State Law Changes

February 4, 2009 Update

No Updates as of February 4, 2009

Minimum Wage Law

A California appellate court has ruled that a regulation limiting application of Los Angeles's Living Wage Ordinance to employees of private firms based upon a minimum number of hours worked on city contracts conflicted with the Living Wage Ordinance’s language, and thus was invalid. The (now-rescinded) regulatory provision that restricted the reach of the ordinance to employees who work at least 20 hours during the month on a city service contract was found to be in direct conflict with the ordinance's articulated remedial purpose (Aguiar v. Superior Court of Los Angeles County, CalCtApp, No. B208614, January 20, 2009) (CA ¶5-1000).

Overtime Pay Law

A company’s formula for computing overtime pay on semi-annual bonuses paid to hourly employees did not violate state law, a California appeals court ruled, noting that no state court decision, statute, or regulation governs compensation of bonus overtime. The company calculated the overtime due on the bonus by dividing the employee's maximum base bonus by the minimum number of paid hours required to achieve that maximum bonus (1,000) to determine a regular hourly bonus rate, and then by multiplying the number of overtime hours worked during the bonus period by one-half of that regular bonus rate (Marin v Costco, CalCtApp, December 23, 2008).

Workers’ Compensation Law

New regulations and forms used in the agreed medical evaluator/qualified medical evaluator (AME/QME) process were approved by the Office of Administrative Law and filed with the California Secretary of State on January 13, 2009. The modifications govern the AME/QME panel process. The new regulations and forms, part of Title 8 of the California Code of Regulations, sections 1 through 159, become effective February 17, 2009. Further information and the new regulations and forms can be found at http://www.dir.ca.gov/dwc/DWCPropRegs/qme_regulations/qme_regulations.htm (State of California Division of Workers Compensation Newsline, No. 08-09, January 22, 2009).

Also, the Division of Workers’ Compensation (DWC) has posted an order adjusting the ambulance services section of the Official Medical Fee Schedule (OMFS) to conform to changes in the January 1, 2009, Medicare payment system. The Centers for Medicare and Medicaid Services (CMS) announced that the ambulance inflation factor for calendar year 2009 would be 5 percent and has published its 2009 ambulance fee schedule public use file, which contains rates for 2009. The administrative director has now adopted an order, effective January 1, 2009, which incorporates the CY 2009 ambulance fee schedule public use file. For services rendered on or after January 1, 2009, the rates in the CY 2009 ambulance fee schedule public use file shall be used. Further information and the order adopting the adjustment can be found at http://www.dir.ca.gov/dwc/OMFS9904.htm (State of California Division of Workers Compensation Newsline, No. 02-09, January 6, 2009).

The DWC also has posted its proposed updates to the Notice to Employees poster and Medical Provider Network (MPN) regulations on an online forum where members of the public may review and comment (State of California Division of Workers Compensation Newsline, No. 07-09, January 21, 2009). The proposed regulations will update the poster to include:

• A statement that temporary disability benefits, for injuries on or after January 1, 2008, may not extend for more than 104 weeks within five years from the date of injury;
• Updated language regarding the use of MPNs;
• Removing vocational rehabilitation benefits reference based on the program sunset of January 1, 2009.

The proposed changes are in the California Code of Regulations, Title 8, sections 9767.12, 9767.16, 9880, 9881, and 9881.1. The forum can be found at http://www.dir.ca.gov/Wcjudicial.htm.

Employment of Aliens Regulations

The Colorado Division of Employment and Training, Workforce Development Programs has adopted regulations to implement the Colorado Nonimmigrant Agricultural Seasonal Worker Pilot Program Act. The main purpose of these regulations is to establish requirements for participation in the Colorado Nonimmigrant Agricultural Seasonal Worker Pilot Program and ensure implementation of the Program complies with applicable state and federal law..

These regulations establish minimum requirements to expedite the federal labor certification application and approval process for the issuance of H-2A visas by the United States government. The purpose of the Program is to ensure that Colorado agricultural employers have labor sufficient to meet the seasonal demands of the agriculture industry. 1104-01, Chapters 1 through 5, as adopted effective Dec. 19, 2008. 6-24,100.01, 6-24,100.02, 6-24,100.03, 6-24,100.04, and 6-24,100.05.

Family, Medical and Parental Leave Law

The Connecticut Department of Labor has issued a document on its Internet website to provide guidance on the interaction between new federal FMLA regulations and the Connecticut FMLA regulations. Connecticut has its own state Family and Medical Leave Act (CFMLA) that covers employers with 75 or more employees. Employers who are covered by both laws have raised questions as to how the CFMLA and its regulations will interact with the revised federal regulations. The document is available on the Connecticut Department of Labor's website at http://www.ctdol.state.ct.us/wgwkstnd/fmla/FMLA-Guidance.pdf.

The Connecticut Department of Labor will be proposing many corresponding revisions to the state FMLA regulations. Some of these revisions will merely codify existing enforcement practices, and the Department will be essentially conforming to the new federal regulation, even in advance of formally amending the corresponding state regulation. Other revisions will make a clear change in enforcement policy and can only be implemented through the formal rulemaking process. The Department notes that there are also a number of federal changes that it does not plan to incorporate into the state regulations, either because (1) there is a lack of statutory authority for the new federal rule under the state regulations, or (2) the federal change would undermine a substantive employee protection under the state's regulations. Once the Department proposes changes to the state FMLA regulations, there will be an opportunity for public comment, including a public hearing, before the proposed changes are reviewed by the Attorney General and the Legislative Review Regulations Commission.

For further information, contact George Wentworth, Director, Office of Program Policy, at the Connecticut Department of Labor: (860) 263-6755 or by E-mail at george.wentworth@ct.gov (Connecticut Department of Labor FMLA Alert, Posted January 16, 2009).

Unemployment Insurance Law

Connecticut Governor M. Jodi Rell announced on January 15 that unemployed Connecticut residents who have exhausted their 20 weeks of federally extended jobless benefits are now eligible for 13 more weeks of compensation. The Governor said the 13-week extension applies to those jobseekers who have exhausted their initial 26 weeks of state unemployment insurance and the 20 weeks of federal benefits are now eligible for a “Second-Tier” of 13 weeks. Under federal guidelines, the 13 additional weeks are being made available to states experiencing unemployment rates of more than 6 percent over a certain amount of time (State of Connecticut Executive Chambers Press Release, January 15, 2009).

Office of Anti-Discrimination Rules and Regulations

The Office of Anti-Discrimination has adopted rules containing procedures established by the Department of Labor for carrying out its responsibilities in the administration and enforcement of the state's discrimination in employment act. Title 19, Section 1311, as adopted effective Jan. 1, 2009. 8-20,125.01.

No Updates as of February 4, 2009

Human Rights Commission Rules of Practice and Procedure

The Illinois Human Rights Commission has amended its provisions to reflect the amendments incorporated into the Human Rights Act, effective January 1, 2008. The amendments reflect that the Human Rights Commission now has statutory authority to hear and determine requests for review of the Department of Human Rights‘decisions to dismiss a charge or issue a notice of default. Title 56, Chapter XI, Part 5300, Subpart D, Sections 5300.400 and 5300.490, as amended and repealed effective Jan. 2, 2009. 14-20,125.04.

Meals and Rest Periods Law

An amendment to the Illinois "One Day Rest In Seven Act," mandating two 15-minute paid breaks and a 30-minute unpaid lunch period to hotel room attendants, was preempted by the NLRA, the Seventh Circuit ruled. The provision was not a generally applicable minimum labor standard but concerned only one labor group in a certain industry within one Illinois county. Thus, it didn't just provide a backdrop for labor negotiations; it encouraged obtaining benefits via the legislative process. The two paid breaks and other rights embodied in the measure were items a union would have difficulty negotiating at the bargaining table, and were not "minimal," the court noted. As such, the provision impeded the collective bargaining process and market forces, and was incompatible with the NLRA's goals of fostering collective bargaining and a negotiated grievance process (520 S. Mich Ave Assoc dba The Congress Plaza Hotel v Shannon, 7thCir, December 15, 2008, at IL ¶14-1400).

Drug Testing Law

An employer that provided prompt oral notice to a discharged employee of his right to a confirmatory drug test, but did not give written notice until the employee filed a lawsuit five months after his termination, failed to comply with the notice requirements of Iowa's drug-free workplace law, the Iowa supreme court ruled. Although the court determined that substantial, rather then strict, compliance with the law could suffice, it found that the oral notice provided by the employer, standing alone, was inadequate to convey to the employee all of the protections afforded by the law. The long-delayed written notice also failed to bring the employer into substantial compliance with the law, even though the employee requested a retest pursuant to that notice which confirmed the previous positive test results. The court also found that because the retest confirmed the employee's violation of his employer's anti-drug policy, his employment was not adversely affected by an erroneous test result and the employer was authorized to discharge the employee. Thus, the employee was not entitled to back pay, punitive damages, or reinstatement. But because the employer's delay in providing written notice provoked the employee's lawsuit to enforce compliance, the employee was entitled to attorney fees and court costs (Sims v NCI Holding Corp, IowaSCt, January 9, 2009) (IA ¶16-8600).

No Updates as of February 4, 2009

No Updates as of February 4, 2009

Breastfeeding Rights in Employment Law—Topic added.

A mother may breastfeed her child in any public place or establishment or place which is open to and accepts or solicits the patronage of the general public and where the mother and her child may otherwise lawfully be present. Eventhough the statute doesn’t specifically mention employment, it can be construed to include places of employment. Chapter 111, Section 221, as enacted by Ch. 466 (S.B. 2438), L. 2008, effective April 9, 2009. 22-22,650.01.

Meal and Rest Periods Law

A mother may breastfeed her child in any public place or establishment or place that is open to and accepts or solicits the patronage of the general public and where the mother and her child has a right to be. Although the statute does not specifically mention employment, it can be construed to include places of employment. No entity or person may, with the intent to violate a mother's right to breastfeed, restrict, harass or penalize the mother who is breastfeeding her child. Violators are subject to a civil action in which the court may award actual damages up to $500, enter an order to restrain such unlawful conduct, and award attorney's fees. This law does not apply to a place of religious instruction or worship, however (Ch. 111, Sec. 221, added by Ch. 466 (S. 2438), L. 2007, effective April 9, 2009, at MA ¶22-1400).

Health Insurance Benefit Coverage Law

The Commonwealth Health Insurance Connector Authority (Connector) has issued guidance regarding Massachusetts’ minimum creditable coverage (MCC) requirements. The guidance clarifies that, under the state’s health care reform law, employers and plan sponsors are not required to provide coverage that meets the Connector Board’s MCC standards. But employers, plan sponsors and carriers are required to provide a written statement annually to each subscriber or covered individual residing in the Commonwealth to whom they have provided minimum creditable coverage in the previous calendar year. As such, they will need to determine if their health benefit plans satisfy the MCC standards (Administrative Information Bulletin 01-08, November 25, 2008, at MA ¶22-4000).

In 2009, employers are required to pay their Fair Share Employer Contributions on a quarterly basis. The quarterly rate is 25 percent of the annual rate, or $73.75 per full-time employee. Employers that fail to make the required contributions are subject to penalties assessed by the state’s director of unemployment assistance (Ch. 149, Sec. 188, as amended by Ch. 302 (H. 5022), L. 2007, at MA ¶22-4000).

The state’s Employee Health Insurance Responsibility Disclosure (HIRD) form has been updated for 2009. Employers of 11 or more full-time-equivalent employees must collect these forms when an employee declines health insurance, a Section 125 plan, or both (MA ¶22-4000).

Unemployment Insurance Law

The Michigan Employment Security Act is amended to provide that an individual who is the spouse of a full-time member of the United States armed forces who leaves work due to the military duty reassignment of the member to a different geographic location would not be disqualified from receiving unemployment benefits. Benefits paid to a military spouse because of such relocation would not be chargeable to the employer but instead would be charged to the nonchargeable benefits account. Also, the law relating to disqualification from benefits for discharge without good cause or other disqualifying act has been amended to clarify the number of weeks an individual must wait before being about to requalify, depending on benefit years (Sections 421.20 and 421.29 are amended by Public Act 479 (H. 6426), L. 2008, and by Public Act 489 (H. 6427), L. 2008, effective January 9, 2009, at MI ¶23-1700).

No Updates as of February 4, 2009

No Updates as of February 4, 2009

Unemployment Insurance Law

Registered nurses who went on strike in part because of a hospital's ongoing unfair labor practices were eligible for unemployment benefits during the strike, the Missouri supreme court held, since state law expressly grants such benefits where a claimant's employer has committed unfair labor practice violations. Moreover, the unemployment compensation law was not preempted—notwithstanding that state laws regulating or prohibiting NLRA-protected conduct are preempted—as Congress intended states to make policy decisions regarding unemployment benefits. The state's labor and industrial relations commission does not make the determination whether an unfair labor practice violation has occurred, the high court noted. Rather, in this case the NLRB and a district court had separately found, and the Eighth Circuit twice affirmed, that the hospital committed unfair labor practices when it repeatedly refused to discharge nurses who did not pay union dues, as required by the union security clause of a bargaining agreement. Nor did the state's provision granting benefits to unfair labor practice strikers violate equal protection, since it served a legitimate interest (St. John's Mercy Health System v Div of Emp Sec'y, MoSCt, January 13, 2009, at MO ¶26-1700).

Smoking in the Workplace Law

The New Hampshire Health and Human Services Department has adopted indoor smoking rules implementing provisions of the state’s Indoor Smoking Act relating to administer fines for noncompliance, of up to $100 a day for a first offense and up to $200 a day for each subsequent offense (New Hampshire Code of Administrative Rules, Chapter He-P 1905 and 1906, effective January 1, 2009, at NH ¶30-2700).

Health Insurance Benefit Coverage Law

A new law in New Jersey, known as “Grace's Law,” requires state-regulated health insurers to cover the cost of hearing aids for children who are 15 years old or younger. Coverage must include the purchase of a hearing aid for each ear, when medically necessary and as prescribed or recommended by a licensed physician or audiologist. Benefits may be limited to $1,000 per hearing aid for each hearing-impaired ear every 24 months. The law was named for Grace Gleba, a young girl who was born with a severe hearing impairment (Ch. 126 (S. 467), L. 2008, enacted December 30, 2008 and effective March 30, 2009, at NJ ¶31-4000).

Recordkeeping/Posters Law

New Jersey has issued a poster on the state's Family Leave Insurance program at NJ ¶31-9900.

Plant Closing Law

Reminder: The New York State Workers Adjustment and Retraining Notification (WARN) Act took effect on February 1, 2009. This Act requires employers to provide 90 days' notice prior to a plant closing, mass layoff or relocation occurring on or after February 1, 2009. Notice must be provided to affected employees and their representatives, the New York Department of Labor and the local workforce investment board at least 90 days before the event. For employers planning layoffs shortly after the new law takes effect, notice would have to be provided prior to the law's effective date to meet the 90-day requirement. The state WARN Act applies to private employers with 50 or more workers who layoff at least 25 employees. Violations are enforceable by the Commissioner of Labor and are subject to civil penalties and back wages (New York State Department of Labor Notice, January 6, 2009, previously reported at NY ¶33-3500).

Minimum Wage Law

New York Labor Commissioner M. Patricia Smith announced on January 26 the formation of New York Wage Watch, which will focus on a variety of illegal practices, jointly referred to as wage theft, including payment of subminimum wages; nonpayment of wages; failure to pay overtime; tip stealing; and other such violations (New York State Department of Labor Notice, January 26, 2009). The effort will start with a pilot program with several groups in New York City and Long Island for the first six months, and then be opened up to interested groups from throughout the state. Participating groups will select a geographic zone for their efforts, and within that zone, they will participate in a range of activities aimed at improving compliance, including holding know-your-rights training; providing employers with information about compliance; and distributing literature to workers in other community settings. When they encounter workers facing serious violations of the law or employers with detailed questions about compliance, New York Wage Watch groups will have a designated point person for referrals in the Labor Department's Division of Labor Standards, which enforces wage and hour laws. The Department will provide training and materials to participating groups.

After a six-month pilot period, the Labor Department will begin seeking additional groups who wish to participate statewide. Groups need not have prior labor-related experience. For more information on establishing a local Wage Watch group, send an email to NewYorkWageWatch@labor.state.ny.us or call 1-888-52-LABOR.

No Updates as of February 4, 2009

Health Insurance Benefit Coverage Law

Under a new law in Ohio, health benefit plans and public employee benefit plans may not contain a provision that limits or excludes coverage for expenses sustained due to an insured's use of alcohol and/or drugs, if the expenses are otherwise covered under the plan. This prohibition is applicable to health benefit plans delivered, issued for delivery or renewed on or after 180 days following the law’s effective date (Sec. 3923.82, as added by Session Law No. 160 (H. 493), L. 2008, enacted January 6, 2009 and effective April 7, 2009, at OH ¶36-4000).

Military and Emergency Services Leave Law

State employees trained to participate in a funeral honors detail at the funeral of a veteran and who are retired or active members of the armed forces of the United States or of a reserve component of the armed forces, including the Ohio National Guard, are entitled to take up to 20 hours of paid leave for those hours the employee is absent from work in order to participate in a funeral honors detail at the funeral of a veteran (H. 450, L. 2007, enacted January 6, 2009, and effective April 7, 2009, at OH ¶36-7200)

Ohio law also provides that those on leaves of absence by reason of service in the uniformed services or in the Ohio organized militia have the same reemployment and reinstatement rights as granted under the federal Uniformed Services Employment and Reemployment Rights Act of 1994. This law also provides that when denied those rights, an individual has a cause of action for the same remedies as provided under the federal law. This law is amended to provide that, in an action or proceeding to enforce this law, a person is not entitled to a remedy in a state action if the person has already received a remedy based no the same facts under the federal law. If a person has received a remedy in a state action under and then receives a remedy based on the same facts under the federal law, the person must reimburse the judgment debtor the value of either the federal remedy or the state remedy, whichever is less. Section 5903.02 is amended by S.B. 248, L. 2007, enacted January 6, 2009, and effective April 7, 2009, at OH ¶36-7200).

Preemployment Inquiries Law

Effective April 8, 2009, a qualified pharmacy technician under the personal supervision of a pharmacist must meet certain minimum requirements: The person must be at least 18 years of age or older; must possess either a high school diploma or certificate of high school equivalence or must have been employed prior to April 8, 2009, as a pharmacy technician; must submit to a criminal records check, and the results of the criminal records check must not show that the person was previously convicted of or pleaded guilty to any felony in this or any other state or the United States. No pharmacist may allow any person employed or otherwise under his or her control, and no person who owns, manages or conducts a pharmacy may allow any person employed or under his or her control, to be in violation of these requirements (Sections 4729.42 and 4776.02, as amended by H. 203, L. 2007, effective April 8, 2009, at OH ¶36-9000).

The Ohio State Board of Psychology has adopted a rule requiring criminal records checks on applicants for initial licensure as a psychologist or school psychologist. The Board may not grant a license to practice psychology or school psychology unless the applicant completes the records check and the board, in its discretion, decides that the results do not make the applicant ineligible for a license (Ohio Administrative Code rule 4732-9-04, adopted effective January 1, 2009, at OH ¶36-9000).

Family Medical and Parental Leave Law

Effective January 5, 2009, Philadelphia employers are required to provide their employees up to eight weeks of unpaid leave from work annually if their employees or their qualifying family or household members have been the victims of domestic abuse, sexual assault or staking to: (1) seek medical attention for physical or psychological injuries; (2) obtain help from an organization that provides services to domestic or sexual violence victims; (3) obtain counseling or therapy; (4) make safety plans, including possibly relocating to increase safety; and (5) seek legal assistance. The ordinance (Bill No 080468-A), which expires on January 5, 2010, can be found at: http://webapps.phila.gov/council/attachments/5723.pdf (PA ¶39-7000).

No Updates as of February 4, 2009

No Updates as of February 4, 2009

Family Medical and Parental Leave Law

Calling it "a fight we cannot afford to sit out," the Metropolitan Milwaukee Association of Commerce has filed a lawsuit challenging the city's paid sick leave mandate. "We believe this measure interferes with employers' rights to negotiate labor agreements with their employees and is an illegal extension of the city of Milwaukee's authority into areas of law and regulation reserved to the state," said MMAC president Tim Sheehy. On November 4, 2008, Milwaukee became the third U.S. city to pass a binding referendum requiring that all city businesses provide employees with paid sick leave. The provision, previously reported at WI ¶51-7000, was scheduled to take effect on February 10, 2009.