2021 continues the trend of increasing regulation of the workplace by state and local governments. 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 and your organization stay compliant. (Please note that developments specifically related to minimum wage rates and COVID-19 are not included.)
For information regarding new California laws for 2021, please refer to our firm’s legal update on the subject.
Veterans Preference Law: Effective September 7, 2021, private employers are allowed to adopt a policy of veteran preference in hiring if the following criteria are adhered to:
- The policy is applied uniformly to all hiring decisions.
- Veterans are required to provide proof of service by furnishing a copy of their discharge document (DD214).
- Spouses of service members killed in the line of duty are required to provide proof of marriage to the service member and a copy of the service member's DD214 and death certificate.
- The policy is in writing, public and implemented at least 14 days before it is applied to any new job posting or hiring decision.
The law also stresses that employers in Colorado may advertise for and actively recruit veterans regardless of whether a veterans’ preference hiring policy is adopted.
Colorado Anti-Discrimination Act (CADA): Effective September 11, 2021, CADA is amended to include gender identity and gender expression as a basis for discrimination. "Gender expression" means an individual's way of reflecting and expressing the individual's gender to the outside world, typically demonstrated through appearance, dress and behavior. "Gender identity" means an individual's innate sense of the individual's own gender -- which may or may not correspond with the individual's sex assigned at birth. Additionally, the definition of "sexual orientation" has been changed from “an individual's orientation toward heterosexuality, homosexuality, bisexuality, or transgender status or another individual's perception thereof” to “an individual’s identity, or another individual's perception thereof, in relation to the gender or genders to which the individual is sexually or emotionally attracted and the behavior or social affiliation that may result from the attraction.”
Smoking Law Enhancement: Effective October 1, 2021, employers must not only prohibit smoking in any part of a facility under the employer’s control, but the state smoking law is amended to include vapor products and electronic nicotine and cannabis delivery systems as well. The amendment also dictates that the smoking law applies to all employers rather than only those with five or more employees.
Age Information on Applications: Effective October 1, 2021, it is prohibited for an employer to request or require certain age-related information on a prospective employee's initial employment application. Unless the information is requested because of a bona fide occupational qualification or need or is required for compliance with a state or federal law, it is prohibited to request age, date of birth or dates of attendance at or graduation from an educational institution.
New Hire Reporting of Independent Contractors: Effective October 1, 2021, employers are required to submit a new hire report for any independent contractor providing services and paid $600 or more per calendar year. The report must include:
- Independent contractor’s name, address, and Social Security or other identifying number.
- The date services for payment were first rendered.
- The employer’s name, address, and EIN.
The report must be filed within 20 days after the date of the first payment made to the independent contractor or the date on which the contract was entered into, whichever is earlier.
Ban the Box: Effective October 18, 2021, employers are prohibited from requesting criminal history record information on an initial employee application form or stating on an initial employee application form or advertisement that a person with a criminal history may not apply or will not be considered for a position.
Exceptions to those prohibitions include instances in which compliance with a federal or state law mandates an applicant’s disqualification for a position due to a criminal conviction or imposes an obligation on an employer not to hire an applicant who has been convicted of a certain type of offense or requires that an employer conduct a criminal history record check.
Wage Overpayment Limitation: Effective October 18, 2021, the law regarding erroneous wage overpayments made by an employer is amended as follows:
- The maximum amount an employer may withhold from an employee's pay to recover overcompensation is decreased from 10% to 5%. This limit does not apply if the employee provides written permission for a greater withholding.
- Paid leave is excluded from the definition of overcompensation.
- An employer is prohibited from recovering more than the amount of overcompensation paid in the 3 years preceding the discovery of the error.
It is also noted that these provisions do not limit or affect an employee’s general civil remedies against an employer.
Maine Human Rights Act (MHRA): Amendments to the MHRA become effective on October 18, 2021 and expands prohibition of discrimination based on:
- An employee having received an order of protection;
- Familial status, to include adult family members dependent for care; and
- Actual or perceived gender identity.
Nursing Mothers, Lactating Employees and Pregnancy Accommodations: With an implementation date of January 1, 2022, accommodation requirements are amended to apply to employers with 15 or more employees (previously 21 or more). The changes include the following:
- Removal of the length-of-service and hours-worked requirements for employee eligibility.
- An employee’s ability to take lactation breaks is limited to the 12 months following the child's birth.
- Employers are prohibited from reducing an employee's compensation for time used to express milk.
Unemployment Eligibility Restrictions: Effective July 1, 2021, the definition of “unemployment” excludes individuals receiving voluntary payments from employers if those payments equal their regular salary and individuals on administrative leave. Additionally, the definition of “wages” is to include payments from employers in lieu of an employee’s regular wages. The Department of Employment Security is given authorization to determine if an employer report on contributions due is correct and to assess and negotiate settlements on any past due amounts and interest owed and penalties.
Marijuana Law: Effective January 1, 2022, marijuana is included in the definition of lawful product. At that time, an employer may not discriminate against an individual for their use of marijuana during off-duty hours. Exceptions include:
- The use affects the employee's ability to perform job-related employment responsibilities or compromises the safety of another employee.
- Conflicts with a bona fide occupational qualification that is reasonably related to the employee's employment.
- Violates a personal service contract with an employer and the unique nature of the services provided authorizes the employer to limit the use of marijuana.
Hairstyle Discrimination: Effective September 11, 2021, race is inclusive of characteristics such as skin color, hair texture and protective hairstyles. Protective hairstyles include braids, locks, and twists.
An employer may only enact a bona fide health and safety standard that regulates characteristics associated with race if the employer demonstrates that:
- Without the implementation of such standard, it is reasonably certain that the health and safety of the applicant, employee, or other materially connected person will be impaired.
- The standard is adopted for non-discriminatory reasons.
- The standard is applied equally.
- The employer has engaged in good faith efforts to reasonably accommodate the applicant or employee.
Restrictive Covenant Ban for Hourly Employees: As of October 1, 2021, non-compete agreements are banned between an employer and employees paid solely on an hourly wage basis, exclusive of any tips or gratuities.
Bernalillo County Earned Paid Time Off Accrual and Use: The Employee Wellness Act (EWA) requires covered Bernalillo County employers to provide eligible employees with earned paid time off to be used for any reason. Beginning October 1, 2021, employees working for employers with 11 or more employees may accrue and use up to 44 hours in a year (up from 28 hours in 2020). The maximum annual accrual and use amount increases again for certain employers on October 1, 2022.
Use of Drivers License for Employment Purposes: Effective January 1, 2022, it is illegal for an employer to ask the prospective employee to produce a valid driver’s license as a condition of employment or continuation of employment. The only exception is if the ability to legally drive is an essential function of the job or is related to a legitimate business purpose.
Additionally, an employer will not refuse to accept any other identification documents that are deemed acceptable for the purpose of forms prescribed by the United States citizenship and immigration services that are used for verifying the identity and employment authorization of individuals hired for employment in the United States from an employee or prospective employee as an alternative to a driver’s license.
Expansion of Family Leave Rights: Effective January 1, 2022, Oregon amends and expands its Family Leave Act. The amendments:
- Allow employees of a covered employer to take leave during a public health emergency, with certain exceptions.
- Allow employees who separate from employment to take leave if they are eligible for leave at the time of separation and are reemployed within 180 days.
- Allow employees to take leave if they are eligible at the beginning of a temporary cessation of scheduled hours of 180 days or less and return from work at the end of the temporary cessation f scheduled hours of 180 days or less.
- Codify regulatory provisions providing for childcare leave due to a public health emergency and verification of such leave.
- Remove gendered language from provisions related to pregnancy.
- Defines the term “family member” to include the spouse of an employee, the biological, adoptive or foster parent or child of the employee, the grandparent or grandchild of the employee, a parent-in-law of the employee or a person with whom the employee was or is in a relationship of in loco parentis.
Non-compete Agreement Enforceability: Any non-compete agreement entered into on or after January 1, 2022 is valid and enforceable for 12 months. This is a reduction from the previous 18-month period.
With limited exception, an employee must earn at least $100,533 instead of using the Census Bureau’s data as an income basis. This amount will be adjusted annually for inflation.
The definition of a non-compete agreement will become limited to written agreements, with the previous “oral, express or implied” language being eliminated.
Hairstyle Discrimination: Taking effect January 1, 2022, amendments to the Oregon Fair Employment Practices Law clarify the meaning of race to include natural hair, hair texture, hair type and protective hairstyles for purposes of prohibited discrimination. "Protective hairstyle" means a hairstyle, hair color or manner of wearing hair that includes, but is not limited to, braids, regardless of whether the braids are created with extensions or styled with adornments, locs and twists.
The amendment also addresses employer dress code, and does not prohibit an employer from enforcing an otherwise valid dress code or policy as long as:
- The employer provides for reasonable accommodation based on an individual's health and safety needs.
- The dress code or policy does not have a disproportionate adverse impact on a protected class.
Allegheny County Paid Sick Leave Law: With an expected implementation date of December 1, 2021, the Allegheny County Paid Sick Days Ordinance (PSDO) ratifies amendments to Allegheny Health Department Rules and Regulations.
The PSDO requires employers with 26 or more employees to provide paid sick time to eligible employees. Employees will accrue a minimum of one hour of paid sick time for every 35 hours worked within Allegheny County. Employees will accrue no more than 40 hours of sick time in a calendar year unless an employer designates a higher amount. Accrued hours less than 40 hours will carry over into the following calendar year.
Accrual begins the later of when the law takes effect or when employment begins.
Employees may use accrued paid sick time beginning on the 90th calendar day following the beginning of their employment
- The employee's or a family member's mental or physical illness, injury or health condition or need for medical diagnosis, care or treatment or preventive medical care.
- Closure of the employee's place of business or child's school or place of care due to a public health emergency.
- Care for a family member whose presence in the community would jeopardize the health of others because of exposure to a communicable disease.
Temporary Caregiver Benefits: Beginning January 1, 2022, the maximum number of weeks of paid temporary caregiver leave increases from four weeks to five weeks in a benefit year. The number increases to six weeks on January 1, 2023.
Sexual Harassment: As of September 1, 2021, the Texas Labor Code regarding sexual harassment is amended to define an employer as a person who employs one or more employees or acts directly in the interests of an employer in relation to an employee. The term "sexual harassment" is defined as an unwelcome sexual advance, a request for a sexual favor or any other verbal or physical conduct of a sexual nature if submission to the advance, request or conduct is:
- A term or condition of an individual's employment, either explicitly or implicitly.
- As the basis for a decision affecting the individual's employment.
- The purpose or effect of unreasonably interfering with an individual's work performance.
- Has the purpose or effect of creating an intimidating, hostile, or offensive working environment.
An employer commits an unlawful employment practice if sexual harassment of an employee occurs and the employer or the employer's agents or supervisors knows or should have known that the conduct constituting sexual harassment was occurring; and fails to take immediate and appropriate corrective action.
Military Member Protections: As of September 1, 2021, the following take effect regarding military members in Texas:
Unemployment Disqualification: Individuals will not be disqualified for unemployment insurance benefits if their separation from employment was caused by their being called to provide:
- Service in the uniformed services (as defined by federal law).
- Service in the Texas military forces.
Texas Guardsmen Right to Sue: State activated Texas military force members must be returned to the same job they held prior to being placed on orders. Further, these employees cannot be subjected to the loss of seniority, vacation time or any other benefit that they would have enjoyed had they not been ordered to duty. The law specifically allows for the recovery of attorney’s fees and court costs in addition to declaratory or equitable relief and monetary damages.
Overtime for Agricultural Workers: Effective January 1, 2022, if an agricultural employee works over 55 hours in any one workweek, they must be paid one and one-half times their regular rate of pay for all hours over 55.