State & Local Employment Law Developments: Q2 2023

At a Glance

The trend of increasing workplace regulations by state and local governments continued throughout the second quarter of 2023.

The trend of increasing workplace regulations by state and local governments continued throughout the second quarter of 2023. 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.

Arkansas

Hair Discrimination: Effective July 31, 2023, Arkansas’ CROWN Act will expand the Arkansas Civil Rights Act to include discrimination based on hairstyle under its definition of racial discrimination. The amended Arkansas Civil Rights Act will include specific protections for natural, protective or cultural hairstyles.

Child Labor: Effective July 31, 2023, Arkansas will implement the Youth Hiring Act of 2023, which repeals Arkansas’s child labor work permit, allowing employers to hire children under the age of sixteen for jobs without obtaining a permit from the Director of the Arkansas Division of Labor.

California

Irvine

Hotel Worker Protection Ordinance: A portion of Irvine’s Hotel Worker Protection Ordinance took effect on May 21, 2023. The ordinance limits hotel employee workload based on square footage, imposes a maximum room cleaning quota, and limits the number of hours that hotel employees can work without written employee consent.

Los Angeles

Freelance Worker Protections: The Los Angeles Freelance Worker Protections Ordinance takes effect July 1, 2023. The ordinance requires written contracts between employers and freelance workers if the contract is for $600 or more, requires employers to make timely payments to freelance workers, and prohibits retaliation.

Fair Workweek: The Los Angeles Fair Workweek Ordinance took effect on April 1, 2023. The ordinance requires covered employers (retail businesses with more than 300 employees, including franchises) to provide covered employees with good faith estimates of employees’ work schedules, the right to request schedule changes, advanced notice of employees’ work schedules, offers of additional work before hiring other workers, predictability pay for certain schedule changes, and a mandatory rest period between shifts.

Colorado

Wage Theft Enforcement Fund: Effective April 1, 2024, the Colorado Department of Labor implemented the Wage Theft Enforcement Fund. The fund enables the Colorado Department of Labor to directly repay victims of wage theft or underpayment and pursue repayment from employers for wage theft or underpayment.

Delaware

Employment Provisions of Recreational Marijuana Law: Effective April 23, 2023, Delaware legalized recreational marijuana by passing DE H.B. 1 and DE H.B. 2. The law did not impose any requirements or restrictions on employers to alter accommodation or disciplinary policies related to marijuana use, but it did uphold protections for employees using medical marijuana.

Florida

Prohibition of COVID-19-Related Employment Requirements: Effective June 1, 2023, Florida implemented FL S.B. 252, which prohibits employers from requiring proof of COVID-19 vaccination or COVID-19 testing as a condition of employment. The law also prohibits employment discrimination against individuals for refusing COVID-19 vaccination, COVID-19 testing or the use of face coverings.

Concealed Carry: Effective July 1, 2023, Florida has implemented FL H.B. 543 to remove permit or license requirements to carry a concealed weapon or firearm. However, employers can still limit or prevent employees and consumers from bringing concealed weapons onto their property.

E-Verify Employer Coverage Threshold: Effective July 1, 2023, S.B. 1718 requires employers with twenty-five or more employees to use the federal E-Verify system to confirm the legal status of all employees hired after January 1, 2021. Please see our update for more information.

Georgia

Vaping Prohibition: Effective July 1, 2023, Georgia has amended O.C.G.A. § 31-12A-2 to prohibit vaping and electronic smoking in enclosed places of employment.

Voting Leave: Effective July 1, 2023, Georgia has amended O.C.G.A. § 21-2-404, requiring employers to give their employees time off to vote in-person on a day designated for early voting. Georgia also protects voting leave for employees whose workday begins more than two hours after polls open or ends more than two hours before polls close.

Repeal Sunset on Kin Care Leave: Effective May 1, 2023, Georgia has repealed the sunset provision on the Georgia kin care leave requirement under O.C.G.A. § 31-1-10. Georgia’s kin care leave requires employers with twenty-five or more employees who provide paid sick leave to allow employees to use up to five sick leave days per calendar year to care for an immediate family member.

Hawaii

Increased Firearm Restrictions: Effective July 1, 2023, Hawaii has amended its firearms laws through HI S.B. 1230. Among other things, the amended laws state that employees and others must be given express authorization by private employers to lawfully carry firearms on their property.

Idaho

Prohibition of COVID-19 Vaccination Mandates for Employees: Idaho’s Coronavirus Stop Act took effect on April 6, 2023. The act prohibits employers from requiring employees to get a COVID-19 vaccine (with limited exceptions, including federal law requirements) and prohibits employers from offering different terms of employment based on whether an employee has received a COVID-19 vaccine. The law permits employers to incentivize obtaining the COVID-19 vaccine and provide time off from work for it, as long as there is no ongoing difference between terms of employment based on vaccination status.

Expansion of Unemployment Benefits Access: Effective July 1, 2023, Idaho has amended Idaho Code § 72-1366 to protect individuals who voluntarily left employment as a result of domestic violence and military spouses who relocated with their spouse from unemployment benefits disqualification.

Illinois

Chicago

Ban the Box: Effective April 24, 2023, Chicago amended its Ban the Box Ordinance to prohibit employers from inquiring about or using arrest records to reject an applicant or change an employee’s terms of employment.

Indiana

Physician Noncompete Agreements: Effective July 1, 2023, Indiana has amended its Physician Noncompete Agreements Law to prohibit noncompete agreements with primary care physicians and allow other physicians to purchase a release from noncompete agreements.

Maine

Pay Frequency Exemption: Effective September 19, 2023, ME S.B. 515 exempts members of an employer’s family, salaried employees, employees of limited liability partnerships, and employees of S corporations from Maine’s requirement that employees receive compensation at regular intervals of at most sixteen days apart.

Maryland

Recreational Marijuana Legalization: Effective July 1, 2023, Maryland has legalized recreational marijuana use under Maryland Constitution Article XX, § 1. Maryland has not yet clarified related protections for employees using recreational marijuana.

Noncompete Wage Threshold: Maryland has amended its Labor and Employment Code § 3-716 to prohibit employers from including a noncompete provision in an employment contract with an employee earning less than or equal to 150% of Maryland’s minimum wage. The law takes effect on October 1, 2023.

Paid Family and Medical Leave Contributions: Maryland delayed the date that the Maryland Paid Family and Medical Leave Law becomes effective from October 1, 2023, to October 1, 2024. Among other changes, the amendments to the law set the total contribution rate, provide that employees cannot be required to use certain paid leave while receiving program benefits, and add “domestic partner” to the covered list of family members. The law will require covered employers to make contributions to fund paid family and medical leave benefits, accessible to employees beginning January 1, 2026.

Michigan

Discrimination: Michigan’s Elliot-Larsen Civil Rights Act was expanded, effective June 14, 2023, to prohibit discrimination based on sexual orientation, gender identity and gender expression.

Right-to-Work: Michigan repealed its Right-to-Work laws. Effective March 2024, it will once again be legal for collective bargaining agreements to include clauses that require employees to pay union dues or fees as a condition of employment.

Minnesota

Salary History Inquiries: Minnesota amended its Human Rights Act to prohibit employers from considering an applicant’s salary history for purposes of determining the applicant’s compensation or benefits. This law will take effect January 1, 2024.

In addition, please see our previous Minnesota-specific update on information on the following laws or amendments that have taken effect in 2023:

• Ban on noncompete agreements
• Expanded earned sick and safe leave requirements
• Prohibition on restrictive franchise agreements
• Modification to wage disclosure protection
• Added protections for nursing mothers and pregnant employees
• Prohibition on “captive audience” meetings for religious or political matters
• Wage protection for construction workers
• Paid family and medical leave
• Legalization of recreational cannabis
• Changes to Minnesota’s Drug and Alcohol Testing in the Workplace Act

Bloomington

Sick and Safe Leave: Effective July 1, 2023, the Bloomington Earned Sick and Safe Leave Ordinance requires employers with five or more employees to provide eligible employees with paid sick and safe leave. The ordinance also requires employers with fewer than five employees to provide eligible employees with unpaid sick and safe leave.

St. Paul

Sick and Safe Leave: Effective June 24, 2023, St. Paul amended its paid sick leave administrative rules to align with the St. Paul Earned Sick and Safe Time (ESST) Ordinance. The amended rules define independent contractor and year, as well as specifying employee documentation requirements, temporary worker sick leave coverage, and accrual and carryover requirements for earned sick and safe time.

Nevada

Final Pay Law: Effective July 1, 2023, an employer must immediately pay an employee who is on nonworking status all wages due under Nevada’s Final Pay Law. An employee is considered nonworking if they are employed and will return to work but are temporarily laid off.

New Jersey

NJ-WARN Act Amendments: Amendments to the New Jersey WARN Act took effect on April 10, 2023, after a multi-year delay due to COVID-19. The amended New Jersey WARN Act imposes significant additional requirements for employers, including mandatory notice and severance if a layoff impacts 50 or more employees in New Jersey. Please see our LaborSphere blog about the amended New Jersey WARN Act for additional information.

Temporary Workers’ Bill of Rights: Effective May 7, 2023, temporary staffing agencies and their clients must follow the New Jersey Temporary Workers’ Bill of Rights’ notice and antiretaliation provisions. Please see our LaborSphere blog about the New Jersey Temporary Workers’ Bill of Rights for additional information.

Child Labor Law: Effective June 1, 2023, New Jersey’s child labor law was amended to require that minors register with the New Jersey Department of Labor and Workforce Development. Additionally, the amendment repealed the parental consent requirements for most exemptions from restrictions on working time.

New Mexico

New Mexico Human Rights Act: Effective June 16, 2023, the Human Rights Act was amended to add gender as a protected characteristic. Additionally, the definitions of “gender identity,” “sex” and “sexual orientation” were modified to include LGBT and intersex individuals.

New York

Noncompete Ban: On June 20, 2023, the New York State Assembly passed A1278B, which would impose a complete ban on employment-related noncompete agreements and would go into effect 30 days after the law is signed by the governor. Governor Kathy Hochul is expected to sign the bill into law. Please see our recent update for more information.

Accommodations for Nursing Mothers: 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.

Warehouse Worker Protection Act: Effective June 19, 2023, the Warehouse Worker Protection Act was amended to alter several provisions regarding definitions, notice, recordkeeping, employees’ rights to record inspections, retaliation, and enforcement. The Warehouse Worker Protection Act applies to employers with over 100 employees at a single warehouse in New York, or over 1,000 employees in warehouses across the state. Finally, employers must provide each employee with production quotas within 30 days of June 19, 2023, or upon hire.

North Dakota

Medical Marijuana Amendment: Effective April 11, 2023, North Dakota’s medical marijuana law was amended to note that an employer can discipline employees for having medical marijuana in their system while they are performing work.

Texas

Ban on Hair Discrimination: Gov. Greg Abbott signed into law a CROWN Act which prohibits race-based hair discrimination. The law will take effect on September 1, 2023.

Utah

Military Leave Law Repealed: Effective May 3, 2023, Utah repealed its military leave law. Previously, the law had permitted those in the U.S. military reserves to take up to five years of leave if on active duty, inactive duty training or state active duty.

Tip Pooling: Effective May 3, 2023, the Minimum Wage Act is amended to permit non-tipped employees to partake in tip pooling.

Vaccine Passport Prohibition: Effective May 3, 2023, businesses are prohibited from requiring employees or customers to be vaccinated for any disease. Individuals are granted equal access to all business establishments without discrimination based on immunity status. Additionally, employers cannot discriminate against employees based on immunity status by refusing employment, barring employment, or discriminating in compensation or privileges. H.B. 131 repeals, amends, and enacts a number of statutes in the Utah Code.

Workplace Violence Protective Orders: Effective July 1, 2023, Utah amended its protective order statute to permit employers to petition for workplace violence protective orders against those who have threatened or committed workplace violence. To obtain an order, employers must reasonably believe threatened or actual workplace violence has occurred and prove certain other facts.

Virginia

Non-Disclosure Agreements: Effective July 1, 2023, under Va. Code Ann. § 28.2-618, the prohibition against nondisclosure agreements meant to conceal sexual assault claims will be expanded to include provisions in any non-disparagement agreement and details of sexual harassment claims.

Social Security Numbers: Effective July 1, 2023, under Va. Code Ann. § 40.1-28.7:10, employers will be prohibited from using an employee’s social security number as an employee identification number. Further, employers must not include the employee’s social security number on an ID card or badge.

Organ and Bone Marrow Donor Leave: Effective July 1, 2023, Virginia will require employers with 50 or more employees to offer unpaid leave for employees who donate organ and bone marrow. Employees that request leave are eligible if they have worked for the employer for at least 12 months and worked 1,250 in the last 12 months by time the leave begins. The leave must be up to 60 business days to serve as an organ donor and up to 30 business days as a bone marrow donor.

Washington

Payroll Deductions for Long-Term Care Benefits: Employee collection of Washington Cares Fund Premiums from employees’ pay is delayed until July 1, 2023. Employers are required to fully refund employees within 120 days of collection for any premiums collected as of January 1, 2022.

Tukwila

Scheduling Ordinance: Effective July 1, 2023, covered employers must offer work hours to current employees with the necessary skills and experience before hiring subcontractors. Employers must offer work to employees in a reasonable, transparent and nondiscriminatory manner. However, employers are not required to offer hours to employees if those hours would result in overtime pay or another premium wage.

Summer associates Kathryn Powell and Dean Farmer contributed to the preparation of this article.