State & Local Employment Law Developments: Q3 2023

At a Glance

• State and local governments continue to increase workplace regulations. This update provides an overview of recent and upcoming legislative developments to help you and your organization stay in compliance with local and state laws.

Alaska

Deducting Board and Lodging From Minimum Wage: Effective July 28, 2023, prior written notice to employees is required before employers make a deduction from an employee’s minimum wage for lodging or boarding.

California

Creditor Garnishment Withholdings: Effective September 1, 2023, there are set maximums of an employee’s disposable earnings for a workweek that is subject to garnishments. The distributions are limited in 2021 Bill Text CA S.B. 1477.

Criminal History Regulations: As of October 1, 2023, the California Fair Employment and Housing Act states employer’s consideration of criminal history when making employment decisions are amended to include broadened definitions of “applicant” and “employer.” The amendments include specific requirements for a post-offer assessment of an applicant’s disqualification from a job due to their conviction history.

Los Angeles

Freelance Worker Protections: Effective July 1, 2023, the City of Los Angeles Freelance Worker Protections Ordinance requires certain protections for freelance workers. The ordinance defines a “freelance worker”  as an “individual whose work is performed entirely by no more than one individual hired or engaged by a bona fide independent contractor to perform services for a ‘Hiring Entity’ in exchange for compensation” or “an individual or entity with no employees.” For the protections to apply, the work completed must be valued at $600 or greater. This amount can be one job or multiple jobs over the course of a year.

Colorado

Privacy Act: Beginning July 1, 2023, this Act provides Colorado residents protection of their personal data when acting in an individual setting. It imposes an obligation upon employers to protect employee personal data and allows the state attorney general, as well as district attorneys, to access company’s data protection assessments and impose penalties.

Paid and Family Medical Leave: Effective July 15, 2023, rules regarding contributions, employer coverage, antiretaliation and enforcement have been clarified.

Discrimination and Harassment: Changes to the Protecting Opportunities and Workers’ Rights Act include, but are not limited to, lowering the standard for unlawful harassment and adding marital status as a protected characteristic. This was implemented on August 7, 2023. 

Nondisclosure Agreements: Beginning on August 7, 2023, nondisclosure agreements that restrict an employee’s ability to discuss “alleged discriminatory or unfair employment practices” are void unless they meet certain conditions.

Paid Sick and Safe Leave: Effective August 7, 2023, the Healthy Families and Workplaces Act was amended to include additional qualifying reasons for paid leave, including bereavement.

Protecting Opportunities and Workers’ Rights: Effective August 7, 2023, the Protecting Opportunities and Worker’s Rights Act prohibits nondisclosure provisions if they limit a potential, current or former employee’s ability to discuss or disclose any alleged discriminatory or unfair employment practices unless certain requirements are met. There is a $5,000 penalty for each violation.

Please refer to our alert about Colorado employment laws for more information.

Connecticut

Personal Data Privacy: Beginning on July 1, 2023, the Connecticut Personal Data Privacy and Online Monitoring Act creates protection standards regarding collection of personal and sensitive data for specific businesses in Connecticut. 

Sexual Orientation Definition: Effective July 1, 2023, sexual orientation is now defined as “a person’s identity in relation to the gender(s) to which they are romantically, emotionally, or sexually attracted,” under the Fair Employment Practices Act. 

Paid Sick Leave: Effective October 1, 2023, Connecticut’s law is adjusted to add a mental health wellness day as a qualifying reason for paid sick leave and covers leave coverage for employees whose child is a victim of sexual assault or family violence under certain circumstances. This law applies to employers with at least 50 employees in the state of Connecticut.

Delaware

Paid Family and Medical Leave: Beginning on July 11, 2023, the final rules for Delaware’s Paid Family and Medical Leave law are implemented. These include:

• Calculation of employer size to determine coverage
• Definition of primarily for purposes of employee eligibility
• Leave duration requirements for certain types of leave
• Employee notice requirements
• Certification of a serious health condition
• Calculation, withholding and remittance of contributions

Most employers with 10 or more employees are required to participate in the program; employers with 10 to 24 employees are only required to participate in the Parental Leave part of the program, while employers with 25 or more employees must provide full coverage under the program.

Domestic and Sexual Violence Leave: Effective July 25, 2023, employers may request that an employee verifies the domestic violence, sexual offense or stalking with an official document from a victims services, medical, or mental health provider, by law enforcement, or by court order.

Paid Family and Medical Leave: Effective August 31, 2023, any employer who applies to use a private plan under the upcoming Paid Family and Medical Leave law may appeal a denial of the application.

Illinois

Pay Transparency Amendment: Effective January 1, 2025, the Illinois Equal Pay Act is amended to require that employers with 15 or more employees include the “pay scale and benefits” for a position that will be physically performed (at least in part) in Illinois or will be performed outside Illinois with the employee reporting to a supervisor, office or work site in Illinois. Employers must also alert current employees to promotion opportunities. The Amendment also further defines the disclosure and recordkeeping requirements.

Equal Pay Registration Requirements: Effective January 1, 2024, an amendment to the Equal Pay Act eliminates the option to provide an EEO-1 report in lieu of a list created by the employer.

Amendment to Personnel Records Review Act: Effective January 1, 2024, employers must send an employee's personnel records via email (or mail) if the employee requests delivery in that manner.

Amendment to the Day and Temporary Labor Services Act: Effective August 4, 2023, the Day and Temporary Labor Services Act is amended to require that day and temporary workers assigned to a client more than 90 calendar days (in a 12-month period) must be paid at least the same rate of pay and provided equal benefits to comparable employees. Further, day and temporary workers will have the right to refuse an assignment to a worksite that has a strike, lockout or other labor dispute, and employers are required to provide written notice of the right. The amendment also includes requirements for labor serve agencies related to safety training and worksite hazard disclosure, as well as penalties for noncompliance. 

Amendment to Gender Violence Act: Effective July 28, 2023, the Gender Violence Act is amended to apply the definition of “employee” and “employer” from the Illinois Human Rights Act. The Act creates liability for employers in certain limited circumstances and applies to any employer with at least one employee in Illinois.

Child Extended Bereavement Act: Effective January 1, 2024, employers with at least 50 full-time employees in Illinois must provide unpaid leave of up to 12 weeks (if the employer has 250 or more employees) or six weeks (if the employer has 50-249 employees) if an employee loses a child to suicide or homicide.

Employee Blood and Organ Donation Leave: Effective January 1, 2024, employers with 51 or more employees must provide the right to take up to 10 days of paid leave in any 12-month period to serve as an organ donor.

Amendment to Victims’ Economic Security and Safety Act: Effective January 1, 2024, the Act extends the right to take unpaid leave for certain reasons relating to a family or household member who is killed in a crime of violence.

Freelance Worker Protection Act: Effective January 1, 2024, the Freelance Worker Protection Act requires that contracting entities have a written agreement with certain minimum requirements with freelance workers, provide a copy of the agreement to the freelance worker, and maintain a copy for at least two years. In addition, a freelance worker must be paid the contracted compensation on or before the date that compensation is due under the contract (or if not specified, within 30 days after completion of the freelance worker's services under the contract).

Evanston

Workweek Ordinance: Beginning on September 1, 2023, covered employers must provide employees the following:

• Right to decline schedule changes
• Compensation alternatives to previously scheduled shifts
• Initial work schedule approximation
• Offer additional hours to existing employees
• Right to decline hours that occur within 11 hours of their last shift
• Right for employees to request a modified work schedule

Iowa

Child Labor: Effective July 1, 2023, new amendments to the Child Labor Law include repealing work permit requirements; extending the stop time to 11:00 p.m. for minors under the age of 16; increasing the number of hours per day for minors under the age of 16 to six hours; and permit 14- and 15-year-old minors to perform additional work activities, such as, kitchen-cleaning, momentary work in freezers, laundering, loading and unloading light, non-power-driven hand tools onto motor vehicles, and seed-production work.

Kansas

Lawrence

Hairstyle Discrimination: Beginning on August 22, 2023, characteristics or traits such as hairstyles and textures fall under the definition of “race.” Employers are prohibited from discrimination for these characteristics or traits.

Louisiana

Genetic Testing: Employees must be provided one day of unpaid leave for genetic testing and cancer screening as of August 1, 2023.

Maryland

Noncompete Agreements: Effective October 1, 2023, employers are barred from creating a noncompete provision in an employment contract for an employee who earns equal to or less than 150% of the state minimum wage. 

Minnesota

Pregnancy and Parenting Leave: On July 1, 2023, the Pregnancy and Parenting Leave Act was amended to include employers with one or more employees; removed length-of-service and hours-worked requirements for employee eligibility; added businesses and trusts to the definition of employer; and specifies that employers may not discriminate against employees for requesting or using leave.

Pregnancy and Lactation: Effective July 1, 2023, the amended law applies to any employer with at least one employee. There is no longer a limitation on lactation breaks to 12 months after the birth of the child. Disruption of operations is no longer a reason to deny a lactation break.

Employee Eligibility for School Activities: Beginning July 1, 2023, the state expanded the definition of an eligible employee by eliminating the length of service requirement. 

Noncompete: Effective July 1, 2023, any covenant not to compete is void and unenforceable.

Captive Audience Meetings: Effective August 1, 2023, employers are prohibited from penalizing or threatening penalties for employees refusing to attend a captive audience meeting. This includes employer-sponsored meetings and employer communications that “have the primary purpose of conveying the employer’s opinions concerning religious or political matters.”

Hairstyle Discrimination: Effective August 1, 2023, the definition of “race” is revised to encompass specific traits associated with race. These include hair texture and styles, such as, braids, locs and twists.

Gender Identity Discrimination: Beginning on August 1, 2023, the Human Rights Act is amended to forbid discrimination on the basis of gender identity. Gender identity means “a person’s inherent sense of being a man, woman, both, or neither.”

Recreational Marijuana: On August 1, 2023, the use of recreational marijuana is legalized in the state of Minnesota for individuals 21 years of age and older. There is no requirement for employers to permit or accommodate employee use, possession or distribution of marijuana products while at the workplace. However, a job applicant cannot be refused by an employer and an employer may not discipline or discharge an employee for use of cannabis, unless the position is for a designated safety-sensitive position.

Warehouse Worker Protections: Effective August 1, 2023, employers with 250 or more employees at one warehouse distribution center or a total of 1,000 employees at warehouse distribution centers in the state must follow the new worker safety requirements under Minn. Stat. § 182.6526.

Workers’ Compensation: Beginning on August 1, 2023, the workers’ compensation rules are amended regarding medical examinations and there is the discontinuation of dependent benefits.

Please refer to our alert about Minnesota employment laws for more information.

Montana

Free Speech as Basis for Wrongful Discharge: Beginning on October 1, 2023, one reason a termination is held wrongful is if the discharge was based solely on the employee’s expression of free speech, including statements made on social media.

Genetic Information Privacy: Effective October 1, 2023, a covered employer must do the following:

• Provide clear and complete information regarding the entity’s policies and procedures for the collection, use or disclosure of genetic data by making it available to the consumer
• Obtain initial express consent from the consumer, parent/guardian or power of attorney for the collection, use or disclosure of the consumer’s genetic data
• Comply with the provisions of Montana Code 44-6-104 and require a valid legal process for disclosing genetic data to law enforcement or any other governmental agency without the individual’s consent
• Maintain a comprehensive security program to protect an individual’s genetic data

Independent Contractor Classification: Montana’s Workers’ Compensation Act is revised to establish the rebuttable presumption of factors when a person without an independent contractor exemption certificate is still an independent contractor, as of October 1, 2023. These factors are listed in 2023 Bill Text MT S.B. 22. 

Definition of Sex: Under Montana nondiscrimination law, the definition of “sex” now includes the structure of body parts and gametes for reproduction, as of October 1, 2023. This amended definition does not include a person’s chosen, behavioral, social, psychological or subjective choice of gender.

New Jersey

Concealed Carry Amendment: Beginning July 1, 2023, individuals can carry a concealed handgun in a public place if they have a permit to carry and proof of liability insurance. This law states the requirements for “safe carry” for permit-holders to carry a handgun.

New York

Amended NY WARN Regulations: Effective June 21, 2023, the New York State Department of Labor amended its New York Worker Adjustment and Retraining Notification (NY WARN) Act regulations.

Human Trafficking Training: Effective July 20, 2023, employees of lodging facilities (hotels, inns, motels, etc.) who are likely to interact with guests are required to undergo human trafficking recognition training approved of by the state. Current employees must receive this training by November 20, 2023.

Gender Identity and Expression: On August 23, 2023, “gender identity or expression” was added as a protected class under the New York State Human Rights Law regarding discrimination against interns.

Captive Audience Meetings: Effective September 6, 2023, employers are prohibited from disciplining employees who decline to attend an employer sponsored meeting whose primary purpose is “to communicate the employer’s opinion concerning religious or political matters.” “Political matters” is defined to include decisions regarding labor organizations. 

Employee Assignment of Inventions: Beginning on September 15, 2023, the assignment of inventions by employees to their employers is limited. Specifically, provisions allowing employers to be assigned certain inventions which were developed through the employee’s own property and time are prohibited.

Pay Transparency Law: As of September 17, 2023, employers with at least four employees must include a pay range and job description in any advertisement for a job, promotion or transfer if the job will be physically performed partly in New York or the employee will report to a supervisor in a New York office.

New York City

Automated Tools in Hiring Limitations: Effective July 5, 2023, employers or employment agencies located in New York City may not make employment decisions regarding candidates or employees if an automated employment decision tool was used in the decision. The only time use of such tool is permitted is if the tool was tested for bias within the past year and, prior to the use of the tool. the most recent bias audit listed the results on the employer or employment agency’s website. Violations may have civil penalties and fines up to $1,500.

North Dakota

Human Rights Act: Beginning on August 1, 2023, the Human Rights Act now defines “pregnant” to include pregnancy, childbirth and related medical conditions.

Oregon

Abortion Protections: Effective July 13, 2023, Oregon has a public policy against a state allowing a person to bring civil or criminal action against a person knowingly aiding or abetting the use of reproductive health care.

Paid Family and Medical Leave: Effective August 1, 2023, Oregon clarifies rules regarding contributions, benefits, documentation and notice requirements. Further, there is now a new definition of intermittent leave.

Paid Sick Leave: Beginning on September 3, 2023, the “family member” definition under the Family Leave Act applies to the paid sick leave law. The wage replacement options and contribution limit are clarified with the amendment.

Family Leave Act: As of September 3, 2023, the Family Leave Act is amended to define a “family member” as “the spouse of an employee, the biological, adoptive or foster parent or child of the employee, the grandparent or grandchild of the employee, a parent-in-law of the employee or a person with whom the employee was or is in a relationship of in loco parentis.” The amendment also includes requirements regarding the interaction of the Family Leave Act with other family and medical leave laws.

Leave Law Commission: Implemented on September 24, 2023, employers must provide unpaid leave to an employee serving as an appointed member of a state commission or board.

Pennsylvania

Discrimination Definitions: Effective August 16, 2023, “religious creed” is redefined, which creates an employer’s duty to provide a reasonable accommodation unless the employer establishes an undue hardship. Additionally, “sex” is redefined to include gender (including gender identity or expression), sex at birth, pregnancy, intersex characteristics and sexual orientation. Ethnic characteristics now fall under the definition of “race.”

Texas

Hairstyle Discrimination: The definition of racial discrimination under the Texas Commission on Human Rights is modified to include discrimination based on hairstyles or hair textures commonly associated with race, as of September 1, 2023.

Workplace Violence: Effective September 1, 2023, Texas requires specific health care facilities to create violence prevention in the workplace committees and respond to incidents in specific ways.

Washington

Outdoor Heat Exposure: Beginning July 17, 2023, amendments to Washington’s outdoor heat exposure rules include the requirements for rest, shade, training requirements revisions, and that employers lower the temperatures at which preventative actions must occur. These requirements are now permanent, not seasonal.

Child Support: On July 23, 2023, lump-sum payments for child support must be reported by employers.

Military Spouse and Contract Termination: Effective July 23, 2023, without penalty, an employment contract may be terminated by the spouse of a military service member if the service member receives orders to a permanent change of duty. There must be written proof of the termination and orders.

Repeals Subminimum Wage for Workers with Disabilities: Effective July 30, 2023, the State Department may not issue new certificates for workers with disabilities at a subminimum wage.

Legal clerk Samantha Barnfather contributed to the preparation of this article.