State Law Changes

April 21, 2010 Update

No Updates as of April 21, 2010

Disability Law

The Arkansas Department of Human Services, its divisions, offices and programs have adopted a revised policy, DHS 1078, that prohibits discrimination on the basis of disability against qualified individuals with disabilities in regard to job application procedures, hiring, advancement, discharge, compensation, and other terms, conditions, and privileges of employment. All medical examinations and inquiries will be conducted as required by federal law. Reasonable accommodation will be made for qualified individuals with disabilities, if the reasonable accommodation does not create an undue hardship. The revisions simplify the DHS policy and revise the ADA complaint process (Policy DHS 1078, Secs. 1078.1.0 through 1078.8.0 and Attachment A, as amended effective February 16, 2010, at AR ¶4-2600).

Wage Payment Law

A wage theft ordinance has been adopted by the Miami-Dade County, Florida, Board of Commissioners. The ordinance prohibits wage theft and provides administrative procedures and a private cause of action for employees working for private employers within the boundaries of the county. Under this new ordinance, an employer who fails to pay any portion of wages due to an employee within a reasonable time from the date the employee performed the work for compensation will be considered to have engaged in wage theft (Miami-Dade County, Florida, Ordinance No. 10-16, enacted February 18, 2010, and effective February 28, 2010. Filed December 3, 2009, No. 093228, at FL ¶10-1200).

Health Insurance Benefit Coverage Law

In a challenge to federal health care reform, Idaho Governor C.L. “Butch” Otter signed the “Idaho Health Freedom Act” on March 17, 2010. House Bill 391 exercises state sovereignty to declare as state policy the right of all persons residing in Idaho to choose or decline to choose any mode of securing health care services free from the imposition of penalties, or threat of penalties, by the federal government. The bill also removes authority of any state official or employee from enforcing any penalty that violates the policy, and gives the Attorney General authority to take action to defend the prosecution of rights protected under the law and to seek injunctive relief against any law or regulation enacted by any government that would violate the policy.

”Congress and the White House are working out their scheme for pushing through a healthcare ‘reform’ bill that has more pages than the U.S. Constitution has words. I guarantee you that not a single member of the House or Senate has a complete understanding of that legislation any more than they understood all the implications of the USA PATRIOT Act back in 2001,” Governor Otter said. “What the Idaho Health Freedom Act says is that the citizens of our state won’t be subject to another federal mandate or turn over another part of their life to government control. ”The Idaho Health Freedom Act also takes into account the work that Idaho already is doing on its own to promote greater accessibility and affordability to health care for all Idahoans. That involves working closely to create and nurture public-private partnerships to develop primary care medical homes throughout Idaho, expand medical residency programs, expand the safe and secure electronic exchange of health information, and improve the voluntary enrollment of Medicaid-eligible children (Idaho Governor C.L. “Butch” Otter Press Release, March 17, 2010; Ch. 90 (H. 391), L. 2010, at ID ¶13-4000).

Holiday and Vacation Law

Upon separation from state employment and to the limits allowed by state law, all classified officers and employees shall receive a lump sum payment for accrued but unused vacation leave at the hourly rate of pay of that officer or employee (S. 1247, L. 2010, as amended by S. 1247, L. 2010, at ID ¶13-7400).

Second Amendment Rights in Employment Law—Topic added.

Employees will be protected in their right to possess a firearm or ammunition in a locked car under a new law enacted in Indiana effective July 1, 2010. H. B 1065, prohibits a person, including an individual, corporation, and a government entity, from adopting or enforcing a policy or rule that has the effect of prohibiting a person, including a contract employee, from legally possessing a firearm or ammunition in the locked trunk of the employee’s vehicle, glove compartment of the locked vehicle, or stored out of sight in the locked vehicle while the vehicle is on the person’s property, unless the firearm or ammunition requires a certain federal license to possess. This right to possess does not apply on school property, property used by a school for a school function, or on a school bus; on certain child care and shelter facility property; on penal facility property; in violation of federal law; on property belonging to an approved postsecondary educational institution; on the property of a domestic violence shelter; at a person's residence; on the property of a person that is subject to the United States Department of Homeland Security's Chemical Facility Anti-Terrorism Standards and licensed by the United States Nuclear Regulatory Commission; on property owned by a public utility that generates and transmits electric power or a department of public utilities; and in an employee's personal vehicle if the employee is a direct support professional who uses the employee's personal vehicle while transporting an individual with developmental disabilities. Title 34, Article 28, Chapter 7, Sections 34-28-7-1 through 34-28-7-5, as enacted by H.B 1065, L. 2010, effective July 1, 2010.

Violence in the Workplace Law

Indiana Gov. Mitch Daniels (R) has signed into law a measure that bars employers from prohibiting employees from keeping a firearm in their locked vehicles on employer property, making Indiana the most recent of at least a dozen states to have enacted “guns at work” legislation. H. 1065 prohibits employers from adopting or enforcing a policy that prohibits employees, including contract employees, “from legally possessing a firearm or ammunition that is locked in the trunk of the employee’s vehicle, kept in the glove compartment of the employee’s locked vehicle, or stored out of sight in the employee’s locked vehicle while the vehicle is in or on the person’s property, unless the firearm or ammunition requires a certain federal license to possess.” It provides that courts do not have jurisdiction over suits brought against employers “to recover for any injury or damage resulting from the employer’s compliance” with the law; however, persons harmed by a violation of H. 1065 may bring a civil action for damages, costs, and injunctive relief. Certain ambiguities in the law may require refining at a later date to avoid “unnecessary litigation,” Daniels conceded, in signing the measure, “but the understandable concerns raised against the bill do not suffice to justify a trespass on a fundamental right so expressly protected by our founding documents.” The law provides certain exemptions, including school or university property, child care facilities, certain public utilities, personal residences, and other locations where possession would violate federal law. According to the Brady Campaign to Prevent Gun Violence, 12 states have enacted similar bills: Alaska, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Minnesota, Mississippi, Montana, Oklahoma and Utah. The Indiana law takes effect July 1, 2010 (H. 1065, L. 2010, at IN ¶15-3300).

Disability Law

Existing code references to “persons with physical disabilities” have been changed to “persons with disabilities.” Additionally, revisions have been made to accessibility requirements for curb ramps and sloped areas in intersections with streets, roads, and highways (S. 2202, L. 2009, enacted March 22, 2010, at IA ¶16-2600).

Military and Emergency Services Leave Law

A state employee shall take either a full day's leave or eight hours of compensatory time on a day in which the state employee receives a full day's pay from federal funds for “state military service” (formerly, for “national guard duty”) (H. 2137, L. 2009, enacted March 22, 2010, at IA ¶16-7200).

Plant Closing Law

The Iowa Worker Adjustment and Retraining Notification Act ("WARN" Act) was signed by Governor Chet Culver on March 22, 2010. House File 681, which becomes effective on July 1, 2010, requires employers to notify employees, or their representatives, and the Department of Workforce Development of business closings that result in a layoff of 25 or more full-time employees and mass layoffs that are reductions in the workforce of at least 25 employees in a 30-day period. This notice requirement also applies to rolling layoffs if 25 employees are laid off in a 90-day period. Employers are not required to give notice in the events of lockouts and strikes, natural disasters, unforeseeable circumstances, and for plant closings by faltering companies. An employer who violates this act will be subject to a civil penalty of not more than $100 for each day of the violation. These penalties are the exclusive remedies for violations and a court will not be able to enjoin a business closing or mass layoff (State of Iowa 2010, Office of the Governor and Lt. Governor, Press Release, March 22, 2010 (IA ¶16-3500).

Smoking in the Workplace Law

Kansas law prohibiting smoking in public places, at public meetings, and in state and local government buildings, except for in designated smoking areas, has been amended to extend the smoking ban statewide. Effective July 1, 2010, the Kansas Clean Indoor Air Act will prohibit smoking in public places; taxicabs and limousines; common areas in public and private buildings, condominiums and other multiple-residential facilities; access points of all building and facilities unless exempted by the bill; and any place of employment. Exceptions will apply to outdoor areas beyond public access points; private homes and residences, unless the home is used as a day care home; hotel and motel rooms, if the total percent of rooms rented do not exceed 20 percent; gaming floors of a lottery gaming or racetrack gaming facility; designated areas of adult care homes and long-term care medical facilities; tobacco shops; certain class A and B clubs; and private clubs in designated areas where minors are prohibited. Employers will be required to adopt and maintain a written policy prohibiting smoking in the workplace; the policy must be communicated to all employees. Smoking will also be prohibited in day care homes during hours when children not related to the operator are being cared for (H. 2221, L. 2009, enacted March 12, 2010, and effective July 1, 2010, at KS ¶17-2700).

Fair Employment Practices Law

The Missouri Supreme Court rejected an at-will hospital employee’s claim that he was wrongfully discharged for reporting safety violations to his superiors, holding that the case did not fall under the public policy exception to at-will employment because the federal and Missouri regulations cited to support his claim did not prohibit the conduct that he reported. A wrongful discharge action must be based on a constitutional provision, statute, or regulation based on a statute or a rule promulgated by a governmental body, held the supreme court. Rejecting the worker’s reliance on a federal regulation that grants a patient “the right to receive care in a safe setting” (42 CFR 482.13(c)(2)), the court concluded that the regulation was personal to the patient and too vague to support the wrongful discharge action. The court also rejected the worker’s reliance on a state regulation dealing with hospital hazards (19 CSR 30-20(K)(3)), holding that the regulation impacted building safety, not patient treatment, and that mere citation to the regulation was insufficient to support the employee’s claim that his discharge violated a clearly mandated public policy. In a sharp dissent, Judge Teitelman criticized the majority’s reasoning, stating that the regulations cited did express a clear and important public policy requiring hospitals to take steps to ensure patient safety and, therefore, supported the employee's wrongful discharge claim (Margiotta v Christian Hosp Northeast Northwest, February 9, 2010, at MO ¶26-2500).

In a unanimous decision, the Missouri Supreme Court has expressly adopted a public-policy exception to the state’s at-will employment doctrine, in the case of an employee who sued for wrongful discharge when she was fired the day after telling her supervisor about her telephone conversation with a federal Department of Labor investigator regarding its investigation into possible overtime pay violations by the employer. The high court also held “contributing factor” is the appropriate standard of causation in such cases. The court noted that while “exclusive Causation” is the appropriate standard for workers’ compensation cases, it is not the proper standard for wrongful discharge based on the public-policy exception. Employees would be discouraged from reporting their employers’ violations of the law or refusing to violate the law if “exclusive causation” were the standard, determined the court. In the case at hand, the trial court had instructed the jury that it must find for the employee if she was fired “because” she communicated with the investigator. Since the employer did not argue that “because” is an easier standard than “contributing factor,” it failed to show that it was prejudiced by the trial court’s jury instruction (Fleshner v Pepose Vision Institute, February 9, 2010, at MO ¶26-2500).

Drug Testing Law

Following a railroad engineer’s inability to provide a urine sample during a random drug test, a benefit fund properly refused to pay him “held out of service” benefits as specified in a member agreement. As a matter of law, he willfully refused to provide the sample and was, therefore, barred from receiving benefits, ruled the Nebraska Supreme Court (Jackson v B'hood Relief and Comp Fund, March 19, 2010, Gerrard, J). It was undisputed that the engineer could not provide a urine sample, although asked to do so by the collector repeatedly during a three-hour period. After an investigation, he was suspended for nine months in accordance with Federal Railroad Administration regulation 49 CFR Sec. 219.107(a) for violating the employer’s drug and alcohol policy, and he was denied “held out of service” benefits from the fund. However, he was awarded $53,010 for breach of contract in a bench trial on the grounds that his failure to produce a sample was not willful. The Supreme Court, having this case before it for the second time, had no trouble holding that the engineer’s failure to provide a urine sample was a willful act falling within an exception to the agreement’s “held out of service” benefits provision (the fund’s constitution). He was required to submit to the test by federal law and his employer, and he didn’t even try to comply. Failure to provide a urine sample is considered a refusal to submit to a drug test under federal DOT regulations and is a willful violation. Also, the engineer’s trial evidence of medical inability, which did not tie prostatitis to his inability to produce a sample, was insufficient, not meeting regulatory requirements for an excuse. Therefore, the trial court’s ruling was reversed and remanded with instructions to dismiss the complaint (NE ¶28-8600).

Child Support Enforcement Law

Employers with 50 or more employees will be required to electronically transfer to the state income withheld from employees pursuant to support orders (Ch. 2 (A. 1), L. 2009, enacted February 28, 2010, at NV ¶29-5500).

Unemployment Insurance Law

For every quarter of 2010, a full 1.0% surcharge will be added to all employers' tax rates. Negative-rated employers (employers whose rates are assigned under Schedule II or III) will have 1.5% added to their tax rates in addition to the 1.0% surcharge. The new employer rate for all four quarters of 2010 is 3.7% (DES Communication, at ¶30-1700).

Affirmative Action Rules-Public Contracts

Each public agency shall annually designate an officer or employee, who may be an existing officer or employee, to serve as its public agency compliance officer and shall notify the Division of the designation by January 10 of each year. Such notice to the Division is required even if the designation from the previous year has not changed. The public agency shall also notify the Division of any changes in the designated public agency compliance officer that may have occurred during the calendar year. Also, a public agency may award a contract without affirmative action evidence in an emergency situation. In such a situation, the public agency shall document that an actual emergency exists, which affects the public health, safety or welfare and requires the public agency to immediately award a contract for construction or the delivery of goods and services, including professional services, and that to delay the award of the contract would endanger public health, safety, welfare or property. The contractor shall be required to comply with the affirmative action rules prior to payment. Title 17, Chapter 27, Sections 17:27-1.1 through 17:27-12.5, as readopted March 10, 2010 and amended April 5, 2010. Paras 31-23.450.01 through 31-23,461.05.

Whistleblower Protection Law

A whistleblower protection law for public employees was signed into law on March 1, 2010. The “Whistleblower Protection Act,” effective May 19, 2010, will prohibit a public employer from taking retaliatory action against a public employee who (1) communicates to the employer or a third party information about an action or a failure to act that the employee believes in good faith constitutes an unlawful or improper act; (2) provides information to, or testifies before, a public body as part of an investigation, hearing or inquiry into an unlawful or improper act; or (c) objects to or refuses to participate in an activity, policy or practice that constitutes an unlawful or improper act. Public employers that violate the law will be liable to the employee for actual damages, reinstatement with seniority rights, two times the amount of back pay with interest and compensation for any special damage sustained as a result of the violation, plus litigation costs and reasonable attorney fees. This Act will apply to civil actions for damages resulting from retaliatory action that occurred on or after July 1, 2008 (Ch. 12 (H. 165), L. 2010, at NM ¶32-3600).

Plant Closing Law

The New York Department of Labor has adopted revised emergency regulations pertaining to the New York State Worker Adjustment and Retraining Notification (WARN) Act. These emergency regulations provide substantial changes from earlier emergency rulemaking, filling gaps in the law in order to more fully inform employers of their obligations and workers of their rights. They expand definitions and make clarifications relating to notice, temporary or seasonal employment, enforcement and confidentiality. The regulations are necessitated by the dramatic job losses within the state, which reflected an unemployment rate of 9.0 percent in December 2009, as seasonally adjusted, matching a 26-year high. These revised emergency rules replace emergency rules that expired February 12, 2010, and are expected to be made permanent and part of the New York Official Compilation of Codes, Rules and Regulations, Title 12, Part 921, as Sections 921-1.0 through 921-9.1 (New York State Register Notice, March 3, 2010. I.D. No. LAB-09-10-00005. Filing No. 155. Filed and effective February 12, 2010; expire May 12, 2010. NY ¶33-3500).

COBRA Law

The state has temporarily extended the time after employment during which a person can keep the person's health insurance coverage (H. 300, L. 2009, enacted February 26, 2010, at OH ¶36-4200).

Freedom of Conscience Act

Oklahoma's Freedom of Conscience Act prohibits employers from discriminating against an employee or prospective employee by refusing to reasonably accommodate the religious observance or practice of the employee or prospective employee, unless the employer can demonstrate that the accommodation would pose an undue hardship on the program, enterprise, or business of the employer, in circumstances involving medical procedures associated with a human embryo or euthanasia. The Act was originally enacted by S.B. 1878, L. 2007, effective Nov. 1, 2008. However, the original law contained several abortion-related pieces of legislation that were combined at the last minute to form an omnibus abortion bill. Because SB 1878 contained several different pieces of legislation within one, the Oklahoma Supreme Court determined that it violated the One Subject Rule and declared all provisions within SB 1878 unconstitutional. The current legislation overturns the existing provisions and recodifies the law. Title 63, Sections 1-728a through 1-728F, as enacted by S.B 1891, L. 2009, effective April 2, 2010. Paras 37-20,250.01 through 37-20,250.06.

Second Amendment Rights in Employment Law—Topic added.

It shall be unlawful for any private or public employer doing business in Oklahoma to ask any applicant for employment information about whether the applicant owns or possesses a firearm. Private employers who violate this provision shall, upon conviction, be guilty of a misdemeanor punishable by a fine of not more than $1,000. Public employers and public officials who violate this provision shall be deemed to be acting outside the scope of their employment and shall be barred from seeking statutory immunity from any exemption or provision of The Governmental Tort Claims Act. Title 21, Part VI, Chapter 53, Section 1289.27, as enacted by Ch. 242 (H.B. 1025), L. 2009, effective May 22, 2009. Para 37-20,037.01.

Fair Employment Practices Act

It is unlawful for employers to obtain or use for employment purposes information contained in the credit history of an applicant for employment or an employee, or to refuse to hire, discharge, demote, suspend, retaliate or otherwise discriminate against an applicant or an employee with regard to promotion, compensation, or the terms, conditions or privileges of employment based on information in the job applicant or employee’s credit history. Senate Bill 1045, signed by Governor Ted Kulongosky on March 29 effective immediately, also provides exceptions for financial institutions, public safety offices, and other employment if credit history is job-related and such use is disclosed to the applicant or employee. Aggrieved employees and job applicants may file a complaint with the Commissioner of the Bureau of Labor of file a civil action for relief. Title 51, Chapter 659A, Section 2 as enacted and 659A.885, as amended by Ch. 102 (S.B. 1045), L. 2010, effective March 29, 2010. Paras 38-20,025.885 and 38-20,026.05.

Leave for Victim of Certain Crimes Rules

The rules were amended to include the reasonable safety accommodation requirements added to the act by S.B. 920, L. 2009 for employees who are victims of certain crimes. Chapter 839, Division 9, Sections 839-009-0325 through 839-009-0365, as amended effective Feb. 24, 2010. Paras 38-21,100.01 through 38-21,100.11.

Family Medical Leave Rules

The rules implementing the Oregon Family Leave Act (OFLA) were amended to reflect some recent amendments to federal Family and Medical Leave Act (FMLA) regulations (29 C.F.R. Part 825), and clarify, edit and make housekeeping changes. Chapter 839, Division 9, Sections 839-009-0200 through 839-009-0300, as amended effective Feb. 24, 2010. Paras 38-22,500.001 through 38-22,500.10.

Military Family Leave Rules—Topic added.

Rules were adopted by the Oregon Bureau of Labor on Feb 24, 2010, implementing the newly enacted Oregon Military Family Leave Act (Ch. 559 (H.B. 2744), L. 2009, which entitles spouses and domestic partners of military service members to 14 days’ family leave prior to service member’s deployment or leave from deployment during a period of military conflict. The rules will be contained in the Oregon Administrative Rules at Chapter 839, Division 9, Sections 839-009-0370 through 0460, as adopted effective Feb. 24, 2010. Paras 38-22,501.01 through 38-22,501.09.

Child Labor Law

The state has enacted a law revising provisions regarding the age of who may sell, serve, or dispense alcoholic beverages on a licensed premise (H. 1002, L. 2010, at SD ¶43-1500).

Garnishment Law

The state has amended its garnishment law to increase the amount of days that a lien on wages may be continued (H. 1092, L. 2010, at SD ¶43-5600).

Health Insurance Benefit Coverage Law

Effective July 1, 2010, no insurer may ask any questions about an individual's status as a victim of domestic violence for the purposes of offering, selling, or renewing coverage; limiting coverage; or charging a rate different from that normally charged for the same coverage under any life or health insurance policy (H. 1189, L. 2010, at SD ¶43-4000).

Preemployment Inquiries Law

Counties will be allowed to require criminal background checks for persons seeking employment under a law enacted on February 25, 2010 (H. 1082, L. 2010, at SD ¶43-9000).

Workers' Compensation Law

The state's workers' comp law has been amended with respect to out-of-state providers and burial expenses (H. 1118, L. 2010, at SD ¶43-4300).

COBRA Law

Utah's mini-COBRA law has been amended to extend coverage pursuant to the American Recovery and Reinvestment Act of 2009, as amended (H. 39, L. 2010, at UT ¶46-4200).

Employment of Aliens-State Employment Law

Utah Governor Gary R. Herbert signed "Verification of Employment Eligibility Act," S.B.251, L. 2010, on March 31, 2010, to require private employers who employ 15 or more employees not to hire a new employee unless the employer is registered with a status verification system to verify the federal legal working status of any new employee and uses the status verification system to verify the federal legal working status of the new employee in accordance with the requirements of the status verification system. However, there are no penalties for employer noncompliance and employers are not mandated to register with the Department of Commerce, which in effect makes the law voluntary. Currently, public employers are required to register and E-Verify or another employment verification system to verify the eligibility of their new employees. According to the governor’s press release, this legislation is expected to be amended before July 1, 2010, implementation to ensure participation in the program voluntary. Title 13, Chapter 47, Sections 13-47-101 through 13-47-204, as enacted by S.B. 251, L. 2010, and effective July 1, 2010. Paras 46-24,050.07.

Health Insurance Benefit Coverage Law

The state's health insurance law has been amended with respect to dependent coverage and catastrophic coverage of mental health conditions (H. 39, L. 2010, at UT ¶46-4200).

COBRA Law

The state has enacted a law requiring small employers providing group health insurance coverage to offer to certain employees whose employment is involuntarily terminated the option to continue their coverage for any additional period, extending beyond the nine months of COBRA continuation coverage that was formerly required, as may be specified by future amendments to the American Recovery and Reinvestment Act (Ch. 21 (H. 554), L. 2010, at VA ¶48-4200).

EEO in State Employment Executive Directive 1-10

Virginia Governor Robert F. McDonnell has issued an executive directive establishing “a standard of conduct to ensure that all cabinet members, Executive Branch agency heads, managers, supervisors and employees understand and enforce state and federal law prohibiting employment discrimination.” Specifically, the directive states that the Virginia Human Rights Act recognizes the unlawfulness of conduct that violates any Virginia or federal statute or regulation governing discrimination against certain enumerated classes of persons. The Equal Protection Clause of the United States Constitution prohibits discrimination without a rational basis against any class of persons. Discrimination based on factors such as one’s sexual orientation or parental status (emphasis added) violates the Equal Protection Clause of the United States Constitution. Therefore, discrimination against enumerated classes of persons set forth in the Virginia Human Rights Act or discrimination against any class of persons without a rational basis is prohibited. This directive comes on the heels of the governor's February 5, 2010, executive order that removed sexual orientation as a protected class in the state workforce. Executive Directive 1-2010, effective March 10, 2010. Para 49-23,302.02.

Health Insurance Benefit Coverage Law

Virginia has enacted laws providing that Commonwealth residents cannot be required to obtain or maintain a policy of health insurance coverage, regardless of eligibility under any policy or program provided by or through his or her employer or a plan sponsored by the Commonwealth or the federal government. The laws also provide that no provision under the Commonwealth’s insurance law (Title 38.2, Code of Virginia) renders a resident liable for any penalty, assessment, fee, or fine as a result of his or her failure to procure or obtain health insurance coverage. The laws do not apply to individuals voluntarily applying for coverage under a state-administered program pursuant to Title XIX or Title XXI of the Social Security Act (Medicare or Medicaid) nor to students required to obtain and maintain health insurance as a condition of enrollment in an institution of higher learning. The laws would not impair the rights of a person to contract privately for health insurance (S. 283, S. 311 and S. 417, identical bills, enacted March 10, 2010, and effective July 1, 2010, at VA ¶48-4000).

COBRA Law

The state has enacted a law addressing the procedures governing conversion rights upon termination of eligibility for group health plan coverage (Ch. 110 (H. 2521), L. 2009, enacted March 18, 2010, effective June 10, 2010, at WA ¶49-4200).

Fair Employment Practices Law

Effective June 10, 2010, Washington will provide employment protection for employees of private and public employers who are members of the civil air patrol acting in emergency service operations (Ch. 170 (S. 6647), L. 2009, enacted March 23, 2010, at WA ¶49-2500).

Also effective June 10, 2010, Human Rights Commission complainant who have limitations related to language proficiency or cognitive or other disabilities will receive special accommodation during the procedure (Ch. 85 (S. 6591), L. 2009, enacted March 17, 2010, at ¶49-2500).

Law Against Discrimination

After the filing of any complaint, the chairperson of the commission shall refer it to the appropriate section of the commission's staff for prompt review and evaluation of the complaint. During this process, if the complainant has limitations related to language proficiency or cognitive or other disability, as part of the review and evaluation, the commission's staff must contact the complainant directly and make appropriate inquiry of the complainant as to the facts of the complaint. Title 49, Chapter 49.60, Section 49.60.240, as amended by Ch. 85 (S.B. 6591), L. 2009, effective June 10, 2010. Para 50-20,025.240.

Military and Emergency Services Leave Law

The state's military leave law has been amended with respect to military leave pay for public officers and employees, effective June 10, 2010 (Ch. 91 (H. 2403), L. 2009, enacted March 17, 2010, at WA ¶49-7200).

Wage Payment Law

The state has enacted a law intended to improve the administration of wage complaints. The law defines the limitations period for administrative wage claims through the Department of Labor and Industries; clarifies the requirements for the department to extend the time period for wage complaint investigations; revises the department's bond authority; tolls the civil statute of limitations; increases minimum penalties for violators; provides for penalties for repeat violators; and provides for wage law violation liability for successor businesses (Ch. 42 (H. 3145), L. 2009, enacted March 12, 2010, effective June 10, 2010, at WA ¶49-1200).

Employment of Aliens Law

West Virginia Governor Joe Manchin III (D) signed into law on March 16, 2010, H.B. 3301 amending the state’s law on verification of the legal employment status of workers. Under current law, West Virginia employers must maintain records on the persons they employ, including records proving the legal status or authorization to work of all employees. These records must be made available to the Commissioner of Labor for inspection and investigation as the commissioner deems necessary and appropriate for the purposes of determining whether any employer, firm or corporation has violated the law. The law also amends and reenacts the West Virginia Code to make the failure to keep records on employees a separate offense. If, upon inspection or investigation, the commissioner believes that an employer violated the law, the commissioner will issue a notice to produce records or documents to the employer. Any employer who knowingly and willfully fails to maintain records is guilty of a misdemeanor and, upon conviction thereof, is fined $100 for each offense. The law also authorizes the commissioner to issue an order terminating undocumented employees. Chapter 21, Article 1B, Sections 21-1B-5, 21-1B-7 and 21-1B-8, as amended and enacted by H.B. 3301, L. 2010, effective June 7, 2010. Paras 51-24,050.05, 51-24,050.07 and 51-24,050.08.

Recordkeeping/Posters Law

West Virginia Governor Joe Manchin III (D) has signed into law a measure (H. 3301) amending the West Virginia law on verification of the legal employment status of workers. Under current law, West Virginia employers must maintain records on the persons they employ, including records proving the legal status or authorization to work of all employees. These records must be made available to the Commissioner of Labor (or an authorized representative) for inspection and investigation as the commissioner deems necessary and appropriate for the purposes of determining whether any employer, firm or corporation has violated the law. H. 3301 amends and reenacts the West Virginia Code to make the failure to keep records on employees a separate offense. If, upon inspection or investigation, the commissioner believes that an employer violated the law, the commissioner will issue a notice to produce records or documents to the employer. Each notice must be in writing, describing with particularity the nature of the violation, including a reference to the law violated. Employers have up to 72 hours, or for good cause shown to the commissioner, a greater period of time, to produce the employment status verification records or risk receiving a citation from the commissioner. Any employer who knowingly and willfully fails to maintain records is guilty of a misdemeanor and, upon conviction thereof, is fined $100 for each offense. The law also authorizes the commissioner to issue an order terminating undocumented employees (H. 3301, L. 2010, enacted March 16, 2010, and effective June 7, 2010, at WV ¶50-9900).

Breastfeeding Rights in Employment Law—Topic added.

A mother may breastfeed her child in any public or private location where the mother and child are otherwise authorized to be. In such a location, no person may prohibit a mother from breastfeeding her child, direct a mother to move to a different location to breast-feed her child, direct a mother to cover her child or breast while breast-feeding, or otherwise restrict a mother from breast-feeding her child. Although the statute doesn’t specifically name employers, it can be construed to include places of employment. Chapter 253, Sections 253.16, as enacted by Act 148 (A.B. 57, L. 2009), effective March 24, 2010. Para 52-22,650.01.

Family, Medical and Parental Leaves Law

The Wisconsin Supreme Court will decide whether Milwaukee voters were fully informed about the content of a ballot measure requiring employers within the city to provide paid sick leave to employees. Nearly 70 percent of voters approved the direct legislation in the November 2008 election. 9to5, National Association of Working Women organized the paid sick days campaign, which allowed the measure to get on the ballot. The Metropolitan Milwaukee Association of Commerce (MMAC) filed suit to stop the implementation of the ordinance. The Wisconsin Court of Appeals ducked the issue, asking the Wisconsin Supreme Court in February 2009 to take up the case. Tom Sheehan, court information officer for the Wisconsin Court System, said the Supreme Court accepted the case on March 16, 2010, but has not yet set a date to hear oral arguments.

In June 2009, Milwaukee County Circuit Court Judge Thomas Cooper ruled that the city’s paid sick leave ordinance, which provides up to nine paid sick days per year based on the number of hours worked and the size of the business, was “invalidly enacted and unconstitutional” (Metropolitan Milwaukee Assoc of Comm v City of Milwaukee, Milwaukee County Circuit Court, No 08cv018220). While the court did not find the ordinance improperly enacted under state and federal preemption grounds, it determined that the ordinance’s reach “exceed[ed] its grasp,” as it was improperly enacted under Wisconsin’s Direct Legislation statute. The ballot question for the ordinance failed the statute’s requirement that it have “a concise statement of its nature” because of how it defined “employers within the city” and “sick leave.” The circuit court also held that the ordinance’s provisions regarding relocation due to domestic or sexual violence or stalking and taking legal action to such matters were unconstitutional, as an invalid exercise of the City’s police powers. 9to5 appealed Cooper’s ruling. The supreme court will not consider substance of the ordinance itself, but instead whether the ballot question put before Milwaukee voters complied with the statutory requirement that it contain “a concise statement of [the ordinance’s] nature” –whether voters were informed about the process.

Meal and Rest Periods Law

Effective March 25, 2010, a mother is allowed to breastfeed her child in any public or private area where she is otherwise authorized to be (Act 148 (A. 57), L. 2009, enacted March 10, 2010, at WI ¶51-1400).

Military and Emergency Services Leave Law

Employers will be required to permit an employee who is a volunteer firefighter, emergency medical technician, first responder or ambulance driver for a volunteer fire department, fire company, a public agency or a nonprofit corporation to be late for or absent from work if the lateness or absence is due to the employee responding to an emergency that begins before the employee is required to report to work (Act 140 (S. 308), L. 2009, enacted March 3, 2010, at WI ¶51-7200).

Child Support Enforcement Law

Medical support provisions of the state's child support law have been amended (S. 8, L. 2010, effective July 1, 2010, at WY ¶52-5500).