State Law Changes

December 7, 2010 Update

No Updates as of December 7, 2010

Unemployment Insurance Law

Basic contribution rates in Arkansas will continue to be increased by both a 0.8% stabilization tax and a 0.1% extended benefits tax in 2011. Thus, rates will range from 1.0% to 6.9% for the year. The rate for new employers will be 3.8%, which also includes the stabilization and extended benefit taxes (AR ¶4-1700).

Minimum Wage Law

Effective January 1, 2011, Colorado's minimum wage will increase to $7.36 per hour, up from the 2010 rate of $7.24 per hour. Also, the tipped employee wage will rise to $4.34 per hour, up from the current $4.22 per hour.

Article XVIII, Section 15, of the Colorado Constitution requires the Colorado minimum wage to be adjusted annually for inflation, as measured by the Consumer Price Index used for Colorado.

In accordance with the constitutional inflation adjustment requirement, the Director of the Division of Labor has adopted Colorado Minimum Wage Order Number 27 to reflect the new state minimum wage. If an employee is covered by federal and Colorado state minimum wage laws, then the employer must pay the higher minimum wage. Federal minimum wage is currently $7.25 per hour, which is lower than the Colorado state minimum wage of $7.36. Therefore, based upon current information, covered employers in Colorado will have to pay their employees the higher value of $7.36 per hour under Colorado law beginning January 1, 2011(http://www.colorado.gov/cs/Satellite/CDLE-LaborLaws/CDLE/1248095305416).

Recordkeeping/Posters Law

The English version of the state’s minimum wage poster has been updated in accordance with Colorado Minimum Wage Order Number 27 (CO ¶6-9900).

Unemployment Insurance Law

For 2011, the “0 or Deficit” rate schedule of the tax table applies, the fund balance having been between those qualifiers as of July 1, 2010. Rates range from 1.0% to 2.7% for positive-balance employers, and from 3.0% to 5.4% for negative-balance employers, with unrated employers paying 1.7%. The surcharge for benefits not effectively charged remains at 0.22%. Note that the solvency tax surcharge remains in effect for 2011 as well. The tax varies by employer, but is charged against all ratable employer accounts with less than 20 percent of excess, excluding government agencies, political subdivisions and nonprofit organizations that are reimbursable employers. Employers with an increased percent of excess pay at a lower rate while those with a decreased percent of excess pay at a higher one. The tax will increase each year for as long as it is required but may not go past the limits set by law in 1990 (CO ¶6-1700).

Minimum Wage Law

Pursuant to Miami-Dade County Code, all covered service contractors with the county with a contract value of over $100,000 per year, and all service contractors at Miami-Dade County Aviation Department facilities without reference to any contract value, are subject to a “living wage.” Effective through September 30, 2011, the Miami-Dade County living wage rate will be no less than $11.60 per hour if the covered employees are part of the service contractor’s qualifying health benefits plan (HBP). If no qualifying HBP is provided by the service contractor, it must pay no less than $13.29 per hour to its covered employees through September 30, 2011 (FL ¶10-1000).

Minimum Wage Law

The Bloomington living wage will remain at $11.25 an hour for 2011 (IN ¶15-1000).

Unemployment Insurance Law

For 2011, the taxable wage base will be $24,700 (IA ¶16-1700).

Preemployment Inquiries Law

Background check provisions have been amended with respect to workers in adult care homes and home health agencies (Ch. 16 (H. 2323), L. 2009, effective July 1, 2010, at KS ¶17-9000).

Unemployment Insurance Law

The taxable wage base in Louisiana for 2011 will remain $7,700. The amount of remuneration subject to unemployment insurance taxes depends on the applied trust fund range in effect. In other words, the standard wage base of $8,500 is adjusted depending on upward or downward trends of the trust fund range. As a result, the wage base may be $7,000, $7,700 or $8,500, depending on the trust fund balance (LA ¶19-1700).

Smoking in the Workplace Law

When persons under 18 years of age are engaged in an organized athletic event at a public facility in Mississippi, no participant in or spectator of the athletic event shall smoke in the facility if the facility is enclosed, or within 100 feet of the facility if the facility is not enclosed, except in designated smoking areas separate from the fields of activity. “Public facility” is defined as any building, gymnasium, athletic field, recreational area or park to which the public is invited, whether there is a charge for admission or not. A person who violates this law is to receive a warning for a first conviction; a fine of $75 for a second conviction; and a fine of up to $150 for all later convictions (S. 2644, L. 2010, at MS ¶25-2700).

Preemployment Inquiries Law

Finding that a federal district court’s request to certify a question involving a Nebraska city ordinance banning the hiring of illegal immigrants did not identify any state constitutional provision unique to Nebraska, the state’s highest court declined the certification request (Keller v City of Fremont, November 5, 2010, per curiam). Concurring separately, Justice Miller-Lerman wrote that the request lacked specificity regarding the nature of the challenge in the case, and thus, the question did not direct the court to the specific state law at issue (NE ¶28-9000).

Family, Medical and Parental Leaves Law

Administrative rules of the Nevada State Personnel Commission regulate leaves of absence for public employees, including leave for up to two hours to donate blood. These rules have been amended to require certain employees who are granted paid administrative leave to be available by telephone and available to report to work under certain circumstances (Nevada Administrative Code 284.589, revised effective October 15, 2010) (LCB File No. R058-10) (NV ¶29-7045).

Unemployment Insurance Law

Services performed by an employee in the construction industry are covered employment unless the presumption of employment can be overcome, as provided under Sec. 861(1)(c) of the Labor Law (NY ¶33-1700).

Smoking in the Workplace Law

Effective November 1, 2010, the State Department of Health is authorized to implement a rebate program for purposes of reimbursing persons or entities that own restaurants located in the state for expenses incurred prior to November 1, 2010, in complying with the requirements imposed by subsection J of Section 1247 of Title 21, with said rebate to equal 50% of the original expenditure, minus depreciation costs, and is to be dispersed only if the restaurant converts completely to a smoke-free environment no later than January 1, 2013 (H. 2774, L. 2010, at OK ¶37-2700).

Smoking in the Workplace Law

Voters in South Dakota approved a referendum in the November 2, 2010, general election, to adopt stricter smoking bans in the state to prohibit smoking tobacco or carrying a lighted tobacco product in any public place or place of employment. The law would not apply to: (1) any private residence unless it is used for day care; (2) sleeping rooms in hotels and lodging establishments rented to guests, provided that any room in which smoking is allowed is posted as a smoking room; (3) certain licensed establishments where 10 percent or more in annual gross income is from the sale of cigars, provided the establishment has a humidor on the premises and is enclosed and equipped with a ventilation system such that the smoke does not enter nonsmoking areas; and (4) retail tobacco stores where 65 percent of the annual gross income is from the sale of tobacco, tobacco products, and accessories for such products, provided the store is enclosed and does not allow consumption of alcoholic beverages on the premises. This law was originally enacted March 19, 2009, and would have become effective on July 1, 2009, except that a petition of the voters was received March 31, 2009, by the Secretary of State, prior to its July effective date. The effect of this petition was to place the measure as a referendum before the voters in the November 2, 2010, general election (Referendum 12) for voter approval or rejection, where it was approved by a majority of the voters (H. 1240, L. 2009, effective November 2, 2010, at SD ¶43-2700).

Unemployment Insurance Law

There will be no employer surcharge in effect for the 4th quarter of 2010, because South Dakota's UI Trust Fund was $27.7 million on September 30. The surcharge comes off when the fund exceeds $16.5 million at the end of any quarter. It automatically goes into effect when the fund balance is below $11 million at the end of any quarter. Since the DOL predicts that the fund balance on December 31 will be $25 million, there also will be no surcharge for the 1st quarter of 2011 (DOL Communication).

Unemployment Insurance Law

The current maximum weekly benefit amount in Texas is $415. The current minimum weekly benefit amount is $60 (TX ¶45-1700).

Age Discrimination Law

A 52-year-old employee was properly prohibited from introducing evidence about her coworker’s termination and his subsequent age discrimination lawsuit, even though they were the only two workers discharged under a RIF, and they were discharged on the same day, the Supreme Court of West Virginia has held, affirming the trial court’s order denying the employee’s post-trial motion in her age discrimination suit (Wells v. Key Communications, L.L.C., October 28, 2010, per curiam).

In another case, the highest court in West Virginia reversed a lower court’s determination in a bench trial that a 60-year-old female employee was wrongly discharged and discriminated against because of her age and sex, in violation of the West Virginia Human Rights Act; the employee had failed to offer proper comparators outside her protected class (Young v Bellofram Corp, November 5, 2010, per curiam). The state supreme court also determined that the trial court had erroneously relied on the employer’s progressive discipline policy in conducting its pretext analysis (WV ¶50-2800).

Minimum Wage Law

From January 1, 2011, to December 31, 2011, the Dane County living wage is $10.61 per hour (WI ¶51-1000).

Recordkeeping/Posters Law

The Dane County living wage poster has been updated (WI ¶51-9900).