advances; requests for sexual favors; or other verbal, written or physical conduct of a sexual nature.

Montgomery County Ban the Box Law: Effective February 19, 2021, the Montgomery County, Maryland, Human Rights Ordinance is amended to alter certain provisions related to criminal record inquiries by employers.

Specifically, the amendments:

• Expand the application of the law to all employers with at least one full-time employee in the County;
• Prohibit employers from inquiring into an applicant's criminal history before extending a conditional employment offer; and
• Prohibit employers from inquiring into or basing hiring or promotion decisions on certain categories of arrest and conviction records listed in the ordinance.

Minnesota

City of Minneapolis Freelance Worker Protections: Effective January 1, 2021, the Minneapolis Freelance Worker Protections Ordinance regulates any commercial hiring party engaging freelance workers to perform services within the City of Minneapolis. This rule is applicable in either of the following instances:

• The total 12-month aggregate compensation to a particular freelance worker is $600 or more
• Compensation within seven consecutive days is $200 or more

The ordinance lays out specific requirements that the hiring party must include in the written contract.

Montana

Legalization of Recreational Marijuana: Effective January 1, 2021, the recreational use of marijuana by adults aged 21 and over is legal in Montana under the Marijuana Regulation and Taxation Act (the Act).

Regarding employers, the Act does not require an employer to permit or accommodate recreational use of marijuana in any workplace or on the employer's property or prohibit an employer from disciplining an employee for violation of a workplace drug policy or for working while under the influence of marijuana. An employer is also entitled to refuse to hire an individual or take an adverse employment action against an individual with respect to hiring, tenure, terms, conditions, or privileges of employment because of the individual's violation of a workplace drug policy or intoxication by marijuana while working.

New Jersey

Legalization of Recreational Marijuana: Effective January 1, 2021, the recreational use of marijuana by adults aged 21 and over is legal in New Jersey. Legislation is currently pending in the state legislature in order to address several issues, including how the legalization affects an employer's right to maintain a drug-free workplace as well as employer refusal to hire or employ any person or discharge from employment or take adverse action against any employee because that person does or does not us cannabis items, unless the employer has a rational basis for doing so which is reasonably related to the employment, including the responsibilities of the employee or prospective employee.

Ohio

City of Columbus Wage Theft Ordinance: Effective January 1, 2021, the City of Columbus Wage Theft Prevention and Enforcement Ordinance (the Ordinance) takes effect. This Ordinance applies to City contracts, City vendors, and certain financial incentive agreements with the City. The Ordinance authorizes the City and the Columbus Wage Theft Prevention and Enforcement Commission (the Commission) to investigate and penalize wage theft, payroll fraud and worker misclassification.

When initially seeking to contract with the City or applying for renewal as a City vendor, entities must self-report any adverse determinations against them within the past three years. Once an entity self-reports an adverse determination, the Commission places the entity on a published list. The entities on the adverse determination list are prohibited from contracting or entering into any financial incentive agreements with the City or with any other entity on the list.

Pennsylvania

City of Pittsburgh Paid Sick Days Act: Effective March 15, 2021, employees who work at least 35 hours per calendar year within the city will accrue sick time. Regardless of company size, beginning March 15, 2020, employees shall accrue a minimum of (1) hour sick time for every 35 hours worked for a Pittsburgh employer. For the first year after March 15, 2020, the sick time is unpaid. Subsequently, it is paid. Employees working at an employer with fewer than 15 employees are permitted to accrue no more than 24 hours of sick time unless the employer designates a higher amount. Employees working at an employer with 15 or more employees are permitted to accrue no more than 40 hours of sick time unless the employer designates a higher amount. Employers with 15 or more employees must provide up to 40 hours of paid sick leave each year, beginning March 15, 2020.