Question of the Month

April 2019

Question
What hot topics do you anticipate for your state/province in 2019?
Answer from Alabama

We anticipate that most of the hot topics from a political perspective will be outside of the L&E realm given that state political control rests almost exclusively with pro-business factions.  From a local but federal perspective, we have seen an increased, aggressive stance from several of the federal enforcement agencies including the EEOC and OFCCP.  However, some of this action feels as though it is lingering from the last executive branch rather than reflecting the current executive branch.

For more information please contact Michael Thompson at mthompson@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 California

Arbitration agreements remain a hot topic in the context of California employment law.  In 2014, the California Supreme Court in Iskanian v. CLS Transportation Los Angeles, LLC acknowledged that the Federal Arbitration Act (“FAA”) preempts state laws against class-action waivers in arbitration agreements, but also held that representative actions seeking civil penalties for California Labor Code violations were not subject to mandatory arbitration.  This left employers able to enforce class-action waivers, but not waivers for representative actions under the California Labor Code Private Attorneys’ General Act (“PAGA”).  In Lawson v. Z.B., N.A., the California Supreme Court will decide whether a representative action under PAGA, seeking recovery of individualized lost wages as civil penalties under Labor Code section 558, falls within the preemptive scope of the FAA. 

For more information please contact David Wimmer at dwimmer@swerdlowlaw.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

In Florida, medical marijuana and paid leave.

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 Georgia

In Georgia, the continued controversy over the rights of LGBTQ.

For more information please contact Doug Duerr at duerr@elarbeethompson.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

Anticipated hot topics in Hawaii are increasing minimum wage, legalizing recreational cannabis, providing job protection to medical marijuana cardholders, and prohibiting employers from requiring employees to enter into a non-disclosure agreement that would prevent an employee from discussing sexual harassment and/or sexual assault in the workplace.

For more information please contact Megumi Sakae at MSakae@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 Maryland

In Maryland, a bill has been introduced to increase the minimum wage to $15/hour over several years. The General Assembly is also considering an expansive paid family and medical leave insurance program, similar to what has been passed in a number of other states. In addition, legislation to ban non-compete agreements for lower-earning employees has been introduced. All of these have significant support in the Maryland General Assembly. 

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 Massachusetts

Massachusetts’ long-awaited Paid Family Medical Leave will begin making an impact in 2019.  The Act establishes a system for paid family leave of up to 12 weeks to care for a family member, and up to 20 weeks for an employee’s own illness. The tax that pays for it will begin in 2019, and leave will be available beginning in 2021.

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 Minnesota

In Minnesota,

Paid Family Leave
House Democrats made a proposal to provide paid family leave to Minnesotans. The bill, HF5, would provide paid family leave for Minnesotans who need to take time away from work for a family or medical issue.  The bill would provide for 12 weeks of medical leave with partial wage replacement and, or 12 weeks of family leave to bond with a new baby or care for a sick family member, through an insurance program that’s modeled on Minnesota’s unemployment insurance.  The leave would be funded by premiums based upon a percentage of worker compensation and be made up of contributions from both employees and employers.

Sexual Harassment
House Democrats have drafted a bill that would remove the long-standing current “severe or pervasive” legal standard for sexual harassment claims under the Minnesota Human Rights Act. HF10 (Moller - 42A, DFL).

Safe and Sick Time
Proposed legislation creates an expansive state-wide mandate on employers to offer at least one hour of paid sick leave for every 30 hours an employee works. The bill does not include small business exemptions, however there are collective bargaining agreement and construction industry carve-outs. Employers may face much greater liability, stricter record-keeping requirements, and stiff penalties for violations.  HF11 (Lesch - 66B, DFL).

Wage Theft
A proposed bill in the Minnesota House of Representatives would make wage theft illegal, including in instances without intent to defraud. It would give the Minnesota Department of Labor and Industry more enforcement tools, including subpoena powers, and an increased budget to hire additional wage and hour investigators. It would also require stricter record-keeping requirements for employers and impose stiffer penalties for violators. Finally, the bill would require employers to pay employees every 16 days. HF6 (Mahoney - 67A, DFL.

For more information please contact Tom Revnew at TRevnew@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 Nevada

Nevada voters have elected their first Democratic Governor in two decades, and its Assembly and Senate are now controlled by Democrats.  This “blue wave” has led to a call for an increase to the minimum wage, an equal pay act, paid sick leave, and the elimination of Nevada’s long-standing right to work law.  Nevada’s biennial legislature meets this year and is expected to take up these and other matters.  Nevada employers are wise to keep a close eye on legislative developments this year. 

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 North Carolina

In North Carolina, our local EEOC office had demonstrated an increased interest in focusing on race discrimination and racial harassment cases and seems to be bringing more lawsuits arising out of those charges than in years past.

For more information please contact Bryan Adams at bryan.adams@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 Ohio

In Ohio, #MeToo issues and need for training supervisors on these issues; Creation and/or Amending Arbitration Agreements to conform to Epic Systems Corp. v. Lewis; dealing with Ohio’s new Medical Marijuana law and educating supervisors on dealing with medical marijuana issues in the workplace

For more information please contact Evelyn Schonberg at lynns@rbslaw.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

Most provisions of the Oregon Equal Pay Act went into effect on January 1, 2019.  We expect this to be a hot topic for 2019, because the OEPA is both more far-reaching and rigid than the federal Equal Pay Act.  Oregon’s new law, ORS 652.210 et. seq., creates strict liability for compensation differences between virtually any employees who are performing “work of comparable character” and prescribes set reasons that an employer can use to justify differences in compensation between such employees.  Unlike under federal law, there is no ‘catch-all’ exception.  Oregon employers can take advantage of a limited safe harbor if they conduct an “equal-pay analysis.”  However, the exact format of such an analysis is not specified under the law.   Additionally, the law strictly limits employers’ ability to inquire about or consider past compensation of prospective employees.

For more information please contact Mitch Cogen at MCogen@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 Pennsylvania

In June of 2018, the Pennsylvania Department of Labor and Industry (DLI) published proposed regulations updating the duties requirements and salary threshold necessary to qualify as exempt from overtime under the Pennsylvania Minimum Wage Act (PMWA).  

Under the DLI Proposal, the exempt salary threshold in Pennsylvania would incrementally increase from the current threshold according to the following schedule:

•    Effective on the publication date of the DLI’s final regulations, the weekly salary threshold will increase to $610 ($31,720 per year).
•    One year after publication, the weekly salary threshold will increase to $766 ($39,832 per year).
•    Two years after publication, the weekly salary threshold will increase to $921 ($47,892 per year).

Three years after publication, and every three years thereafter, the salary threshold will be updated to a rate equal to the 30th percentile of weekly earnings of full-time non-hourly workers in the Northeast Census region in the second quarter of the prior year, as published by the U.S. Department of Labor, Bureau of Labor Statistics (BLS).  (Note:  The Obama Administration white-collar changes tied inflationary updates to the 40th percentile of weekly earnings of full-time non-hourly workers but, used the percentile from the BLS’ lowest census region).  When complete, these incremental salary increases would increase the exempt salary threshold to a level close to that contemplated by the Obama Administration in 2016.

The DLI proposal would also make some additional changes that are favorable to employers, such as removing the long and short tests for exempt status that exist under the current regulations.

After reviewing public comments on the regulations, the Pennsylvania Independent Regulatory Review Commission published its comments on the proposed changes in late September.  The IRRC stated it was unable to determine whether the regulations were in the public interest, and posed several questions to the Department of Labor and Industry.  The DLI has yet to formally respond to the IRRC comments, but further regulatory action on this front is likely in 2019.

Pennsylvania employers also continue to wrestle with issues related to medical marijuana in the workplace.  Pennsylvania legalized medical marijuana in the Spring of 2016, and courts and regulatory agencies have yet to clarify many of the ambiguities in the law.  We expect further action on this front in 2019.

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 Texas

Nothing in Texas. There is some talk and effort to limit cities’ ability to impact the employment relationship, but those are just efforts and we are unsure what will come of them.

For more information please contact John Freeman at jfreeman@keyharrington.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

Virginia is a conservative, employer-friendly state with a reputation for being “open for business.”  With its part-time legislature having concluded its business for 2019 already, there are not likely to be any further state-wide legislative initiatives in 2019.   The 2019 session saw very little activity relating to labor and employment, which is fairly typical in the Commonwealth. 

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 Washington, paid leave is a hot topic because the Washington Paid Family Leave Act took effect on January 1.   In 2019, premiums are simply being paid into the state fund, but starting January 1, 2020, employees will be eligible to receive benefits when taking certain types of leave.   Employers will need to understand the logistics and implications of this in managing their leave programs.   Washington is one of only a handful of states that now has a paid leave program like this.   Meanwhile, the Washington Department of Labor & Industries is considering several changes, including, for example, increasing the minimum salary requirement for exempt status and revising the duties test relating to white collar overtime exemptions.  On the legislative front, several new laws are being considered that may or may not be enacted.  One such law would extend the Seattle “secure scheduling” ordinance concept to the rest of the state.   Among other things, this would require certain businesses (e.g., retail, fast food) to post schedules two weeks in advance and pay employees extra when schedules are then changed.  Another law being considered would place certain restrictions on non-compete agreements, including, for example, limiting such agreements to employees paid at least three times the annual state average and requiring new employees be notified of the non-compete terms at least two weeks before the job starts.

For more information please contact Ken Diamon 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.

Answer from Wisconsin

Wisconsin’s new governor is looking to legalize marijuana and decriminalize some offenses.

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.

Tweets Follow

Apr 17

Be VERY CLEAR In Your Communications About FMLA: https://t.co/TrAV4M3zHo

Apr 17

Issues to Consider Before Implementing a “Rooney Rule” to Increase Racial Diversity in Employment: https://t.co/fUx1GTNL5c

Apr 11

Europe: Guide to Employment Issues in M&A Transactions: https://t.co/2qeJ6AxsKi