State & Local Employment Law Developments: Q4 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. This quarter, state and local legislatures were particularly active in passing laws addressing sexual harassment, discrimination, and a variety of unpaid and paid leaves.

California

Settlement Agreements: Effective January 1, 2020, employers are generally prohibited from including a no-rehire provision in an employment dispute settlement agreement. Such provisions include those that prohibit, prevent or otherwise restrict a settling employee from future employment with the settling employer or a parent company, subsidiary, division, affiliate or contractor of the employer.

The law allows for a no-rehire provision if the employer has made a good faith determination that the aggrieved employee engaged in sexual harassment or sexual assault. In addition, employers are not required to continue to employ or rehire a person if there is a legitimate nondiscriminatory or nonretaliatory reason for terminating the employment relationship or refusing to rehire the person.

For additional information regarding this law and several other laws listed below, please refer to our firm’s previous legal update on recent changes to California employment laws.

Arbitration Agreements: A law set to go into effect on January 1, 2020 that would generally ban employers from using mandatory arbitration agreements has been blocked by a temporary restraining order. If the law proceeds, it would prohibit an employer from either of the following:

• Requiring applicants or employees to waive any rights, forum or procedure established by the California Fair Employment and Housing Act (FEHA), the Labor Code, or other employment statutes as a condition of employment, continued employment or to receive any employment-related benefit.
• Threatening, retaliating, discriminating against or terminating any applicant or employee for refusing to consent to such a waiver.

The law lists specific exemptions from these prohibitions and would apply only to employment contracts entered into, modified or extended on or after January 1, 2020.

Lactation Accommodation: Effective January 1, 2020, California’s lactation accommodation law is expanded to require employers to:

• Provide a safe, clean lactation room free of hazardous materials that is close to the employee’s work area, shielded from view, free from intrusion and that has a surface to place a breast pump and personal items, a place to sit, and access to electricity.
• Provide a sink with running water and a refrigerator (or other device suitable for storing breast milk) in close proximity to the employee's workspace.
• Provide a reasonable amount of break time (running concurrent with other break time) to accommodate an employee desiring to express breast milk each time the employee needs to do so.
• Create and implement a lactation accommodation policy and include it in an employee handbook, along with providing it to employees who ask about or request parental leave.

Discrimination/Harassment Claims: Effective January 1, 2020, AB 9 increases the statute of limitations from one year to three years for employees to file a complaint with the Department of Fair Employment and Housing for claims such as harassment, discrimination and retaliation.

Sexual Harassment Training: For employers with five or more employees, the sexual harassment training requirement for seasonal and temporary workers has been moved from January 1, 2020 to January 1, 2021. Covered employers will need to provide such workers with training within 30 days or 100 hours of employment starting January 1, 2021.

Organ Donation Leave: Effective January 1, 2020, in addition to paid leave, a covered employer is required to provide an employee an additional unpaid leave of absence of up to 30 days in a year for the purpose of organ donation.

Colorado

Vacation Pay: Effective December 19, 2019, the Colorado Department of Labor and Employment’s permanent amendments to its Wage Protection Act Rules prohibits forfeiture of vacation pay and requires employers to pay an employee any “earned and determinable” vacation upon separation of employment. However, an employer may have a vacation policy that caps employees at a year’s worth of vacation pay, but that does not forfeit any of that year’s worth.

Illinois

Recreational Marijuana: An amendment to the Illinois Cannabis Regulation and Tax Act effective January 1, 2020 clarifies that employers may:

• Conduct reasonable drug and alcohol testing for employees or applicants, including nondiscriminatory random drug testing.
• Discipline or terminate an employee for failing such tests.
• Withdraw a job offer because the applicant failed a drug test.

For additional information regarding this Illinois amendment, please refer to our firm’s legal update on the Illinois Cannabis Act amendment.

Gender-Free Restrooms: Effective January 1, 2020, single-occupancy restrooms in a public building or place of public accommodation must be identified as all-gender and designated for use by no more than one person at a time or for family or assisted use.

Maryland

Discrimination/Harassment: Effective October 1, 2019, Maryland’s Fair Employment Practices Act is amended to:

• Expand the definition of employee to include independent contractors.
• Allow harassment claims against employers with at least one employee (previously employers with at least 15 employees).
• Add harassment to the list of prohibitions under anti-discrimination law and expand it to all protected classes under the law.
• Allow for employer liability for harassment claims against supervisors.
• Extend the statute of limitations to file a harassment complaint with local or state agency to 2 years (previously 6 months) and to file a harassment lawsuit to 3 years (previously 2 years).

Montgomery County Hair Discrimination: Effective February 6, 2020, employers may not discriminate against a person based upon protective hairstyles “necessitated by, or resulting from, the immutable characteristics of a hair texture associated with race,” including Afros, braids, locs, curls and twists.

Michigan

Grand Rapids Human Rights: Effective December 1, 2019, Grand Rapids’ Human Rights Ordinance is expanded to:

• Prohibit discrimination and harassment against a current or prospective employee based on actual or perceived protected class status.
• Prohibit discriminatory policies, requirements or advertisements.
• Prevent retaliation against an individual making a complaint or assisting in an investigation.
• Clarify the complaint and investigation process.

New Jersey

Hair Discrimination: In September 2019, the New Jersey Division on Civil Rights issued guidance to clarify how it will apply the New Jersey Law Against Discrimination (NJLAD) to matters of race discrimination based on hairstyle. Employers may not enforce grooming or appearance policies that ban, limit or restrict protected hairstyles to include twists, braids, cornrows, Afros and locs.

Effective December 19, 2019, an amendment to NJLAD provides that race discrimination includes discrimination based on traits historically associated with race, including but not limited to hair texture, hair type and protective hairstyles such as braids, locs and twists.

New York

Reproductive Health Discrimination: Effective November 8, 2019, employers are prohibited from:

• Accessing personal information regarding reproductive health decisions of an employee or the employee's dependents without the employee's prior informed, affirmative written consent
• Discriminating or retaliating against an employee with respect to compensation, terms, conditions or privileges of employment because of or based on the reproductive health decisions of an employee or the employee's dependents.
• Requiring an employee to sign a waiver or other document that denies an employee the right to make reproductive health care decisions, including use of a particular drug, device or medical service.

By January 7, 2020, an employer that provides an employee handbook must include notice of employee rights and remedies under this law.

Wage and Hour: Effective February 11, 2020, the 10 largest members of out-of-state LLCs will be held personally liable for unpaid wages for work performed in New York. This law expands upon a law that previously applied only to New York LLCs.

New York City Independent Contractors/Freelancers: Effective January 11, 2020, the scope of the New York City Human Rights Law expands to provide protections for freelancers and independent contractors against harassment, discrimination and retaliation and allows such workers to file claims with the New York City Commission on Human Rights. These include protections regarding:

• Salary history inquiries.
• Inquiries into an applicant’s criminal record.
• Credit checks during employment process.
• Accommodation requests.
• Lactation accommodation.
• Victims of domestic violence discrimination and accommodation.
• Unemployment discrimination.

New York City Drug Testing: Effective May 10, 2020, employers in New York City may not require a prospective employee to submit to testing for the presence of marijuana or tetrahydrocannabinols (or THC, the main psychoactive component of marijuana) in the individual's system as a condition of employment.

This law does not apply to applicants for certain positions, including police officers or positions requiring a commercial driver's license, or to drug testing that is required by certain laws, regulations or contracts, including U.S. Department of Transportation regulations.

Ohio

Cincinnati Hair Discrimination: Effective January 1, 2020, Cincinnati prohibits discrimination based on “natural hair types and natural hair styles commonly associated with race,” including Afros, braids twists, cornrows and locs.

Cincinnati Salary History: Effective March 13, 2020, employers with at least 15 employees are prohibited from any of the following:

• Asking job applicants about salary history.
• Screening applicants based on their current or prior wages, benefits, other compensation or salary histories, including requiring that they satisfy minimum or maximum criteria on those bases.
• Relying on the salary history of an applicant in deciding whether to offer employment to the applicant or in determining the applicant's salary, benefits or other compensation during the hiring process, including the negotiation of an employment contract.
• Refusing to hire or otherwise disfavor, injure, or retaliate against an applicant who fails to disclose his or her salary history to a prospective employer.

Oregon

Family Leave: Effective January 1, 2020, Oregon’s Family Leave Act amends the definition of serious health condition to include any period of absence for the donation of a body part, organ or tissue, including preoperative or diagnostic services, surgery, post-operative treatment and recovery.

Pennsylvania

Pittsburgh Paid Sick Leave: Pittsburgh’s paid sick leave law, originally set to take effect in 2016, will go into effect March 15, 2020 after a lengthy legal challenge. Employers are required to provide eligible employees with earned paid sick time. An employee who works at least 35 hours in Pittsburgh in a year is eligible to earn one hour of paid sick leave for every 35 hours worked. An eligible employee who works for an employer with more than 15 employees may accrue up to 40 hours in a year. All others may accrue up to 24 hours, in which the first year after implementation is unpaid.

Philadelphia Predictive Scheduling: Effective April 1, 2020 (delayed from January 1, 2020), the Philadelphia Fair Workweek Ordinance will require certain employers that are a retail, hospitality or food services establishment to provide certain employees with advance notice of schedules based on the employer’s good-faith estimate, rest time between shifts and opportunities for additional hours. The good-faith estimate requirements will not be enforced until July 1, 2020.

Texas

San Antonio Paid Sick Leave: This ordinance, scheduled to go into effect on December 1, 2019, has been blocked in a lawsuit contesting its legality.