Question of the Month

January 2017

Question
Effective 2016/17 what are some of your area's new labor and employment laws?
Answer from Ohio

Ohio has a new ban the box law for public employers only.  Effective March 23, 2016, Ohio public employers are prohibited from including “on any form for application for employment … any question concerning the criminal background of the applicant.”  R.C. 9.73.

For more information please contact Emily Gelhaus at ejg@drgfirm.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Missouri

No significant new laws were passed in the recent session.

For more information please contact Stephen Maule at maule@mcmahonberger.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Massachusetts

On January 1, 2016, the “safe harbor” to the Massachusetts Earned Sick Time Law closed.  Effective January 1, 2016, all employers were required to ensure that their policies and practices are fully compliant with all of the terms of the statute and accompanying regulations.

New in 2016, Human Service Agencies who are licensed, funded, or approved by the Department of Developmental Services or who provide transportation on behalf of any programs that are licensed, funded, or approved by DDS must fingerprint all new applicants for full-or part-time work through the Statewide Applicant Fingerprint Identification Services (“SAFIS”) Program.

Possible upcoming legislation that may affect employers include a workplace bullying bill, which would provide legal relief for employees harmed by deliberate exposure to an abusive work environment, and non-compete agreement reforms, including: (1) limiting the duration of non-competes to 1 year; (2) banning non-competes for low-wage workers, interns, employees under the age of 18, and employees terminated without cause; (3) requiring employers to provide prospective employees with notice that a non-compete is required for a position and time to seek legal counsel; and (4) requiring employers to pay 50% of a former employee’s pay when the employee is not working because of his or her non-compete.  Also in 2016, a “just scheduling” bill, which would have placed severe restrictions on the ability of employers to change employee hours, was introduced, but failed to obtain the required number of signatures to make the ballot.  It is quite probable that this bill, or a similar one, will be introduced for consideration in the 2017 legislative session.

For more information please contact Marylou Fabbo at mfabbo@skoler-abbott.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Maryland

Our equal pay act was amended to add gender identity and new pay disclosure protections for employees. Another law allows employers to grant preferences in hiring and promotion to veterans and, if the veteran is disabled or deceased, to their spouses. Another new law creates a Small Business Retirement Savings Program, in which all employers who do not have an employer-sponsored retirement plan will be required to participate.

For more information please contact Fiona Ong at fwo@shawe.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from California

As of June 2016, the state's legislature is still in session. This question will be best answered in the fall after the close of session and the Governor's deadline to sign or veto new laws. Notable employment laws enacted in 2016 relate to areas of Wage and Hour, Leave and Benefits, Discrimination/Unlawful Employment Practices, and Employee/Independent Contractor Classification.

For more information please contact Erin Winters at ewinters@fosteremploymentlaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Nevada

Independent Contractors (Senate Bill 224) – This new law, effective June 2, 2015, codifies that independent contractors are not be required to be paid minimum wage.  The law lays out a test for independent contractors as follows:

1.    They have an employer identification number or filed an income tax return for a business or self-employment; and
2.    They are required to maintain a state business license, insurance, or bonding.

Additionally, they must meet three of the following criteria:

1.    They have control over the means and manner of performance of their work and result of their work;
2.    They have some control over the time the work is performed;
3.    They are not required to work for only one principal (with exceptions);
4.    They are free to hire employees; or
5.    They have a substantial investment in the capital of the business.

In the event the test is satisfied, there is a conclusive legal presumption of independent contractor status.

For more information please contact Scott Abbott at SAbbott@kzalaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Michigan

Michigan’s minimum wage increased to $8.50 per hour (and $3.23 per hour for tipped employees) in 2016.  In 2017, the minimum wage increases to $8.90 (and $3.38 for tipped employees).

For more information please contact Bill Pilchak at wpilchak@mi-worklaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Minnesota

•    Effective August 1, 2016 Minnesota’s minimum wages increase. See http://www.dli.mn.gov/LS/minwage.asp
•    Effective July 1, 2017 the Minneapolis Sick Leave Ordinance goes into effect.

For more information please contact Doug Seaton at dseaton@seatonlaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from New York

Many new laws affecting the employment relationship have been passed in New York State in 2016.  Below is a brief summary of several significant state-wide changes:

On April 4, 2016, New York Governor Andrew Cuomo signed legislation adopting a 12-week paid family leave policy for New York employees (the “Paid Leave Law”).  Upon full implementation, the Paid Leave Law will provide New York employees with up to 12 weeks of paid family leave for the purpose of (1) caring for a new child, (2) caring for a family member with a serious health condition, or (3) relieving family pressures when a family member, including a spouse, domestic partner, child or parent, is called to active military service.

On April 4, 2016, Governor Cuomo also signed a new law that will increase the minimum wage in New York State from the current rate of $9, to $15 by the end of 2018 for many businesses in New York City, and to $15 by the end of 2021 for the New York City commuter counties of Nassau, Suffolk and Westchester. The minimum wage for the remainder of the state will reach $12.50 by the end of 2020.   New York and California are now the only  two states to have instituted a $15 minimum wage.

In late 2015, Governor Cuomo signed into law five new bills that became effective on January 19, 2016 and that are intended to increase protections for employees against gender discrimination.  The first bill amended the New York Labor Law (“NYLL”) to authorize awards of treble damages in lawsuits for unequal pay because of sex.  The remaining four bills amended the New York State Human Rights Law (“NYSHRL”) to (i) prohibit sexual harassment by small employers (i.e., employers with one to three employees); (ii) authorize awards of attorneys’ fees in lawsuits for sex discrimination in employment; (iii) prohibit discrimination in employment because of familial status; and (iv) require employers to reasonably accommodate workers who are pregnant.

For more information please contact John Keil at jkeil@cfk-law.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from North Carolina

In 2016, the North Carolina legislature eliminated the state cause of action for discrimination in employment based on race, color, sex, religion, national origin, age, and disability. Employees may pursue such claims exclusively under federal law.

For more information please contact Steve Dunn at steve.dunn@vradlaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Wisconsin

2015 WI Act 345 was enacted on April 1, 2016 and provides state-based WFMLA-type protection from discrimination and retaliation by amending the Wisconsin Fair Employment Act to an employee who is a bone marrow or organ donor.  Wis. Stat. 103.11.

2015 WI Act 203, enacted March 1, 2016, excludes a franchisor as the employer of a franchisee or of an employee of the franchisee.  Wis. Stat. 104.015. 

2015 WI Act 180, enacted February 29, 2016, provides comprehensive changes to the worker’s compensation system in Wisconsin by providing, among other things, that an insurer or self-insured employer can discontinue the payment of ongoing temporary total disability payments to an injured employee terminated for defined misconduct or substantial fault. This legislative change adopts the misconduct and substantial fault definitions set forth in the 2014 changes to Wisconsin's unemployment insurance law.

For more information please contact Laurie Petersen at LPetersen@lindner-marsack.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Alabama

Nothing new for Alabama.

For more information please contact David Middlebrooks at dmiddlebrooks@lehrmiddlebrooks.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Florida

No significant changes in Florida.

For more information please contact Wayne Helsby at WHelsby@anblaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Oregon

Minimum Wage (SB 1532) – establishes a tiered system to increase the state minimum wage over the next six years. The minimum wage depends on the employer’s location within the state and peaks in 2022 at $14.75 for employers within the Portland urban growth boundary. 

Itemize Pay Statements (SB 1587) – expands the information that must be provided on itemized pay statements. 

Protection for Disclosure of Certain Confidential Information by Public and Nonprofit Employees (HB 4067) – provides an affirmative defense for public and nonprofit employees who disclose confidential information in certain whistleblower settings.

For a list of employment and labor laws passed in 2015 that took effect January 1, 2016, see:
http://bullardlaw.com/news/alert/thats-a-wrap---key-employment-bills-passed-during-oregons-2015-legislative-session/

For more information please contact Dave Riewald at driewald@bullardlaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Hawaii

The 2016 Hawaii Legislature passed the following employment bill, but the Governor has until June 27, 2016 to notify of the Legislature of his intent to veto any of them:
•    Social media privacy, prohibiting (among other things) employers from requiring requesting or coercing an employee or potential employee to disclose login credentials for a personal social media account or access the personal social media account in the presence of the employer.  If it is not vetoed, it will take effect upon its approval.

For more information please contact Sarah Wang at SWang@marrjones.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Pennsylvania

Governor Tom Wolfe signed the Medical Marijuana Act (“Act”) into effect on April 17, 2016, legalizing medical marijuana in the Commonwealth.  The Act allows for medical marijuana to be dispensed in the following forms: a pill; oil; topical treatment; a form medically appropriate for administration by vaporization or nebulization (excluding dry leaf or plant form until such is deemed acceptable under state regulations); tincture; or liquid. The bill specifically provides that it is unlawful to smoke marijuana, and to incorporate marijuana into an edible form in a manner other than those identified in the Bill.

Section 2103 of the Act does contain a significant anti-discrimination provision:  “No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.”  However, Section 2103 also contains provisions that indicate that an employer is not required to accommodate the use of medical marijuana in the workplace:
 

•    “Nothing in this act shall require an employer to make any accommodation of the use of medical marijuana on the property or premises of any place of employment.  This Act shall in no way limit an employer’s ability to discipline an employee for being under the influence of medical marijuana in the workplace or for working while under the influence of medical marijuana when the employee’s conduct falls below the standard of care normally accepted for that position.”

•    “Nothing in this Act shall require an employer to commit any act that would put the employer or any person acting on its behalf in violation of federal law.”


The Act also contains a number of employment-related restrictions that apply to individuals working in safety-sensitive positions.  Section 510 of the Act sets forth the following prohibitions:

 

 

•    With a blood content of more than 10 nanograms of active tetrahydrocannabis per millimeter of blood in serum, a patient may not operate or be in physical control of (1) chemicals which require a permit issued by federal or state government (or federal or state administrative agency, or (2) high voltage electricity or any other public utility.

•    A patient under the influence of medical marijuana may not perform any employment duties at heights or in confined spaces, including but not limited to mining.

•    An employer may prohibit a patient under the influence of marijuana from performing any task which the employer deems life-threatening, for either the patient or other employees.  The Bill provides that the “prohibition shall not be deemed an adverse employment decision even if the prohibition results in financial harm for the patient.”

•    An employer may prohibit a patient under the influence of marijuana from performing any duty which could result in a public health or safety risk.  The Bill provides that the “prohibition shall not be deemed an adverse employment decision even if the prohibition results in financial harm for the patient.”


The Department of Health’s implementation of the Act is expected to take between 18 and 24 months.  Once the Department of Health publishes its final regulations, employers will be in a better position to make policy decisions regarding medical marijuana use in the state.

 

 

For more information please contact John Ellis at jellis@ufberglaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Virginia

The most recent legislative session was largely quiet on labor & employment laws in Virginia.   The General Assembly passed a ballot initiative to allow voters to decide whether to amend the state constitution to include the right-to-work that is currently protected by statute.   The General Assembly also passed laws clarifying the penalties for a willful failure to pay wages due and amending its worker’s compensation statute to presume an injury in the course of employment in certain circumstances resulting in death.

For more information please contact Susan Carnell at scarnell@lorengercarnell.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Washington

In September 2016, Seattle enacted a “Secure Scheduling” ordinance that will take effect on July 1, 2017.  The law applies to retail and fast food businesses with 500+ employees worldwide and to full service restaurants with 500+ employees and 40+ full-service restaurant locations worldwide.   The key provisions of the ordinance include:  1) Upon hire, employers must provide a good faith estimate of the median hours an employee can expect to work, including on-call shifts; 2) Employees may request schedule preferences to balance their other commitments, like caring for a family member, working another job and attending school. Employers must engage in an interactive process with employees to discuss these requests, and must grant a request related to a major life event unless there is a bona fide business reason; 3) Employers must post employees' work schedules 14 days in advance; 4) If an employer adds hours to the employee's schedule after it is posted, the employer must pay the employee for one additional hour of "predictability pay"; 5) If an employee is scheduled for a shift and then sent home early, the employer must pay the employee for half of the hours not worked; and 6) employees receive half-time pay for any shift they are "on-call" and do not get called into work.  There are exceptions to predictability pay when an employee i) requests changes to a schedule or ii) finds replacement coverage through an employee-to-employee shift swap; and when an employer i) provides notice of additional hours through mass communication and an employee volunteers to cover hours and ii) conducts an in-person group conversation with employees on shift to cover new hours based on customer needs and an employee consents to take the hours.   In addition, if the gap between a closing and opening shift (known as “clopening”) is under 10 hours, the employer must pay the employee time-and-a-half for the difference.  Employers also must offer additional hours of work to qualified existing employees before hiring external employees.

For more information please contact Ken Diamond at ken@winterbauerdiamond.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

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