Question of the Month

October 2017

Question
In your area, what current local initiatives are impacting labor & employment law?
Answer from Alabama

None in 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 California

Cities throughout California are adopting ordinances governing paid sick leave, minimum wage, and employee scheduling – to name a few.

For more information please contact Michael Foster at mfoster@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 Hawaii

Local legislation may not be determined until as late as this summer (following the end of the legislative session and the Governor’s deadline to sign or veto legislation).  Employment-related legislation that continues to progress at this time includes measures requiring employers to provide paid sick leave and increasing the minimum wage.

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 Kentucky

The enactment of a Right-to-Work law and the subsequent litigation over those statutes has been at the forefront of labor and employment law issues in Kentucky this year.

Currently, there are no state laws protecting employees on the basis of their sexual orientation. But eight Kentucky cities now have such protections: Louisville, Lexington, Covington, Danville, Frankfort, Morehead, Vicco and Midway.

For more information please contact Jacob Crouse at jwc@smithandsmithattorneys.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

Ban the box, paid sick leave and increased minimum wage.

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

Recently, the Massachusetts House voted in favor of the Pregnant Workers Fairness Act.  It is now headed for the Senate.  If it’s passed, employers that are not already doing so would have to make workplace accommodations for pregnant employees, including more frequent or longer breaks, modified work schedules, and/or temporary transfers to less strenuous positions.

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 Michigan

1. Michigan’s minimum wage ($8.90) law is currently higher than the federal minimum wage ($7.25).

2. Michigan has become a right to work state, and although unions are not publicizing statistics, some sources suggest that large numbers have opted out of membership, but continue to enjoy “free rider” benefits.

*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

Both the City of Minneapolis and City of St. Paul have recently adopted ordinances mandating the payment of sick leave to employees who work within the City limits.  Workers in both Cities accrue one hour of sick and safe time for every 30 hours worked.   Workers accrue up to 48 hours per year and the unusued portion can carry over to the following year, but after that, the accrual balance cannot exceed 80 hours.  Other Minnesota municipalities are also reviewing the adoption of similar ordinances.  Additionally, the City of Minneapolis recently adopted a minimum wage ordinance, mandating employers pay at least $15.00 per hour as of July 1, 2024.

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 Missouri

Right to work passed by legislature and signed by Governor, making Missouri the 28th right to work state. Also, legislature has passed, but Governor has not yet signed, revisions to Missouri Human Rights Act, changing standard to motivating factor, eliminating individual liability, placing caps on the recovery of damages, changing the standard for workers’ compensation retaliation to motivating factor, and codifying the existing common law claim for public policy discharge into the statute and applying the same motivating standard.

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 Nevada

Nevada continues to flesh out the application of its medical marijuana law, and several new bills have been proposed in this area.  Moreover, recreational use of marijuana for adults at least 21 years of age became legal in Nevada on January 1, 2017.  In March 2017, Governor Brian Sandoval announced appointments to the Governor’s Task Force on the Implementation of Question 2, the Regulation and Taxation of Marijuana Act.  He has asked “stakeholders, law enforcement officials, top regulators, and legislators to work together to ensure Nevada fulfills the requirements of the measure without compromising the state’s commitment to public safety.”  Developments in this area will be important to employers.

Nevada’s courts and the Labor Commissioner continue to clarify provisions of the state’s Minimum Wage Amendment.  The Nevada Supreme Court has issued several opinions on this relatively new law and additional cases remain pending in the lower courts regarding proper application and interpretation of the law.

Several bills have been proposed in the Nevada Legislature that affect labor and employment law, including a bill to require certain employers to make accommodations for nursing mothers, a bill that changes how and when public employers may consider an applicant’s criminal history, a bill that changes certain aspects of collective bargaining for public employers, a bill that seeks to restrict an employer’s ability to enter into noncompete agreements with employees, and a bill requiring private employers to offer paid sick leave. 

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 New York

New York is seeing proposed and pending legislation mirroring national movements. The New York Attorney General announced that he intends to introduce a bill to “curb widespread misuse of non-compete agreements.” The proposed bill would prohibit the use of non-competes for low-wage workers, prohibit non-compete agreements that are  broader than needed to protect the employer’s trade secrets or confidential information, require non-compete agreements to be provided before a job offer is extended, require employers to pay employees additional consideration for a non-compete agreement, limit the permissible duration for non-competes, and create a private right of action with remedies for violations. In addition, pending legislation in New York City would prohibit employers from inquiring about or relying on employee’s past salary history.

For more information please contact Amanda Baker at abaker@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

NC Bill HB2 was introduced to overturn a local Charlotte ordinance that permitted transgender individuals the right to use the public bathroom corresponding to their identity.  In addition, HB2 eliminated the right of employees to bring suit under the state Equal Employment Practices Act (EEPA) statute in state court.  That provision does not identify sexual orientation, sexual identity or other similar categories as protected classifications, but it added “biological sex” as a protected classification.   HB2 was later amended to restore the right of employees to bring wrongful discharge claims in state court for violation of EEPA, but reduced the statute of limitations from 3 years to 1 year.

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 Oregon

In the State of Oregon there are numerous local initiatives that impact labor and employment law, including but not limited to the following.

Portland Ban the Box Ordinance: In general, unless an exception applies, an employer violates Portland’s Ban the Box Ordinance if the employer “gathers, obtains, or uses an Applicant’s Criminal History before making a Conditional Offer of Employment.”  If an offer is subject to general a criminal history check, that condition must be expressly communicated to the applicant.  See Portland Ban the Box Ordinance Goes Into Effect July 1, 2016 (link).  There is also an Oregon Ban the Box law, which generally prohibits criminal history inquiries prior to the initial interview.  See Key Employment Bills Passed During Oregon's 2015 Legislative Session (link).

Portland Pay Ratio Surtax: In December 2016 Portland enacted a Pay Ratio Surtax ordinance.  This is a first-of-its-kind measure that attempts to address income disparity by creating a new pay ratio surtax for publicly traded companies subject to U.S. Securities and Exchange Commission (SEC) disclosure and reporting requirements that do business in Portland.  It applies to companies that report a ratio of compensation of its chief executive officer to its median worker of 100:1 or higher under the SEC’s Pay Ratio Disclosure Rule.  This is in addition to the 2.2 percent tax already imposed by the City of Portland Business License Law.  See Portland Pay Ratio Surtax Attempts to Address Income Disparities (link).  The rules are not yet in place, but it is estimated the ordinance may impact more than 500 companies doing business in Portland.  See *Proposed* Business Tax Administrative Rule 500.17-1 (link).

Portland Protected (Paid) Sick Time Ordinance: Portland’s paid sick leave ordinance applies to employers of 6 or more employees.  Under the ordinance, all employees (part-time, full time, exempt) are eligible to accrue paid sick leave  ( rate:1 hr:30 hours worked) as soon as they are hired.  Accrued leave may be used once an employee has worked for the employer for 90 days and has worked over 240 hours in Portland.  The rate of accrual must be at least 1 hour of paid leave for every 30 hours worked; accrual may be capped at 40 hours per year.  In lieu of accrual, an employer may frontload paid sick leave.  See Portland Employers - Get Ready for Mandatory Sick Time (link).  See also the Protected Sick Time ordinance (link).  There is also an Oregon Ban the Box law, which requires employers with 10 or more Oregon-based employees to give each worker up to 40 hours of paid sick leave per year and requires employers of fewer than 10 employees to provide unpaid sick leave.  See Key Employment Bills Passed During Oregon's 2015 Legislative Session (link).

For more information please contact Michael McClory at MMcClory@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

Bills have been introduced in the Pennsylvania General Assembly that would provide for mandatory employer paid sick leave and increase the state minimum wage.Similar bills were introduced in prior legislative sessions, and their prospects of becoming law in the current legislative session is unclear.

The movement to ban questions about applicants’ criminal histories on employment applications is gaining some momentum in Pennsylvania.Although there is no state “ban the box” law, Philadelphia has adopted a “ban the box” ordinance applicable to public and private employers, and Pittsburgh has adopted a similar ordinance applicable to public employment and city contractors.Several other Pennsylvania municipalities have adopted ordinances applicable only to public employment.

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 unusual in Texas.

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 does not currently have any significant labor & employment initiatives arising out of its many counties and cities.  Because Virginia uses the Dillon Rule, local jurisdictions in Virginias have very limited power to enact laws or regulations, generally only as specifically authorized by the state legislature, the General Assembly. 

For more information please contact Michael Lorenger at MLorenger@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

There are several, but two of particular interest are:

In November 2016, Washington state voters passed Initiative 1433 by which the minimum wage increased to $11.00 on January 1, 2017 and will increase to $11.50 in 2108, $1.002 in 2019, and $13.50 in 2020.  (The minimum wage was $9.47 and absent the initiative would have risen to $9.53.)  In addition, starting January 1, 2018, employers must provide employees with one hour of paid sick leave for every 40 hours worked.  Employers in cities with a higher minimum wage and/or more generous sick-leave law, such as Seattle, Tacoma, and SeaTac, continue to follow their local laws on minimum wage and will do the same regarding sick leave.

On July 1, 2017, Seattle’s Secure Scheduling Ordinance took effect.  The ordinance applies to retail chains and to full and fast-food restaurants when the company has 500 or more employees worldwide. This includes franchises for purposes of aggregating employees. The ordinance addresses how employees can be scheduled and mandates that employers offer existing work to current employees before hiring anyone. Some of the ordinance’s provisions include, for example: Employers must provide new hires with a written estimate of the work schedule. Employers  must engage in an interactive process with employees who express preferences for certain scheduled hours or work locations.   Employees are entitled to a certain amount of rest between shifts. Employees must receive at least 14 calendar days’ notice before the first day of a work schedule. If an employer thereafter changes an employee’s schedule by adding or removing hours, an employee must receive an extra hour of pay for additional hours and half-time pay for any reduced hours. (For example, if an employee’s schedule is reduced by two hours the employee would be paid for one hour.)  Employers also must pay employees half-time for any on-call hours during which the employees are not called into work.   

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.

Answer from Wisconsin

Recently, Governor Walker submitted Assembly Bill 64, known as the “Executive Budget Bill,” and seeks to eliminate the Labor and Industry Review Commission (LIRC).  LIRC is a panel composed of three commissions appointed by the governor which reviews administrative decisions in worker’s compensation, unemployment compensation, as well as fair labor standards cases and fair employment cases in the Equal Rights Division and public accommodation cases.  The Executive Budget Bill proposes the phase out of LIRC over the next three fiscal years.  Under Governor Walker’s proposal, Worker Compensation ALJ decisions will be reviewable by the State Department of Administration, while jobless claims and Equal Right Division decisions will be Agency administrators. In his budget statement, Governor Walker stated that the proposed elimination of LIRC will eliminate “an unnecessary layer of government” and will make this second layer of review decisions occur much more quickly. Of course, this is a proposed budget and, as such, is subject to negotiation with the legislature and subsequent amendment.

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.

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