June 25, 2020

State & Local Employment Law Developments: Q1/Q2 2020

State and local governments are increasingly regulating the workplace. In the first and second quarters of 2020 alone, legislatures were particularly active in passing laws addressing sexual harassment training, discrimination including hair discrimination, criminal background inquiries, salary history, and a variety of unpaid and paid leaves. 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 in compliance. (Please note that developments specifically related to COVID-19 are not included in this update.)

California

Paid Family Leave: Effective July 1, 2020, the maximum duration of paid family leave insurance benefits that an eligible employee may receive during a 12-month period increases to eight weeks (previously six weeks).

Oakland Hotel Worker Safety Protections: Effective July 1, 2020, ballot Measure Z creates the Department of Workplace and Employment Standards to enforce these protections. Under Measure Z, hotel employers with 50 or more guest rooms must provide their employees with the following:

  • Emergency contact devices (“panic buttons”)
  • Rights to report violent or threatening behavior
  • Restrictions on the maximum space to be cleaned
  • Limitations on mandatory overtime

The measure also contains retaliation and retention protections for hotel employees and includes notice and recordkeeping requirements.

Restraining Order: Effective September 1, 2020, an employer, co-worker or school employee may file a court petition requesting a gun violence restraining order against an employee who poses a significant danger of causing personal injury to others by having in their custody or control, owning, purchasing, possessing or receiving a firearm.

Colorado

Overtime and Minimum Pay: Effective March 16, 2020, the Colorado Overtime and Minimum Pay Standards (COMPS) Order #36, replacing Minimum Wage Order #35, contains wage and hour changes to include:

  • An increase in salary thresholds for exempt employees
  • Expanded coverage to nearly all employees
  • Modified rest period requirements
  • Expanded posting requirements that include adding a copy of the COMPS Order or poster to a handbook or policy for those employers that distribute a handbook or policies to their workers

For additional information regarding this Order, please refer to our firm’s legal update on this Colorado COMPS Order.

In addition, temporary amendments to the COMPS Order (set to expire July 14, 2020, but proposed to become permanent) include:

  • Analysis of joint employment under Colorado wage and hour law under the versions of the federal Fair Labor Standards Act (FLSA) and applicable FLSA regulations that were in effect as of May 16, 2019 rather than the current FLSA regulations.
  • Reduction of information required in the earnings statements provided to employees each pay period, specifically eliminating an employee’s address, occupation, date of hire, date of birth (if the employee is under the age of 18) and daily record of all hours worked.
  • Requirement that employers provide employees access to required records of their daily hours and a statement of their occupation through either each pay period's earnings statements (previously mandatory, but now optional), online access to the information (if the employer knows that the employee has an email address) or annually by each January 31st, as well as upon a request that an employee can make once per year.

Hair Discrimination: Effective September 14, 2020, an amendment to the Colorado Anti-Discrimination Act provides that race discrimination includes hair texture, hair type, and protective hairstyles such as braids, locs, twists, tight coils or curls, cornrows, bantu knots, Afros and headwraps that are commonly or historically associated with race.

Connecticut

Sexual Harassment Training: By October 1, 2020, employers must provide sexual harassment training as follows: For employers with three or more employees, employers must provide two hours of sexual harassment training to all employees. For employers with fewer than three employees, employers must provide two hours of sexual harassment training to all supervisors.

New employees hired on or after October 1, 2019, must receive training within six months of their start date. However, employers may request a 90-day extension from the Connecticut Commission on Human Rights and Opportunities by explaining how current COVID-19 restrictions have prevented training.

If existing employees were provided training after October 1, 2018, employers are not required to provide this training again to such employees. Employers must provide subsequent training at least once every 10 years.

District of Columbia

Paid Leave Benefits: Effective July 1, 2020, employees may access paid leave benefits beginning July 1, 2020. An employee may receive up to eight workweeks of benefits in a 52-workweek period for the following qualifying events:

  • Family leave, to provide care or companionship to a family member with a serious health condition (up to six workweeks in a 52-workweek period)
  • Medical leave, for the employee's own serious health condition (up to two workweeks in a 52-workweek period)
  • Parental leave, for the birth of a child, placement for adoption or foster care of a child or placement of a child for whom the employee legally assumes and discharges parental responsibility (up to eight workweeks in a 52-workweek period)

Florida

Pinellas County Wage Theft Notice: Effective February 7, 2020, employers must provide written notice to employees at time of hire and to all employees who work for the employer as of the date of the ordinance and in the future, containing:

  • The rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission or otherwise, including any rates for overtime, as applicable
  • Allowances, if any, claimed as part of the minimum wage, including meal or lodging allowances
  • The regular payday designated by the employer
  • The name of the employer, including any “doing business as” names used by the employer
  • The physical address of the employer’s main office or principal place of business, and a mailing address, if different
  • The employer’s telephone number

Employers must also provide the written notice to an employee whenever anything in the original written notice changes within seven calendar days after the time of the changes.

Illinois

Sexual Harassment Training: The Illinois Department of Human Rights has provided clarity on sexual harassment training requirements in guidance it issued on January 31, 2020. The guidance includes clarifications that:

  • Employers must train all employees in Illinois, including short-term and part-time employees, and interns.
  • Employers are not required to train independent contractors but are strongly advised to train independent contractors who work on-site at the employer’s workplace or interact with the employer’s staff.
  • Employees who perform work or regularly interact with the employer’s employees in Illinois should be trained, even if they are based in another state.

Human Trafficking Training for Lodging Establishments: Effective June 1, 2020, hotels, motels and casino hotels must provide certain employees with training on the recognition of human trafficking and protocols for reporting observed human trafficking to the appropriate authorities. An employer may develop its own training program or use that of a third party that includes the minimum requirements. In addition, the Department of Human Services is expected to develop a training program for use by employers by July 1, 2020.

School Activities Leave: Effective August 1, 2020, Illinois’ School Visitation Rights Act (SVRA) is amended to cover behavioral meetings or academic meetings (previously classroom activities) and prohibit employers from terminating an employee because of an absence that is due solely to a reason protected by the SVRA.

Chicago Paid Sick Leave: Effective July 1, 2020, Chicago’s Paid Sick Leave Ordinance applies to all employers with at least one covered employee, regardless of whether the employer maintains a business facility in Chicago or is subject to any Chicago business license requirements (as previously required). In addition, individuals excluded from coverage include outside salespersons, members of a religious corporation or organization, certain students, motor carriers and certain camp counselors.

Chicago Predictive Scheduling: Effective July 1, 2020, the Chicago Fair Workweek Ordinance requires certain employers in building services, healthcare (effective January 1, 2021 for safety-net hospitals), hotels, manufacturing, restaurants, retail and warehouse services to provide covered employees at least 10 days’ notice of their work schedules and predictability pay for certain changes to the schedule.

For additional information regarding this Chicago ordinance, please refer to our firm’s legal update. Please note that recent amendments to this ordinance allow for certain exceptions during a pandemic (including the COVID-19 pandemic).

Indiana

Microchip Implantation: Effective July 1, 2020, employers are prohibited from requiring current and prospective employees to undergo microchip implantation as a condition of employment or receiving additional compensation or benefits. An employer may require current or prospective employees to comply with a court order directing them to receive the implantation.

Noncompete Agreement: Effective July 1, 2020, employers must include the following provisions in any non-compete agreement with a physician:

  • A clause requiring the employer to provide the physician with a copy of any notice to patients regarding the physician’s departure from the employer.
  • An obligation on the employer to provide contact information for the physician to inquiring patients.
  • The ability for the departed physician to obtain medical records from the employer for patients who provide authorization.
  • The ability of the physician to buy-out the non-compete provision at a reasonable price.

Iowa

Waterloo Criminal Background: Effective July 1, 2020, employers cannot inquire about a job applicant’s criminal records on a job application. In addition, employers with 15 or more employees may not ask an applicant about previous criminal activity before making a conditional employment offer. Employers may discuss the criminal record if voluntarily disclosed by the applicant during a job interview.

Maine

Subminimum Wage: Effective June 16, 2020, employers may no longer pay less than the minimum wage to a person because they have a mental or physical disability.

Maryland

Criminal Background: Effective January 1, 2020, employers with 15 or more full-time employees are prohibited from requiring applicants to disclose whether they have a criminal record or have had criminal accusations brought against them before the first in-person interview and/or retaliating or discriminating against an applicant or employee for claiming a violation of the law.

Employers can inquire about an applicant's criminal background during the first in-person interview.

This law does not prohibit employers from making an inquiry if required or expressly authorized by federal or state law, nor does it apply to employers that provide programs, services, or direct care to minors or vulnerable adults.

Sexual Harassment Settlement Reporting: On or before July 1, 2020, Maryland employers with 50 or more employees must report the following information to the Maryland Commission on Civil Rights:

  • The number of settlements made by or on behalf of the employer after an allegation of sexual harassment by an employee
  • The number of times the employer has paid a settlement to resolve a sexual harassment allegation against the same employee over the past 10 years of employment
  • The number of settlements made after an allegation of sexual harassment that included a provision requiring both parties to keep the terms of the settlement confidential

A second report is due on or before July 1, 2022.

Hair Discrimination: Effective October 1, 2020, an amendment to the Maryland Fair Employment Practices Act provides that race discrimination includes discrimination based on traits associated with race, including hair texture, Afro hairstyles, and protective hairstyles such as braids, locs and twists.

Salary History: Effective October 1, 2020, employers must provide job applicants with a wage range for their potential position upon request. In addition, employers may not take adverse action against applicants for not providing a wage history or rely on an applicant's wage history in considering the applicant for employment or in determining the applicant's wages.

However, after an initial offer of employment with a compensation offer has been made to an applicant, an employer may confirm and rely on voluntarily provided wage history to support a wage offer higher than initially offered, as long as the higher wage does not create an unlawful pay differential based on sex or gender identity.

Salary Disclosure: Effective October 1, 2020, employers may not take adverse action against employees for inquiring about their own wages.

WARN: Effective October 1, 2020, employers with 50 or more employees are required to provide written notice at least 60 days prior to the relocation of a part of an employer’s operation from one workplace to another existing or proposed site or the shutting down of a workplace or a portion of the operations of a workplace that reduces the number of employees by at least 25 percent or 15 employees, whichever is greater, over any three-month period.

Employers must also provide continuation of benefits to affected employees.

Paid Sick Leave: Effective October 1, 2020, the definition of family member for paid sick leave purposes has been expanded to include a legal ward of the employee, and a legal guardian or ward of the employee's spouse.

Facial Recognition: Effective October 1, 2020, an employer may not use a facial recognition service for the purpose of creating a facial template during a job applicant's employment interview unless the applicant provides consent.

New Jersey

Employee Classification: Several bills have been enacted that penalize employers for improperly misclassifying employees as independent contractors and inform employees of their rights. Among these laws are:

  • Effective January 20, 2020, joint liability will be imposed for employee misclassification on labor contractors that provide workers to an employer.
  • Effective January 20, 2020, New Jersey regulators may issue stop-work orders for violations of wage laws, including misclassification, and may require financial penalties for misclassification.
  • Effective January 20, 2020, the New Jersey Department of Labor and Workforce Development is permitted to post a list of wage-law violators on its website.
  • Effective April 1, 2020, employers are required to post notices in the workplace to inform workers of their rights under the state's classification laws.

Family Leave, Sick Leave and Temporary Disability Benefits: Effective March 25, 2020, New Jersey amended the New Jersey Earned Sick Leave Act, New Jersey Family Leave Act (NJFLA), and New Jersey Temporary Disability Benefits Law, which includes New Jersey Family Leave Insurance (FLI), in regards to leave and benefits for employees impacted by a state of emergency or a quarantine or isolation order due to a communicable disease by:

  • Expanding the list of qualifying reasons for use of paid sick leave.
  • Expanding the qualifying reasons for leave under the NJFLA, including the need to care for a child due to the closure of the child’s school or place of care due to a public health emergency.
  • Limiting the NJFLA's key employee exemption.
  • Expanding the eligible reasons an employee may collect temporary disability insurance benefits (TDI).
  • Eliminating the seven-day waiting period for collecting TDI for sickness related to an epidemic.

Effective June 17, 2020, eligible employees who return to work on a reduced basis while recovering from a disability will be paid a reduced amount of temporary disability benefits.

Effective July 1, 2020, the maximum duration for family leave insurance benefits is 12 weeks (previously six weeks) or 56 days (previously 42 days) taken on an intermittent basis. For temporary disability insurance and family leave insurance benefits, an employee's weekly benefit rate is 85% (previously two-thirds) of the employee's average weekly wage, up to a maximum of 70% (previously 53%) of the state average weekly wage.

Pay Statement: Effective May 20, 2020, employers with 10 or more employees must include the following information on employees' pay statements in addition to the already required deductions:

  • Gross wages
  • Net wages
  • Rate of pay
  • Number of hours worked during the pay period (if relevant to the wage calculation)

Employers are permitted to provide pay statements to employees electronically, unless an employee requests statements in paper form.

Organ and Bone Marrow Donation Leave: Effective May 20, 2020, New Jersey's Temporary Disability Benefits Law is expanded to provide job-protected leave to individuals who are unable to work because they are donating an organ or bone marrow. For purposes of donating an organ or bone marrow, the one-week waiting period for the payment of temporary disability benefits is eliminated.

In addition, employers are eligible for a tax credit if they choose to provide a paid leave of absence to employees for bone marrow or organ donation and if such time is in addition to any other paid time off granted to the employee. The credit is equal to 25% of the employee's salary during the time missed from work, for up to 30 days of missed work for each donation.

New Mexico

Nondisclosure Provisions: Effective May 20, 2020, employers cannot require that an employee, as a term of employment, sign a nondisclosure provision of a settlement agreement relating to a claim of sexual harassment, discrimination or retaliation in the workplace.

Confidentiality provisions in settlement agreements are permitted when they relate to the monetary amount of a settlement or, at the employee's request, they prohibit disclosure of facts that could lead to the identification of the employee. However, the existence of a confidentiality provision does not prohibit the disclosure of information required for a judicial, administrative or other governmental proceeding by subpoena or other applicable order required by law.

Pregnancy Accommodation: Effective May 20, 2020, the New Mexico Human Rights Act requires covered employers to provide a reasonable accommodation for an employee or applicant arising from pregnancy, childbirth or a condition related to pregnancy or childbirth, unless doing so would create an undue hardship on the employer's business. Employers cannot, however, require an employee to take paid or unpaid leave if another reasonable accommodation can be provided, unless the employee voluntarily requests to be placed on leave or the employee is placed on leave pursuant to federal law.

In addition, the Act includes pregnancy, childbirth or related medical conditions as a protected class.

Bernalillo County Paid Leave: Effective July 1, 2020, employers with two or more employees within Bernalillo County must provide paid leave to employees that can be used for any reason.

Employees accrue one hour of paid leave for every 32 hours worked, up to 28 hours in a year. Up to 28 hours of paid leave may be used in a year.

Employers must allow employees to carry over up to 28 hours of unused accrued paid leave to the following year.

Effective July 1, 2021, employers with 11 or more employees must provide accrual and use of paid leave of up to 44 hours in a year.

Effective July 1, 2022, employers with 35 or more employees must provide accrual and use of paid leave of up to 56 hours in a year.

New York

Voting Leave: Effective April 3, 2020, New York’s voting leave law is amended (reversing most of the amendments effective April 12, 2019) to require an employer to provide up to two hours of paid voting leave. The amendments also include adding back the requirements that leave may be taken by an employee without sufficient time outside of working hours to vote and that employees must notify their employer at least two workdays (but not more than 10 workdays) before election day of the need for time off to vote.

Wage Theft: Effective June 23, 2020, amendments to the Wage Theft Prevention Act (WTPA) require employers who claim prevailing wage supplements to provide employees with a wage rate notice at the time of hire that includes:

  • Hourly rate claimed
  • Type of supplement, such as pension or health care
  • Names and addresses of the person or entity providing the supplement
  • Agreement, if any, requiring or providing for such supplement, together with information on how copies of such agreements or summaries may be obtained by an employee.

Covered employers are also required to include, on each employee’s wage statement, the type of each prevailing wage supplement claimed and the hourly rate for each supplement or be accompanied by a copy of the hiring notice containing that information.

Effective October 1, 2020, home health care employers in certain locations are required to include the benefit portion of the minimum rate of home care aide total compensation on the home care worker’s wage rate notice at the time of hire and on the wage statements. The wage statement must also include the type of such benefits provided and the name and address of the person or entity providing such benefits.

Tip Credit Reduction: Effective June 30, 2020, the maximum tip credit for workers covered by the Minimum Wage Order for Miscellaneous Industries and Occupations is reduced by 50% (and completely eliminated on December 31, 2020).

Call Center Jobs Notice Requirements: Effective June 30, 2020, the New York Call Center Jobs Act requires covered call center employers to provide advance-notice of at least 100 days to the Labor Commissioner if the employer intends to relocate out of New York State, or reduce call volume by at least 30% with the intent to relocate out of state. In addition, the act requires the Labor Commissioner to keep a list of call center employers that have relocated out of state, which will be available on the New York State Department of Labor website. Such relocations affect the call center employers' access to state grants, tax benefits and procurement contracts.

Sexual Harassment Claims: Effective August 12, 2020, the statute of limitations is extended from one year to three years for employees to file sexual harassment complaints with the New York Division on Human Rights.

New York City Sexual Harassment Training: In New York City’s Commission on Human Rights guidance regarding an amendment to the New York City Human Rights Law (NYCHRL) effective January 11, 2020, which expanded protections under the law to independent contractors and freelancers, employers are now required to provide certain independent contractors and freelancers with sexual harassment prevention training in accordance with the NYCHRL. Similar to employees and interns, independent contractors must receive this training if they work for an employer of 15 or more people, work more than 80 hours in a calendar year and work for at least 90 days.

Suffolk County Criminal Background: Effective August 25, 2020, employers with 15 or more employees are prohibited from inquiring about a job applicant's prior criminal convictions during the application process or before a first interview.

The law allows employers to inquire about prior criminal convictions when:

  • The employer is hiring for licensed trades or professions (including interns and apprentices) and asks applicants the same questions asked by the trade or professional licensing body in accordance with state law.
  • Certain convictions under or violations of state or federal law prohibit employment in that position.
  • The inquiries are authorized by law.

The restrictions do not apply to certain public employers, private schools, and private service providers of direct services specific to the care or supervision of children, young adults, senior citizens or the physically or mentally disabled.

Paid Sick Leave: Effective September 30, 2020, New York's statewide paid sick leave law requires that employers with 100 or more employees provide up to 56 hours of paid sick leave per year and employers with fewer than 100 employees provide up to 40 hours of paid sick leave per year, except employers with fewer than four employees and a net income of less than $1 million, whom can provide sick leave as unpaid.

Employees accrue one hour of sick leave for every 30 hours worked beginning September 30, 2020 or when employment begins, whichever is later. Employers are not required to allow use of sick leave until January 1, 2021.

Unused sick leave must be carried over to the next calendar year, but the employer may limit the amount of sick leave that may be used in a calendar year to 40 hours (employers with fewer than 100 employees) and 56 hours (employers with 100 or more employees).

Sick leave may be used for the employee's or employee’s family member's mental or physical illness, injury or health condition; medical diagnosis, care or treatment; and preventive medical care. It can also be used for an absence for various reasons when the employee or employee’s family member has been the victim of domestic abuse, a family offense, sexual offense, stalking or human trafficking.

Ohio

Toledo Hair Discrimination: Effective January 10, 2020, Toledo prohibits discrimination based on “natural hair types and hair styles or head wraps commonly associated with race, culture or religion,” including Afros, braids, twists, cornrows and locs.

Toledo Salary History: Effective June 25, 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.
  • Relying on an applicant’s salary history in deciding whether to offer employment to the applicant or in determining the applicant's salary, benefits or other compensation, including the terms of an employment contract.
  • Refusing to hire or otherwise retaliate against an applicant who fails to disclose his or her salary history to a prospective employer.

However, employers may discuss salary and benefit expectations with applicants.

Upon reasonable request, an employer must provide the applicable pay scale to applicants who have received a conditional job offer.

Oregon

Scheduling Law: Effective July 1, 2020, covered employers must post the written work schedule at least 14 calendar days (previously seven calendar days) before the first day of the work schedule. Covered employers are retail, hospitality and food services establishments with 500 or more employees worldwide, including those that are part of a chain.

Nondisclosure Agreement: Effective October 1, 2020, employers are restricted from entering into nondisclosure or nondisparagement agreements at the time of hiring and during settlement and severance negotiations that prevents the employee from disclosing or discussing discrimination or sexual assault. However, such provisions are permitted when an aggrieved employee voluntarily requests to sign a nondisclosure, nondisparagement or no-rehire agreement and will have seven days to revoke the agreement and/or if an employer makes a good faith determination that an employee has engaged in discriminatory conduct prohibited by Oregon law, including sexual assault.

Anti-Discrimination Policy: Effective October 1, 2020, employers are required to adopt an anti-discrimination policy, make it available to employees within the workplace, and provide a copy to new hires and to employees who make a complaint about prohibited discrimination or harassment. The policy must include:

  • A process for employees to report prohibited conduct
  • Identification of the person(s) responsible for receiving complaints, including an alternate person
  • The five-year statute of limitation for bringing a claim of discrimination or sexual assault
  • A statement that the employer may not require or coerce employees to sign a nondisclosure or nondisparagement agreement, including a description of the meaning of those terms
  • An explanation that an aggrieved employee may voluntarily request to sign a nondisclosure, nondisparagement or no-rehire agreement and will have seven days to revoke the agreement
  • A statement advising employers and employees to document incidents of unlawful discrimination or sexual assault

The Oregon Bureau of Labor & Industries’ site contains a model policy for employers to use.

Pennsylvania

Philadelphia Salary History: Effective February 6, 2020, an injunction was lifted that had blocked part of a 2017 Philadelphia ordinance that would have prohibited employers from asking applicants about their wage history. As such, employers cannot:

  • Inquire about a prospective employee's wage history in writing or otherwise
  • Require disclosure of a prospective employee's wage history
  • Condition employment or consideration for an interview or employment on the disclosure of wage history
  • Rely on a prospective employee’s wage history from any current or former employer in wage determinations for that individuals at any stage during the employment process, including negotiating or drafting an employment contract, unless the prospective employee "knowingly and willingly" discloses that information
  • Retaliate against a prospective employee for failing to comply with a wage history inquiry or opposing an unlawful act under Philadelphia’s Fair Practices Ordinance

However, employers can take action pursuant to federal, state or local law that specifically authorizes disclosure or verification of wage history for employment purposes. Employers can also ask prospective employees other questions relevant to setting a salary and relative to the position, to including the applicant's salary requirements or expectations, skill level and experience.

South Dakota

Discrimination: Effective July 1, 2020, the South Dakota Human Rights Act is amended to provide discrimination protections to interns.

Texas

Dallas Paid Sick Leave: This ordinance that went into effect on August 1, 2019 for employers with more than five employees, has been blocked effective March 30, 2020 in a lawsuit contesting its legality.

Utah

Medical Marijuana: Effective February 28, 2020, Utah has amended its medical marijuana law to include that private employers are not required to accommodate the use of medical marijuana and are allowed to have policies restricting the use of medical marijuana by applicants or employees.

Virginia

Hair Discrimination: Effective July 1, 2020, an amendment to the Virginia Human Rights Act (VHRA) provides that race discrimination includes discrimination based on traits historically associated with race, including hair texture, hair type, and protective hairstyles such as braids, locs and twists.

Pregnancy Discrimination and Lactation Accommodation: Effective July 1, 2020, employers with five or more employees are prohibited from discriminating against employees based on pregnancy, childbirth or related conditions, including lactation. Employers must also provide reasonable accommodations for employees that are pregnant or have related conditions, including providing lactation breaks.

A covered employer is required to conspicuously post a notice and include information in an employee handbook regarding the prohibition against unlawful discrimination and the right to reasonable accommodations. This information must be provided to:

  • All existing employees by October 29, 2020
  • New employees upon commencement of employment
  • An employee who discloses their pregnancy, within 10 days after disclosure to the employer

Discrimination Protections: Effective July 1, 2020, the Virginia Values Act (VVA) amends the VHRA by:

  • Extending discrimination protections to employees and applicants based on sexual orientation, gender identity and veteran status
  • Expanding the definition of “employer” and extending liability under state law
  • Expanding the list of prohibited actions
  • Detailing lawful employment practices
  • Revising enforcement procedures
  • Expanding damage provisions

Wage Statement: Effective January 1, 2020, employers must provide a written statement to employees each pay day that includes:

  • The employer’s name and address
  • Hours worked (Effective July 1, 2020, this is only required if employee is paid on the basis of [1] the number of hours worked or [2] a salary that is less than the standard salary level adopted by regulation of the Department of Labor pursuant to the FLSA. Previously, the Virginia Department of Labor and Industry (DOLI) stated that enforcement of the hours worked requirement would be delayed until July 1, 2020 for salaried, piece work and other employees not traditionally paid on an hourly basis.)
  • Rate of pay
  • Gross wages
  • Amount and purpose of any deductions

Previously, employers were only required to provide, on an employee’s request, a written statement of gross wages and deductions.

Effective July 1, 2020, the paystub must include sufficient information to enable the employee to determine how the gross and net pay were calculated.

Wage Payment: Effective July 1, 2020, employees have a right to sue an employer in Virginia state court to recover unpaid wages. Employees may sue individually, jointly or in a collective action. If the court finds that the employer knowingly and/or willfully failed to pay the wages, damages may be tripled and civil and/or criminal penalties may also apply.

In investigating an employee's complaint, if the DOLI has a reasonable belief that the employer failed to pay wages to other employees, the DOLI may expand its investigation.

Employers are prohibited from terminating or otherwise discriminating against an employee because the employee has filed a complaint for nonpayment of wages, caused to be instituted any proceeding under wage payment laws, or testified or is about to testify in a wage payment law proceeding.

Wage Disclosure: Effective July 1, 2020, employers are prohibited from discharging or retaliating against an employee for inquiring about, discussing with, or disclosing to another employee any information about either the employee's own or another employee's wages or other compensation, or filing a related complaint with the Department of Labor.

Employee Classification: Effective July 1, 2020, employers cannot retaliate against employees or independent contractors for reporting employee misclassification or because an appropriate authority requests or subpoenas them to participate in a related investigation, hearing or inquiry.

In addition, an individual not properly classified as an employee can sue their employer for failing to properly classify them as an employee if the employer had knowledge of their misclassification.

Whistleblower Protection: Effective July 1, 2020, employers are prohibited from retaliating against an employee because the employee:

  • Reports a violation of any federal or state law or regulation to a supervisor, governmental body or law-enforcement official
  • Is requested by a governmental body or law-enforcement official to participate in an investigation, hearing or inquiry
  • Refuses to engage in a criminal act or follow an employer's order that violates any federal or state law or regulation
  • Participates in an investigation into any alleged violation by the employer of federal or state law or regulation

Criminal Background: Effective July 1, 2020, employers are prohibited from requiring job applicants to disclose information concerning any arrest, criminal charge or conviction for possession of marijuana. An applicant does not have to answer any questions about it or provide such information given such records are no longer open for public inspection.

Noncompete Agreement: Effective July 1, 2020, employers are prohibited from entering into, enforcing or threatening to enforce a covenant not to compete against low-wage employees (i.e., employees who earn less than the average weekly wage in Virginia).

Election Officer Leave: Effective July 1, 2020, Virginia's election officer leave law is expanded to protect local electoral board members and assistant general registrars (previously only election officers). In addition, employers are prohibited from requiring an employee to use sick leave or vacation time for an absence from work to serve at a polling place on Election Day or a meeting to determine election results.

New-Hire Reporting: Effective September 1, 2020, newly hired independent contractors must be reported according to the same requirements as newly hired employees if they have not previously had a contract with an employer or have previously entered into a contract with an employer and have received a payment based on the contract after receiving no payments for at least 60 consecutive days.

Washington

Paid Family and Medical Leave: Effective March 25, 2020, amendments to Washington’s paid family and medical leave expand the definition of a covered child and include definitions for casual labor, paid time off and supplemental benefits.

Effective June 11, 2020, this paid family and medical leave is further amended regarding waiting periods, supplemental benefit payments, benefits disqualification, conditional waivers, voluntary plan premiums, and enforcement and penalties.

Hair Discrimination: Effective June 11, 2020, an amendment to the Washington Law Against Discrimination (WLAD) provides that race discrimination includes discrimination based on traits historically associated or perceived to be associated with race, including hair texture and protective hairstyles such as Afros, braids, locs and twists.

Immigrant Discrimination: Effective June 11, 2020, the Washington Law Against Discrimination is amended to prohibit discrimination based on citizenship and immigration status.

Pregnancy Discrimination: Effective June 11, 2020, the time to file an administrative complaint with the Washington Human Rights Commission regarding pregnancy discrimination is extended from six months to one year.

Lactation Accommodation: Effective June 11, 2020, employers with 15 or more employees may no longer require certification to support the need for a lactation accommodation.

Overtime Exemption: Effective July 1, 2020, Washington's overtime exemption regulations are amended to raise the minimum salary levels and simplify the duties test for most exempt employees to more closely align with the Federal Labor Standards Act (FLSA) duties tests. Effective January 2021, Washington’s minimum salary will exceed the FLSA amount by rising to approximately $827 per week (or $43,004 per year for employers with 50 or fewer employees and to approximately $965 per week (or $50,180 per year) for employers with more than 50 employees.

Seattle Hotel Employee Protections: Effective July 1, 2020, Seattle's four ordinances (collectively known as the Hotel Employee Protections Ordinances) require hotel employers to:

  • Take certain steps to protect employees from violent or harassing conduct by guests
  • Limit the workload to reduce frequency and occurrence injuries associated with room cleaning
  • Provide increased access to medical care
  • Take actions to reduce job insecurity

Seattle Paid Sick and Safe Time: Effective March 18, 2020, amendments to Seattle’s Paid Sick and Safe Time (PSST) permit employees to use PSST when a family member’s school or place of care has been closed and/or when an employee’s place of business (for an employer with 250 or more full-time equivalent employees) has reduced operations or closed for any health or safety reason.

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