State & Local Employment Law Developments: Q1 2019

State and local governments are increasingly regulating the workplace. 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 ensure that your organization stays in compliance.

California

Military and Veterans Discrimination: Effective January 1, 2019, coverage has been expanded to additional service members pursuant to amendments to the antidiscrimination provisions of the California Military and Veterans Code.

Employers are prohibited from:

• Terminating an employee based on membership in the federal reserve components of the U.S. Armed Forces (previously only applied to members of military or naval forces of California).
• Dissuading, preventing or stopping an employee from enlisting or accepting a warrant or commission in the State Military Reserve or federal reserve components of the U.S. Armed Forces by threat or injury to him or her in respect of the terms, conditions or privileges of employment because of enlistment or acceptance of a warrant or commission (previously only applied to the California National Guard or Naval Militia).
• Restricting or terminating any collateral benefit for employees based on an employee’s temporary incapacitation related to duty in the State Military Reserve or the federal reserve components of the U.S. Armed Forces (previously only applied to the National Guard or Naval Militia).

Military and Veterans Discrimination: Effective January 1, 2019, coverage has been expanded to additional service members pursuant to amendments to the antidiscrimination provisions of the California Military and Veterans Code.

Alameda Minimum Wage: Effective July 1, 2019, the minimum wage will increase to $13.50 per hour for employees who work at least two hours per week within the city.

Berkeley Minimum Wage: Effective July 1, 2019, the minimum wage will increase from $15.00 per hour to an adjusted amount based on inflation (not yet announced).

Daly City Minimum Wage: Effective February 13, 2019, the minimum wage increased to $12.00 per hour for employees who work at least two hours per week within the city.

Emeryville Minimum Wage: Effective July 1, 2019, the minimum wage will increase to an estimate of $16.00 per hour (adjusted based on inflation).

Fremont Minimum Wage: Effective July 1, 2019, the minimum wage will increase to $13.50 per hour for employers with 26 or more employees (exceptions for some nonprofit employees and employees on call).

Malibu Minimum Wage: Effective July 1, 2019, the minimum wage will increase from $12.00 to $13.25 per hour for employers with 25 or less employees and from $13.25 to $14.25 per hour for employers with 26 or more employees (determined by the average number of employees employed during the previous calendar year).

Milpitas Minimum Wage: Effective July 1, 2019, the minimum wage will increase from $13.50 to $15.00 per hour for employees who work at least two hours per week within the city.

Pasadena Minimum Wage: Effective July 1, 2019, the minimum wage will increase from $12.00 to $13.25 per hour for employers with 25 or less employees and from $13.25 to $14.25 per hour for employers with 26 or more employees (determined by the average number of people employed by the employer throughout the United States during the previous calendar year).

San Francisco Minimum Wage: Effective July 1, 2019, the minimum wage will increase from $15.00 to $15.59 per hour.

San Leandro Minimum Wage:Effective July 1, 2019, the minimum wage will increase from $13.00 to $14.00 per hour for employees who work at least two hours per week within the city.

Santa Monica Minimum Wage: Effective July 1, 2019, the minimum wage will increase from $12.00 to $13.25 per hour for employers with 25 or less employees and from $13.25 to $14.25 per hour for employers with 26 or more employees (determined by the average number of employees employed per quarter during the previous calendar year).

Delaware

WARN: Effective January 7, 2019, the Delaware Worker Adjustment and Retraining Notification (WARN) Act requires 60 days advance notice to affected employees and government officials of a mass layoff, plant closing or relocation. Key differences from the federal WARN Act include:

• Applies to employers with 100 or more full-time employees or 100 or more employees (including part-time) who work at least a combined 2,000 hours per week (compared to federal WARN Act that applies to 100 or more full-time employees or 100 or more employees who work at least a combined 4,000 hours per week (exclusive of overtime)).
• Requirement that employers give advance notice of a “relocation” (“relocation” doesn’t trigger notice requirements under federal WARN Act).
• Notice is also required to the Delaware Workforce Development Board for the locality in which the mass layoff, plant closing or relocation will occur, and the notice must include general information regarding any payouts, severance packages, job relocation opportunities, retirement options, and whether the employer is self-insured for workers’ compensation insurance.

District of Columbia

Minimum Wage: Effective July 1, 2019, the minimum wage will increase from $13.25 to $14.00 per hour.

Paid Leave Benefits Contribution Payments: Effective July 1, 2019, employers that are required to make unemployment insurance contributions are also required to make contributions to fund Universal Paid Leave Amendment Act benefits. Employees may access these benefits beginning July 1, 2020.

Domestic Violence: Effective February 8, 2019, an amendment to the District of Columbia Human Rights Act prohibits an employer from discriminating against a victim of domestic violence, sexual assault and stalking. The amendment also requires an employer to provide a reasonable accommodation to an employee who is the victim, or family member of a victim, of domestic violence, a sexual offense or stalking when an accommodation is necessary to ensure the person’s safety and security (unless the accommodation would cause undue hardship for the employer).

Sexual Harassment: Effective July 1, 2019, employers of tipped employees must file a policy detailing sexual harassment reporting procedures with the Office of Human Rights (OHR); distribute and post the policy; and report to the OHR the number of instances of sexual harassment reported to management and a breakdown of the total number of reported harassers who were non-managerial employees, managerial employees, owners or operators.

Florida

Medical Marijuana: Effective March 18, 2019, SB 182 amended the medical marijuana law to allow smoking of medical marijuana by a qualified registered patient (previously illegal to consume medical marijuana by smoking). Nonetheless, the smoking of medical marijuana is prohibited in public and in enclosed workplaces with one or more employees.

Illinois

Cook County Minimum Wage: Effective July 1, 2019, the minimum wage will increase from $11.00 to $12.00 per hour.

Chicago Minimum Wage: Effective July 1, 2019, the minimum wage will increase from $12.00 to $13.00 per hour.

Equal Pay Protections: Effective January 1, 2019, an amendment to the Illinois Equal Pay Act of 2003 expands equal pay protections for African Americans. The amendments provide that an employer may not discriminate between employees by paying wages to an African American employee at a rate less than the rate at which the employer pays wages to another employee who is not African American for the same or substantially similar work that requires equal skill, effort and responsibility and is performed under similar working conditions, except when the payment is made under one of the following:

• Seniority system.
• Merit system.
• System that measures earnings by quantity or quality of production.
• Differential based on any other factor other than race, or a factor that would constitute unlawful discrimination under the Illinois Human Rights Act.

Louisiana

New Orleans Criminal Background Checks for Contractors: Effective March 1, 2019, New Orleans city contractors must comply with New Orleans’ “ban the box” law that previously only applied to public employers. Under the law, city contractors are prohibited from inquiring about an applicant’s criminal history on initial job applications and must conduct interviews prior to requesting a criminal background check.

Maine

Portland Minimum Wage: Effective July 1, 2019, the minimum wage will increase from $10.90 to $11.11 per hour.

Maryland

Montgomery County Minimum Wage: Effective July 1, 2019, the minimum wage will increase from $12.25 to $13.00 per hour for employers with 51 or more employees, $12.00 to $12.50 per hour for employers with between 11 and 50 employees, and $12.00 to $12.50 per hour for employers with 10 or less employees.

Baltimore Lactation Accommodation: Effective March 13, 2019, employers with at least two full-time employees working in Baltimore are required to:

• Provide a reasonable amount of break time for employees wishing to express breastmilk (to run concurrently with any paid rest time if possible; otherwise, time is unpaid).
• Provide a lactation location, other than a bathroom or closet that is in close proximity to the employee’s work area.
• Distribute a written lactation policy to employees upon hire, upon policy modifications or to employees who inquire about pregnancy or parental leave.

Massachusetts

Paid Family and Medical Leave Contribution Payments: Effective July 1, 2019, employers may collect premiums for Paid Family and Medical Leave from their employees and must provide these payments to the state on a quarterly basis. The first payment has been delayed from April 30, 2019, to July 31, 2019.

Michigan

Minimum Wage: Effective March 29, 2019 (changed from January 1, 2019), the minimum wage increased from $9.25 to $9.45 per hour.

Paid Sick Leave: The Paid Medical Leave Act became effective March 29, 2019. Employers with 50 or more employees must allow eligible employees to accrue one hour of paid sick time for every 35 hours worked. Employers may cap paid sick time accrual at 40 hours per year. Employees may carry over up to 40 hours of unused sick time to the following year; however, this is not required if employers provide 40 hours of paid sick time at the beginning of the year.

LGBT Protections in State Contracts: On January 7, 2019, Governor Whitmer signed Executive Directive 2019-09 including protections against discrimination based on gender identity or expression and sexual orientation. State contracts administered by a board, department, agency or commission within the executive branch of Michigan must include non-discrimination language for these categories for contractors or subcontractors in regards to their applicants or employees.

Minnesota

Minneapolis Minimum Wage: Effective July 1, 2019, the minimum wage will increase from $11.25 to $12.25 per hour for employers with 101 or more employees and from $10.25 to $11.00 per hour for employers with 100 or fewer employees.

New Hampshire

Subcutaneous Device Implants: Effective January 1, 2019, HB 1372 prohibits requiring, coercing or compelling an individual to receive a subcutaneous implantation or other internal or external bodily possession of an identification device. This does not include an object storing personal information that is temporarily attached to the skin by an adhesive strip or bracelet.

New Jersey

Minimum Wage: Effective July 1, 2019, the minimum wage will increase from $8.85 to $10.00 per hour for large employers (generally all except employers with fewer than six employees or seasonal employers).

Family Leave Act: Effective February 19, 2019, the New Jersey Family Leave Act (NJFLA) has been modified as follows:

• Expands the definition of parent and child to include foster parents, foster children, parents who become a parent according to a valid written agreement with a gestational carrier, and children who become a child of a parent according to a valid written agreement between the parent and a gestational carrier.
• Expands the definition of a covered family member to include siblings, parents-in-law, grandparents, grandchildren, any other blood relatives and any individuals with a close association to the employee equivalent to a family relationship.
• Permits intermittent leave for a foster child placement.
• Requires employees to provide advance notice within 15 days (previously 30 days) of leave taken for a foreseeable reason, or for intermittent leave to care for a sick family member.
• Permits employees to take reduced schedule leave during a 12-consecutive-month period (previously 24 consecutive weeks).
• Eliminates the requirement that a child must be under the age of 18 or incapable of self-care because of a physical or mental impairment.
• Eliminates the requirement that reduced schedule leave for birth, adoption or foster care must be based on an agreement between the employee and employer.
• Eliminates the requirement that reduced schedule leave will not result in a reduction of the total amount of leave to which the employee is entitled.

Effective June 30, 2019, the NJFLA will apply to employers with 30 or more employees will (previously applied to employers with 50 or more employees).

Paid Family Leave: Effective July 1, 2019, the one-week waiting period for employees to receive paid family leave benefits will be eliminated. However, the waiting period for collecting temporary disability benefits remains.

Effective July 1, 2020, employees will be entitled to up to 12 weeks of paid family leave (currently six weeks), and intermittent paid family leave will increase from 42 days to 56 days. The weekly benefit will also increase to 85% of an employee’s average weekly wage (with a benefit cap of $859).

Domestic Violence Leave: Effective February 19, 2019, under NJ Safe Act amendments, the definition of a covered family member has been expanded (same as NJFLA), and employees have the right to choose to use accrued paid vacation, personal, medical, sick leave or paid family leave (but may not be required to do so). Employers with 25 or more employees are required to provide up to 20 days of unpaid leave to an employee who is a victim of domestic violence or sexual assault, or whose covered family member is a victim.

Nondisclosure of Discrimination Claims: Effective March 18, 2019, pursuant to amendments to the New Jersey Law Against Discrimination, the following contract provisions are prohibited:

• Waiver in employment contracts of any substantive or procedural right or remedy relating to a claim of discrimination, retaliation or harassment.
• Nondisclosure clauses in employment contracts or settlement agreements that have the purpose or effect of concealing the details relating to a claim of discrimination, retaliation or harassment against a current or former employee who is a party to the contract or settlement.

In addition, notice requirements must be included in settlement agreements resolving a discrimination, retaliation or harassment claim by an employee against an employer.

Equal Pay Reporting for State Contractors: On the heels of the first annual report deadline of March 31, 2019, the New Jersey Department of Labor revised the reporting requirements for the state equal pay law for employers that provide qualifying services or public works (e.g., construction, repairs, demolition) to New Jersey and its agencies. Under these revisions, employers are no longer required to include individual employees by name, compensation band, exempt status and demographics in their report. In addition, employers only need to report on “those individuals employed in New Jersey in connection with a contract with a public body to perform any public work for the public body.”

New Mexico

Santa Fe County Minimum Wage: Effective March 1, 2019, the minimum wage increased from $11.40 to $11.80 per hour.

Gender-Free Restrooms: Effective July 1, 2019, HB 388 requires existing single-user restrooms, or those constructed on or after July 1, 2019 in a public setting to be made available to all individuals regardless of gender identity or sex; designated for use by not more than one occupant at a time or for family or assisted use; and identified with gender-neutral signage.

Workplace Protection for Nurses: Effective March 14, 2019, the Safe Harbor for Nurses Act protects registered and licensed nurses in health care facilities from any adverse employment actions if they refuse an assignment on the belief that it compromises patient health or violates their legal duties under the Nursing Practice Act.

New York

Gender Identity and Expression Discrimination: Effective March 9, 2019, the New York Gender Expression Non-Discrimination Act prohibits an employer from discrimination against an applicant or employee based on gender identity or expression, which is defined as “a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.” This act amends the New York State Human Rights Law, which generally stated that discrimination against transgender individuals is unlawful.

Paid Family Leave:

• Increase: Effective January 1, 2019, employees became eligible to receive 10 weeks of paid family leave at 55% of their average weekly wage (up from eight weeks at 50%).
• Expansion: Effective February 3, 2019, the definition of a serious health condition under the New York paid family leave law includes “transplantation preparation and recovery from surgery related to organ or tissue donation.”

State Contract Bidding Compliance: Effective January 1, 2019, New York state contract bids must include affirmation of implementing of a written policy regarding sexual harassment prevention and providing annual sexual harassment prevention training.

New York City Sexual and Reproductive Health Decisions Discrimination: Effective May 20, 2019, employers are prohibited from discriminating against applicants or employees based on sexual and reproductive health decisions. This includes fertility-related procedures; sexually transmitted disease prevention, testing and treatment; and family planning services.

New York City Hair Discrimination: In the NYC Commission on Human Rights’ legal enforcement guidance on race discrimination on the basis of hair issued in February 2019, employer grooming or appearance policies that ban, limit or otherwise restrict natural hair or hairstyles may violate the NYC Human Rights Law (NYCHRL) and may subject an employer to disparate treatment claims. The guidance focuses on policies concerning natural hair or hairstyles “most commonly associated with Black people,” but also indicates that the protections extend more broadly to other races as well as other categories such as religion and gender. Protections under the NYCHRL include the right to maintain “natural hair, treated or untreated hairstyles such as locs, cornrows, twists, braids, Bantu knots, fades, Afros, and/or the right to keep hair in an uncut or untrimmed state.”

Examples of potential violations include:

• Banning twists, locs, braids, cornrows, Afro, Bantu knots, or fades.
• Mandating employees to change the state of their hair to conform to employer expectations.
• Prohibiting, limiting, or restricting natural hair or hairstyles to promote a corporate image because of customer preference or under the guise of speculative health or safety concerns.
• Banning hair that extends a certain number of inches from the scalp, thereby limiting Afros.
• Requiring black employees to obtain supervisory approval prior to changing hairstyles, but not imposing the same requirement on others.

For legitimate health or safety concerns, an employer must consider alternative ways to address hair related concerns such as the use of hair ties, hair nets, head coverings or alternative safety equipment.

New York City Lactation Policy: Pursuant to the March 18, 2019 law that requires employers with at least four employees to provide lactation rooms for employees and distribute written lactation policies to employees upon hire, the New York City Commission on Human Rights has released model policies on their website. While employers are not required to adopt one of these model policies, they contain a significant amount of statutory language that may be useful in crafting a policy.

Suffolk County Salary History Inquiries: Effective June 30, 2019, employers will be prohibited from inquiring about an applicant’s pay history and relying on such history when deciding applicant’s wage at any stage in the hiring process.

Westchester County Criminal Background Checks: Effective March 4, 2019, employers with four or more employees are prohibited from discriminating against an applicant based on that person’s arrest record or criminal conviction pursuant to the Westchester County Fair Chance to Work Act, which amends the Westchester County Human Rights law. Employers must wait to inquire about a person’s arrest record or criminal conviction until after the employment application has been submitted. Before taking any adverse employment action based on an applicant’s criminal history, an employer must perform a written analysis and provide it to the applicant upon request.

Oregon

Minimum Wage: Effective July 1, 2019, the minimum wage will increase from $10.75 to $11.25 per hour in nonrural counties and from $10.50 to $11.00 per hour in rural counties. The Portland area will increase from $12.00 to $12.50 per hour.

Scheduling: Effective January 1, 2019, the Oregon Bureau of Labor and Industries started enforcing the employee work scheduling law, which covers retail, hospitality and food services establishments with 500 or more employees worldwide, including those that are part of a chain. The law came into effect on July 1, 2018, and includes provisions regarding advance scheduling, good-faith estimate of work schedule, employee input into work schedule, voluntary standby list, schedule change premium and minimum time between shifts.

Portland Non-Religion Discrimination: In an amendment to the Portland City Code effective March 29, 2019, “non-religion” is added as a protected class in the Code that already prohibits discrimination on the basis of gender, race, national origin and religion. In addition, the definition of “religion” is broadened to include “non-religion, such as atheism, agnosticism, and non-belief in God or gods as has been recognized by the courts.”

Pennsylvania

Pittsburgh Pregnancy Accommodations: Effective March 15, 2019, the Pittsburgh City Council passed a new ordinance expanding protections for pregnant employees and enacting protections for partners defined broadly as “persons of any gender with whom a pregnant person or a person with a related medical condition has a relationship of mutual emotion and/or physical support” (a marital or domestic relationship is not required). The ordinance requires employers to accommodate pregnant employees (including partners) and initiate an interactive process with these employees (or partners) who are exhibiting issues with work conduct or performance related to their (or their partner’s) pregnancy, childbirth or related medical condition even if they have not asked for an accommodation. Employers are limited in requesting medical documentation only when the employee has requested time off from work (other than the period for recovering from childbirth) or to work from home if the employer requires such documentation from employees for reasons other than pregnancy, childbirth or related medical conditions.

Rhode Island

Paid Sick Leave Increases: Effective January 1, 2019, employees accrue one hour of leave for every 35 hours worked, up to 32 hours in 2019 and may use up to this amount in 2019 (compared to 24 hours of accrual and use in 2018).

South Dakota

E-Cigarettes: Effective July 1, 2019, amendments to South Dakota’s smoking laws includes a ban on smoking of vapor products (e.g., e-cigarettes) in public places and places of employment where smoking tobacco products is prohibited.

Texas

San Antonio Paid Sick Leave: Effective August 1, 2019, employers with more than five employees are required to provide eligible employees with earned paid sick time. Employers with five or fewer employees must comply beginning August 1, 2021. An employee who works at least 80 hours in San Antonio in a year is eligible to earn one hour of paid sick leave for every 30 hours worked. An eligible employee who works for an employer with more than 15 employees may accrue up to 64 hours in a year. All others may accrue up to 48 hours.

Note: There is currently a bill in the Texas legislature, SB 15, that has been introduced to prohibit cities from adopting ordinances to include paid sick leave.

Virginia

Nondisclosure/Confidentiality Agreement: Effective July 1, 2019, HB 1820 prohibits requiring a prospective or existing employee to execute or renew a nondisclosure or confidentiality agreement for the purposes of concealing details of a sexual assault claim.

Minimum Wage: Effective July 1, 2019, exemptions from Virginia’s minimum wage law will be repealed for the following: newspaper delivery persons; shoe-shine employees; caddies who do not work on golf courses; babysitters who work for more than 10 hours per week; and ushers, door attendants, concession attendants and cashiers in theaters.

Washington

Paid Family and Medical Leave Premium Payments: Effective January 1, 2019, employers may collect premiums for Paid Family and Medical Leave from their employees and must provide these payments to the state on a quarterly basis. The first payment will be delayed from April 30, 2019, to July 31, 2019.