State & Local Employment Law Developments: Q4 2022

The trend of increasing workplace regulations by state and local governments continued throughout the fourth quarter of 2022. 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 related to issues such as minimum wage rates and COVID-19 are not included.)

Alabama

Firearm Protections: Effective January 1, 2023, employers may not restrict employees’ transportation or storage of legal firearms in employees’ privately owned vehicles at the workplace, subject to certain conditions and storage requirements. 

Arizona

Clean Slate: Effective December 31, 2022, Arizona permits individuals to petition to seal case records in certain circumstances. If an individual's petition to seal a criminal record is granted, the person may state on employment applications that they have never been arrested for, charged with or convicted of a crime, subject to certain exceptions.

California

See the October 2022 update for more information on California laws taking effect in 2023, including changes to Bereavement Leave and Protections for Workers During Emergency Conditions.

Discrimination Based on Reproductive Health Decisions: Effective January 1, 2023, the California Fair Employment and Housing Act (FEHA) is amended to prohibit discrimination based on reproductive health decision-making.

Hate Symbols in Places of Employment: Effective January 1, 2023, California has amended its penal code to criminalize the intentional display of certain hate symbols in particular locations, including places of employment, when the purpose of the display is to terrorize.

Los Angeles

Fair Work Week: The Los Angeles city council approved the Fair Work Week Ordinance (FWWO), which will take effect April 1, 2023. The FWWO requires covered retail employers in the city of Los Angeles to provide covered employees with:

• Good-faith estimates of their work schedules
• The right to request schedule changes
• Advanced notice of their work schedules
• Offers of additional work before hiring other workers
• Predictability pay for certain schedule changes
• Rest between shifts

Colorado

Final Wage Payment: Effective January 1, 2023, employers must provide specific notice before making deductions from final pay for employees who are terminated and have failed to return company property or pay. 

Paid Family and Medical Leave Premium Withholding: Effective January 1, 2023, withholdings begin for the Colorado Paid Family and Medical Leave (PFML) program. 

Connecticut

Clean Slate: Effective January 1, 2023, Connecticut’s new clean slate law prohibits employers from requiring current or prospective employees to reveal erased criminal record information and from discrimination based on this information. Employers must not inquire about a prospective employee’s prior arrests, criminal charges or convictions on an initial employment application (with certain exceptions) and must provide notice of the clean slate provisions on applications that inquire about the applicant’s criminal record.

Delaware

Final Paycheck: Effective October 7, 2022, employers must provide employees with their final paycheck by the next date on which the wages would normally be paid or three business days after the last day the employee worked — whichever is later — and employers who fail to comply are liable for the lower of the amount of unpaid wages or 10% the unpaid wages per day for as long as the delay continues.

Wage Theft: Effective October 7, 2022, Delaware expanded the definition of wage theft and made wage theft committed by an employer a criminal offense punishable as a misdemeanor or certain classes of felony, depending on the value of the theft. The state definition of “wage” has also been amended to the following: “compensation due to an employee by reason of the employee’s employment, payable in legal tender of the United States or check or bank draft convertible into cash on demand at full face value, subject to such deductions, charges, or allowances permitted by the regulations of” the Delaware Department of Labor.

District of Columbia

Expansion of Protections Under Human Rights Act: Effective October 1, 2022, the District of Columbia's Human Rights Act is amended to include within the definition of employee an individual working or seeking work as an independent contractor. In addition, the Act is amended to prohibit discrimination based on homeless status.

Georgia

Atlanta

Expansion of Protected Categories: Effective October 26, 2022, the Human Relations Code in Atlanta, Georgia, is amended to prohibit discrimination on the basis of criminal history status or gender expression. The ordinance applies to employers with 10 or more employees.

Illinois

Hairstyle Discrimination: Effective January 1, 2023, the definition of race under the Illinois Human Rights Act is amended to cover traits associated with race, including but not limited to hair texture and protective hairstyles such as braids, locks and twists.

Maryland

Medical Leave Retaliation and Notice Provisions: The anti-retaliation and notice provisions of Maryland's Time to Care Act of 2022, which provides employees with PFML, take effect on January 1, 2023. Covered individuals must make contributions beginning October 1, 2023, and employees may access PFML benefits beginning January 1, 2025.

Missouri

Recreational and Medical Marijuana: Missouri voters approved a ballot measure to legalize recreational cannabis in the state and amend the medical marijuana law. Effective December 8, 2022, employers are prohibited from discriminating against an employee with a medical marijuana identification card because they: (1) possess a medical marijuana identification card (whether for the employee or someone in the employee’s care); (2) lawfully use marijuana off the employer’s premises during nonworking hours; or (3) test positive for marijuana unless the employee used, possessed or was under the influence of marijuana while working. Employers can still conduct pre-employment, random, reasonable suspicion and post-accident drug testing for THC, but accommodations are needed for applicants and employees who test positive because of lawful off-duty medical use (excluding DOT-covered positions). It remains unclear whether employment protections under the state’s off-duty conduct law will extend to recreational cannabis used off-duty and off the employer’s premises.

New York

Paid Family Leave Covered Family: Effective January 1, 2023, New York’s Paid Family Leave (PFL) is expanding to include an employee’s biological, adopted, half or stepsibling as a covered family member. 

New York State Pay Transparency: On December 21, 2022, New York Governor Kathy Hochul signed legislation requiring all New York employers to list the minimum and maximum annual salary range or hourly range of compensation for all advertised jobs, promotions and transfer opportunities that can or will be performed, at least in part, in the state of New York. The new law will go into effect on September 17, 2023.

Electronic Postings: On December 16, 2022, New York Governor Hochul signed NY State Assembly Bill A7595, which requires all New York employers to post electronically (either on an employer’s website or by email) all workplace posters and to provide notice to employees that those postings are available electronically. As written, the law purports to require electronic posting of both federal and state workplace posters. The law went into effect immediately.  

Accommodations for Nursing Mothers: On December 9, 2022, New York Governor Hochul signed legislation that expands New York’s required accommodations for breastfeeding in the workplace, which will become effective June 7, 2023. Requirements for private employers now match those of state employers: employers must ensure “that pumping spaces are convenient and private, as well as include seating, access to running water and electricity, and a working space,” and employers must develop and implement a written policy for these rights. 

Lawful Absence Anti-Retaliation: New York Governor Hochul signed legislation which amends Section 215 of the New York Labor Law to prohibit employers from disciplining employees who take legally protected time off from work. Specifically, the amendments prohibit employers from “assessing any demerit, occurrence, or any other point, or deductions from an allotted bank of time, which subjects or could subject an employee to disciplinary action” for the use of “any legally protected absence under federal, local, or state law.” As a result, employers cannot maintain “no fault” attendance policies and procedures, which may result in penalizing workers for taking legally protected leave of absences. The law takes effect on February 19, 2023.

Protections Based on Citizenship and Immigration Status: On December 23, 2022, New York Governor Hochul signed legislation which amends the New York State Human Rights Law (NYSHRL) to prohibit discrimination, harassment and retaliation based on an individual’s citizenship or immigration status. Employers are still permitted to verify individuals’ citizenship or immigration status when such verification is required by law. The law went into effect immediately. 

New York City

Wage Transparency: Effective November 1, 2022, New York City employers with four or more employees must include a minimum and maximum salary or hourly wage in all listings for job openings and promotion or transfer opportunities in the city. See our previous update for more information. 

Westchester County

Wage Transparency: Effective November 6, 2022, it is an unlawful discriminatory practice for an employer in Westchester County, New York, with four or more employees to post a job, promotion or transfer opportunity without including the minimum and maximum salary for the position in the posting.

Oregon

Paid Sick Leave Employee Eligibility: Effective January 1, 2023, the Oregon Sick Time Law (OSTL) provisions related to eligibility are amended. 

Workplace Fairness Act: Effective January 1, 2023, the Oregon Workplace Fairness Act — which restricts nondisclosure agreements from applying to disclosure of discriminatory or harassing conduct — is amended to clarify application to former employees, prohibit settlement offers that are conditional on an employee’s request for a nondisclosure provision, and require that employers provide their antidiscrimination policy to any employee asked to sign an agreement with a nondisclosure provision. 

Pennsylvania

Protections for LGBTQ+ Individuals: The Pennsylvania Human Relations Commission has approved regulations that strengthen anti-discrimination protections in employment, including for LGBTQ+ individuals and for traits associated with race, including hair texture and protective hairstyles.

Rhode Island

Pay Equity: Rhode Island's pay equity law takes effect on January 1, 2023. Under this law, employers must ensure pay equity not only based on sex, but also based on race, color, religion, sexual orientation, gender identity or expression, disability, age and national origin. The law also prohibits retaliation, restricts salary history inquiries on employment applications, and requires that employers provide applicants and employees with pay ranges for the positions they apply for or hold.

Tennessee

E-Verify Employer Coverage Threshold: Beginning January 1, 2023, the Tennessee Lawful Employment Act is amended to require employers with 35 or more employees to use the federal E-Verify program to verify the legal status of new employees hired on or after that date. The prior threshold was 50 employees.

Virginia

Human Trafficking: Effective January 1, 2023, every hotel proprietor in Virginia must require covered employees to complete an approved training course on recognizing and reporting instances of suspected human trafficking. 

Washington

Wage Transparency: Effective January 1, 2023, employers in Washington with 15 or more employees must include the pay range (including a general description of benefits and other compensation) in each posting for a job opening.